United States: Immigration in the news: Latest COVID-19 related Executive Order on immigration impacts immigrant visa applicants abroad

In brief

On 22 April 2020, the President signed a Proclamation to suspend the issuance of immigrant visas, i.e., non-temporary visas, for the next 60 days to individuals who are currently outside of the United States and do not currently have an immigrant visa. The proclamation is not a broad restriction on all immigration that many feared might be the case from comments earlier this week. Since Embassies and Consulates remain closed, the status for immigrant visa applicants abroad remains unchanged. Yet, as we saw with the 2017 Buy American and Hire American Executive Order, the most recent Proclamation, intended to protect the US workforce amidst the COVID-19 related economic downturn, could have a much wider impact beyond the narrow scope of the proclamation itself.

Who is impacted?

The Proclamation only directly applies to individuals who: (i) are outside the United States on the effective date of the proclamation; (ii) do not have an immigrant visa that is valid on the effective date of the proclamation; and (iii) do not have an official travel document other than a visa, such as a transportation letter, an appropriate boarding foil, or an advance parole document, that is valid on the effective date of the proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission. The Proclamation does not directly apply to foreign nationals in the United States.

Who is excluded?

The proclamation does not apply to individuals who are outside of the US and are already lawful permanent residents or immediate relatives of US citizens. There are also exceptions for individuals seeking an immigrant visa as a health care worker, an EB-5 investor, and others whose admission to the US may be deemed in the national interest.

What is the effective date and how long will the suspension last?

The Proclamation is effective on 11:59 pm EST on 23 April 2020. The validity of the Proclamation is 60 days and is subject to renewal by the President at the end of the 60-day period.

Are there any other implications?

The Proclamation leaves open key questions that may be top of mind for foreign national employees. 

  • The Proclamation is silent about how this will apply to individuals who are currently present in the United States in valid status and are going through the permanent residence process. The proclamation asks the DOS and DHS to implement the proclamation as appropriate. DOS could shut off the supply of green cards in the next two months by making immigrant visa numbers unavailable in the May and June Visa Bulletins. If so, the adjudication of pending Adjustment of Status Applications would be delayed and new Adjustment of Status could not be filed for the next 60 days.   
  • The Proclamation does not affect those in the United States in non-immigrant status but it does call on the various departments, DOL, DOS, and DHS, to review non-immigrant visa programs within 30 days and recommend other measures to stimulate the economy. It is unclear what actions may be taken at this time.

What actions should my company take?

  • Communicate with your foreign-national employees. Anxiety amongst foreign nationals is high as a result of COVID-19 travel restrictions and recent immigration announcements. Consider holding a Town Hall to discuss immigration updates and provide a forum for your employees to ask questions.
  • File Adjustment of Status Applications before the end of the month. Given that the ability to file Adjustment of Status applications could be delayed for at least 60 days, it is important to file all applications that are permitted under the April visa bulletin before the end of this month.
  • For your employees in the United States on non-immigrant work visas that will expire within the next six months, consider filing extension petitions with USCIS soon, given that recommendations will be forthcoming regarding the non-immigrant visa program. Securing your employees' ability to remain in the United States under their current non-immigrant status will ease their concerns.

Please contact your Baker McKenzie attorney for more information.

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