Editor’s note: This post is published as part of Kuck Baxter’s annual sponsorship of Global Atlanta.
While it’s clear that President Trump’s widely publicized executive order last week limits legal immigration into the U.S., the action includes a wide range of exemptions and muddy definitions that make it hard for companies and families to decipher who can get in, as well as when and how.
We at Kuck Baxter Immigration have been fielding calls from clients and partners seeking a little clarity and insight for our clients and partners during a time of uncertainty.
As a reminder, immigrant visas are issued to people seeking to stay permanently in the United States, like those applying for a residency permit (green card) based on sponsorship by their employer or family.
It doesn’t affect nonimmigrant visa categories, like tourism and business travelers, though travel from much of the world to the United States remains cut off as the U.S. tries to stem the world’s deadliest outbreak of COVID-19.
What we do know is that Mr. Trump’s order is set to lock out those aspiring immigrants who are outside the U.S. on April 23, lack an immigrant visa stamp in their passport valid on that date and have not received an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil or an advance parole document).
That seems broad, but the reality is there are many exceptions to the rule. Lawful permanent residents (current green card holders) are exempt, as are foreign nationals entering as a physician, nurse or other health care professional to conduct research or work related to stemming the spread of COVID-19. Spouses of U.S. citizens and their under-21 children will also be allowed in, along with certain asylum seekers or special visa holders like those who helped the U.S. military in Iraq or Afghanistan. Foreign nationals whose presence is “in the national interest of the U.S.” or “furthers law-enforcement objectives,” both undefined terms, will also be excepted. Green card and nonimmigrant processes within the U.S. are unaffected.
The new travel ban will be implemented in two main ways, both abroad and as travelers arrive in the U.S.
First, the U.S. consulates and embassies abroad will no longer issue immigrant visas to those who do not qualify for one of the above-mentioned exceptions. Of course, U.S. consulates around the world have been closed for 45 days, and many will still be closed 60 days from now, so they wouldn’t have been able to process immigrant visa applications anyway in the short term. That renders the order meaningless in those countries for the duration of the closure of these diplomatic offices. But we do expect Mr. Trump to extend the order for political reasons.
Secondly, U.S. Customs and Border Protection officers will turn away at the border anyone who does not meet the above-mentioned exceptions.
According to the executive order, foreign nationals who circumvent these restrictions will be found removable for willful misrepresentation and fraud.
To reiterate for clarity’s sake, it’s worth it to denote the technical categories, processing and statuses that the executive order does NOT affect:
1. The processing by USCIS of petitions for foreign nationals in the United States or abroad, such as Form I-130, Petition for Alien Relative and/or Form I-140, Petition for Alien Worker;
2. The processing by USCIS of green cards in the United States for any foreign national in the U.S. who is eligible to apply for adjustment of status through Form I-485; and
3. Foreign nationals who are outside the U.S. and seeking to enter on a nonimmigrant visa, classes of which include B, H, L, B, E, F, J, TN, O, P, or R visas
And, even though the Executive Order does not currently affect nonimmigrants, it does direct the secretaries of the U.S. Department of Labor and the Department Homeland Security to review all nonimmigrant programs to assess whether any of the programs can be modified so as to “stimulate the United States economy and ensure the prioritization, hiring, and employment of United States.”
Both secretaries are to report back to the President on or about May 22,
Unlike temporary bans on travel from places like China and the European Union, this measure at its heart is a bald move to bring the “America First” mentality to the economic fallout from the pandemic — not to tackle the health crisis itself.
The White House has been clear in its communications that this is seen as an opportunity to put Americans back to work in jobs that would have been occupied by immigrants or where they were perceived to have a depressive effect on wages. As a result, companies that were already struggling
This appears to be an attempt to try to limit legal immigration through regulation, something that the administration has not been able to do through policy changes or legislation.
Global Atlanta readers requiring more detailed advice on how this change could affect your business operations, or individuals seeking guidance on your pending or future immigration case, please know that a Kuck Baxter Immigration attorney remains available to answer any questions that you have.
Visit www.immigration.net, call the Kuck Baxter Immigration office at (404) 816-8611 or email ckuck@immigration.net to speak to one of the firm’s experienced immigration attorneys.
Editor’s note: This post is published as part of Kuck Baxter’s annual sponsorship of Global Atlanta.