Presidential Proclamation Limits Green Card Issuance in Effort to Reduce Job Competition

COVID-19 Update

Date: April 23, 2020

On April 22, 2020, President Donald Trump signed a proclamation, Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak, which restricts certain categories of immigrants from entering the United States for 60 days. Below is a summary of the proclamation and an analysis of possible additional changes to come.

Timelines

The proclamation will become effective at 11:59 p.m. on April 23, 2020. It will remain in place for 60 days and may be continued as necessary. Within 50 days, the secretary of the Department of Homeland Security (DHS) shall recommend to the president whether the proclamation should continue or be modified. Additionally, Trump has called for the secretary of Labor and the secretary of Homeland Security, in consultation with the secretary of State, to review temporary visa programs and recommend other measures appropriate to stimulate the U.S. economy and ensure the prioritization, hiring and employment of U.S. workers.

The Scope of Limitations on Green Cards

The proclamation suspends the entry of any individual seeking to enter the United States as a permanent resident who:

  • Is outside the United States on the effective date of the proclamation;
  • Does not have a valid immigrant visa (a visa qualifying the foreign national for permanent residency upon entry) on the effective date; and
  • Does not have a valid official travel document (such as a transportation letter, boarding foil or advance parole document) on the effective date, or issued on any date thereafter, that permits travel to the United States to seek entry or admission.

The proclamation carves out exceptions for certain workers, such as medical professionals and other essential employees. The list of individuals exempted from the proclamation is long:

  • Lawful permanent residents (current green card holders)
  • Spouses of U.S. citizens
  • Members of the U.S. Armed Forces and their spouses and children
  • Children of U.S. citizens under the age of 21 and prospective adoptees
  • Individuals applying for a visa to enter the United States pursuant to the EB-5 immigrant investor visa program (a program under which the foreign national invests more than $500,000 in a U.S. project)
  • Individuals whose entry would be in the national interest (as determined by the secretaries of State and DHS, or their respective designees)
  • Individuals who would further important U.S. law enforcement objectives (as determined by the secretaries of DHS and State based on the recommendation of the attorney general, or their respective designees)
  • Individuals and their spouses or children eligible for Special Immigrant Visas as Afghan or Iraqi translators/interpreters or U.S. government employees (SI or SQ classification)

The proclamation expressly states that it does not limit the ability of individuals to apply for asylum, refugee status, withholding of removal or protection under the Convention Against Torture.

The distinction between foreign nationals who are outside the United States at the time of the proclamation and those who are in the country seeking to change their immigration status is important. Only those currently outside the United States are within scope. Because of this limitation on the scope, the proclamation does not materially change the current limitations; U.S. consulates have already suspended visa processing.

Possible Changes the President Will Later Consider

The proclamation is a telling preview of possible, future changes Trump may seek. He expressed the following positions within the proclamation:

  • Existing immigrant visa processing protections are inadequate for recovery from the COVID-19 outbreak.
  • The vast majority of immigrant visa categories do not require employers to account for displacement of U.S. workers and for those that do, the process is inadequate because the testing of the U.S. market may occur years before the foreign national actually receives the green card.
  • Introducing additional permanent residents when U.S. health care resources are limited puts strain on the finite limits of the health care system at a time when the United States needs to prioritize Americans and the existing immigrant population. 

And with those views as the context, Trump is calling for recommendations on measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers. Many questions remain unanswered: Might H-1B applications be delayed in processing? Might testing of the U.S. labor market have to occur multiple times during certain employment-based green card petitions? Might work authorization granted to H-4 spouses be eliminated?

Proactive Steps Employers Can Consider to Best Support Current Foreign National Talent
  • Continue processing green card petitions already underway quickly to get as far along in the process as possible
  • Renew or seek work authorization for H-1B spouses eligible for the work authorization while this remains available
  • File H-1B petitions recently selected in the lottery as soon as possible

Although permanent residents are exempt from this proclamation, employers who have U.S. permanent residents on assignment outside the United States should monitor validity of the documents those permanent residents have to support admission to the United States as a permanent resident (Do they have a valid re-entry permit? Can they rely on their permanent resident card or is that not a valid travel document based on extended absence from the United States?).

FOR MORE INFORMATION

Contact your Thompson Hine Immigration counsel to discuss any questions about this proclamation or other immigration issues impacting your workforce:

Sarah C. Flannery
216.566.5718
Sarah.Flannery@ThompsonHine.com

Staci M. Jenkins
513.352.6734
Staci.Jenkins@ThompsonHine.com

Additional Resources

Thompson Hine’s multidisciplinary COVID-19 Task Force is monitoring the latest developments and guidance from public health officials and assessing the potential impacts on our clients and their businesses. The COVID-19 Task Force page on our website provides a centralized location for recent publications, webinar recordings and resources that you may find helpful.

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