President Donald Trump’s tweet late Monday night, April 20, 2020, that he would suspend immigration temporarily “[i]n light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens,” led to widespread speculation across the business community that the president was instituting a blanket ban on immigration. As confirmed on Tuesday, April 21, by the president at a coronavirus press briefing, the executive order will be a far more limited measure with a much less dramatic impact.
The order, which the president indicated could be signed as early as tomorrow, April 22, will “pause” permanent residency or “green card” visa issuance for 60 days, after which it will be revisited. The order will not impact temporary workers, including H-1B specialty occupation workers, L-1 intra-company executives and specialized knowledge transferees from overseas, treaty visa holders including NAFTA entrants, O-1 extraordinary ability aliens, and F-1 student visa holders, who, among others, will continue to be able to obtain visas and admission into the United States. The order will similarly allow farm workers, landscapers, and other migrant workers, reported to be among the largest volume of nonimmigrant workers, to be issued visas. Even green cards will continue to be issued to “essential workers,” including health care workers. Nor will the order result in anyone currently in the United States being removed or losing their current status.
The order’s impact is particularly limited because it arises at a time when visa issuance, stateside green card interviews, and refugee admissions are already paused due to the coronavirus pandemic. US Citizenship and Immigration Services field offices in the country are closed, which means green card appointments and naturalization ceremonies are not occurring. US embassies and consulates abroad also have halted routine visa processing for tourists and workers. The United States, along with over 100 other countries worldwide, has restrictions in place for nonessential travel. Refugee admissions have been halted, and the administration is turning migrants away at the border.
The president’s authority to impose restrictions on the entry of aliens under Section 212(f) of the Immigration & Nationality Act is broad, and, as reported in our post yesterday evening, the courts have given substantial deference to the authority of the executive in this regard: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. §1182(f). The most recent Supreme Court ruling to consider the provision came in 2018, when the court upheld the third iteration of Trump’s order restricting entry of travelers from several Muslim countries. The court said the statute “exudes deference to the president in every clause.” Trump v. Hawaii, 17-965.
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