Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated April 22, 2020: In live remarks during an April 21, 2020 coronavirus task force press briefing, the president provided more detail on the scope of the entry restrictions in the new executive order. Specifically, he clarified that entry restrictions will apply only to individuals “seeking permanent residency (Green Card Processing).” The initial duration of the executive order will be for 60 calendar days. The initial executive order will not impose any entry restrictions upon individuals seeking to enter the United States to work on a temporary basis (nonimmigrant employment-based visa holders). The executive order will contain provisions that allow the president to extend the duration of the initial executive order or make modifications. A draft executive order has not yet been published.
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On Monday, April 20, 2020, the president announced a possible temporary suspension of immigration to the United States as a result of the COVID-19 pandemic, tweeting “[i]n light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”1 The elements of the possible order and the effects of potential prohibitions on incoming workers have not been announced and remain unknown. At the time of publication, the administration had not yet issued the executive order, announced treatment of workers currently in the United States, or explained whether the order will contain exemptions for workers with approved petitions waiting for visa processing at currently closed consulates abroad. This is a developing story and we will keep you posted as details are available.
Some reports suggest a temporary moratorium on employment-based visas may be possible, as indicated by the president’s stated aims to safeguard jobs for U.S. workers as the economy recovers from pandemic-related furloughs and rising unemployment. It remains unclear whether the order will contain exemptions for essential (e.g., health and agricultural) workers. It is also unclear how the administration will treat employees currently in the United States with respect to extensions of status or the permanent residence (green card) process, an aspect of the process that we are monitoring.
The potential immigration suspension could build on the four currently implemented travel restrictions prohibiting the entry of most foreign nationals (regardless of citizenship) who have been physically present in China, Iran, the European Schengen Area, the United Kingdom, and Ireland within 14 days of planned entry into the United States.2 While no definitive information on content has been announced, the administration may consider additional country-by-country restrictions to its current entry restrictions.
As a result of the COVID-19 pandemic, immigration to the United States has already effectively been placed on hold, with the U.S. Citizenship and Immigration Services (USCIS) offices closed to the public in the United States, and consulates abroad largely closed (with exceptions for emergency appointments). On April 8, 2020, the U.S. Department of State did announce it would help to facilitate medical worker immigration:
[m]edical professionals with an approved U.S. non-immigrant or immigrant visa petition (I-129 or I-140 with a current priority date, or similar) or a certificate of eligibility in an approved exchange visitor program (DS-2019), particularly those working to treat or mitigate the effects of COVID-19, should review the website of their nearest U.S. embassy or consulate for procedures to request an emergency visa appointment.
Restrictions on non-essential travel via the U.S.-Canada and U.S.-Mexico land borders continue to remain in effect. On Monday, the Department of Homeland Security also announced that the United States, Mexico, and Canada had each agreed to extend restrictions on non-essential travel across their shared borders for 30 additional days.
Please note that this is a developing story. We encourage employers to maintain awareness of new restrictions as they are announced and how they may affect nonimmigrant and immigrant processing for employees. We are monitoring issuance and content of the potential order and will update with new information as soon as it becomes available.
2 See Proclamation 9984 of January 31, 2020 (Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus), Proclamation 9992 of February 29, 2020, Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus; Proclamation 9993 of March 11, 2020 (Proclamation - Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus), Proclamation 9996 of March 14, 2020 (Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus).