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Administration Using Pandemic as Pretext for Restricting Immigration: Updates on Presidential Proclamations Cancelling Legal Immigration

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Compared to the rest of the developed world, the U.S. is doing a terrible job of managing the global pandemic. Statistics show that, in contrast to Germany, Italy, Spain, the U.K. and even China, which have all seen sharp reductions in confirmed cases and fatalities, the rates in the U.S. are all going the other way. This is entirely attributable to the abysmal leadership of the President and his maniacal reliance on flat-earth thinking rather than science.

Within the President’s diminished inner circle are those who seek to use the global pandemic as a pretext for pursuing their restrictionist agenda. Ever since the Covid-19 virus first arrived in the U.S. and continuously since, Trump has aimed his red meat rhetoric at foreigners, especially China. Despite evidence that viral strains from Europe were behind accelerated infection rates, Trump persisted in calling out China as the cause of the pandemic and, using anti-immigrant scare tactics from the 19th. century, warned Americans that foreigners were bringing disease to our shores.

On April 22, 2020 as the economy tumbled and unemployment climbed to historic highs, the President again targeted immigrants with the issuance of the Proclamation entitled, “Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak.” This proclamation, which was the subject of a blog post on April 23, purportedly suspended the entry of certain employment-based, family-based and other immigrants for 60 days.

The April proclamation was aimed at legally eligible immigrants awaiting interviews at U.S. embassies and consulates around the world, but exempted U.S. lawful permanent residents,
healthcare professionals, millionaire investors, spouses and minor children of U.S. citizens and many other categories of immigrants. In other words, like many actions by this President, it was illusory, just for political show, and – especially since the Embassies are all closed for interviews – had little impact.

The April proclamation did not include non-immigrant workers, although it did include a directive to the Secretaries of Homeland Security and Labor to review non-immigrant programs and prepare recommendations on “appropriate measures to stimulate the U.S. economy and ensure the prioritization, hiring and employment of U.S. workers.”

The result, a new Presidential Proclamation, which broadens the scope of the April Proclamation by including several classes of employment-authorized non-immigrants including most H’s, all L’s and some J’s. More specifically, the Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

• H-1B visa (temporary professional workers) and family members (H-4);
• H-2B visa (seasonal workers) and family members (H-4);
• J visa (interns, trainees, teachers, camp counselors, au pair, summer work-travel) and family members (J-2); and
• L visa (intra-corporate transferees) and family members (L-2)

The suspension of visa issuance is to remain in effect until December 31, 2020 and could be extended.

Notably, the Proclamation applies only to persons who: 1) are outside the U.S. on the effective date of the Proclamation (June 24), 2) do not have a non-immigrant visa that is valid on that date and 3) do not have an official travel document other than a visa (such as an advance parole document), valid on that date or issued thereafter permitting the individual to be admitted to the U.S.

***This means that for the Proclamation does not apply to any person who was in the U.S. on June 24 and who, on that date, had a valid visa in his/her passport. As to such persons, if they go abroad in the future, once consulates resume normal operations, they will not be prevented from renewing their H, L or J visas.

The Proclamation includes exemptions for any individual seeking entry to provide temporary labor essential to the U.S. food supply chain and any individual whose entry would be in the national interest as determined by the Secretaries of State or Homeland Security, or their respective designees. The “national interest” exemption will encompass applicants who:

• are critical to the defense, law enforcement, diplomacy, or national security of the U.S.;
• are involved with providing medical care to individuals who have COVID-19 and are currently hospitalized;
• are involved with medical research at U.S. facilities to help the U.S. combat COVID-19;
• are necessary to the immediate and continued economic recovery of the U.S.; or
• is a child who would “age out” of eligibility for a visa because of the proclamations

Once effective, U.S. employers will face tremendous challenges arising from the disruption of their essential non-immigrant workforce. For example, multinational corporations with offices in the U.S. will be prevented from transferring key personnel to the U.S., companies involved in technology development will face competitive disadvantage due to the unavailability of high-skilled workers, universities will suffer the loss of uniquely-qualified professors, research institutes will confront disruptions in ongoing research programs and some family members of H, L and J workers will face long periods of separation from spouses.

The President’s order is likely to be challenged in the Courts. Unless successfully challenged, employers and others will look to the letter of the Proclamation and to its exemptions and exceptions to implore U.S. consular officials to approve applications for H, L and J visas based on U.S. the “national interest.”In the meantime, as the number of Covid cases and fatalities in the U.S. go up, it remains to be seen whether the restrictionists embedded in the Oval Office will be successful in diverting responsibility for the mismanagement of the crises from the White House onto the oldest of scapegoats – the immigrant foreigner. What is most certain is that imposing limits on immigration will not create new jobs for Americans but will only hurt American employers who know from experience that immigration is a demonstrated stimulus for job-creation in this country.

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