On April 22, 2020 President Trump signed a new proclamation (Executive Order) that suspended the entry of certain categories of foreign nationals from entering the United States. The text of the order may be found here –
The suspension order is for a 60-day period and is subject to extension at the President’s discretion after consulting with the Secretary of the Department of Homeland Security. The basis for this Executive Order is predicated on the ostensible “protection” of U.S. workers during a period of high unemployment and an argument that newly admitted immigrants would cause undue strain on our burdened health care system.
CAN THE PRESIDENT LEGALLY SUSPEND IMMIGRATION INTO THE U.S.?
Yes, the law does grant this authority to the President. Under Section 212(f) of the Immigration and Nationality Act the President of the United States may bar the entry of classes of immigrants he deems to be detrimental to the security and interests of the United States. It is significant to note that INA section 212(f) only covers the entry of foreign nationals into the U.S.
The suspension of entry applies only to foreign nationals outside the U.S. who do not have an Immigrant Visa (which allows permanent entry in green card status) validly issued prior to April 22, 2020 or lack an official travel document other than a visa on that date. As such, the suspension of entry does not apply to foreign nationals seeking to temporarily enter the U.S. on visas to work, attend school, attend business meetings or engage in tourism. The order applies only to those seeking to enter the U.S. permanently, which requires a green card.
It is also important to emphasize that INA section 212(f) has no bearing on any foreign national already present in the U.S. who may seek to change legal status or pursue a green card through the U.S. Citizenship and Immigration Services (USCIS).
WHO IS EXEMPT?
The following categories of foreign nationals are exempt from the Executive Order:
- Any lawful permanent residents (green card holders)
- People seeking to enter the US on an immigrant visa as a physicians, nurses, or other healthcare professionals, to perform medical research intended to combat the spread of COVID, or to perform work essential to combating recovering from or alleviating the effects of the COVID-19 outbreak, as determined by DOS or DHS.
- EB-5 immigrant investors
- Spouses of US citizens
- Children under 21 of US citizens or prospective adoptees
- People who further important US law enforcement objectives, as determined by DOS or DHS
- Members of the US Armed Forces or their spouses and children
- Special Immigrants in the Iraqi and Afghani translators category
- People whose entry would be in the national interest as determined by DOS or DHS. Potentially, this could include EB-2 national interest waiver recipients.
A few categories are notably absent from the exemption list. For example, parents of US citizens, adult children, siblings of US citizens, minor children, and spouses of lawful permanent residents living abroad are all subject to the 212(f) suspension of entry.
Levine & Eskandari attorneys will continue to monitor this issue and report on any significant new developments.
For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine or Layli Eskandari Deal of the law firm of Levine & Eskandari, LLC at (770-551-2700).
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