New Immigration Ban Will Have Limited Impact on Employment-Based Immigration

On April 22, 2020, President Trump signed a proclamation suspending the entry of certain immigrants (meaning those seeking to reside permanently in the U.S.) for 60 days. With respect to employment-based immigration, the proclamation is quite limited: it does not apply to those foreign nationals currently present in the U.S., those seeking to enter the U.S. in a temporary status like, for example, H-1B, those already granted lawful permanent residence, or those already in possession of a valid immigrant visa or other travel document (such as advance parole). Since most U.S. consulates around the world have already suspended routine visa services due to the COVID-19 pandemic, the proclamation will have little if any immediate impact. Employers should work with counsel to develop a strategy for any foreign nationals they believe may be impacted by this proclamation.

U.S. immigration law distinguishes between immigrants, those seeking to reside permanently in the U.S., and nonimmigrants, those seeking only a temporary stay. Nonimmigrants include all temporary visa categories including B-1, B-2, E-1, E-2, F-1, H-1B, L-1, O-1, and TN. Since the proclamation only suspends the entry of immigrants, it has no impact on temporary nonimmigrant visa holders.

Under the proclamation, foreign nationals outside the U.S. who do not possess a valid immigrant visa or other valid travel document as of 11:59 pm on April 23, 2020, are prohibited from entering the U.S. as immigrants for the next 60 days. The proclamation includes numerous exceptions including for lawful permanent residents (green card holders), spouses of U.S. citizens, children under 21 of U.S. citizens, physicians, nurses, and other healthcare professionals, those seeking to perform research intended to combat the spread of COVID-19, those entering to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 pandemic, those seeking entry under the EB-5 Immigrant Investor Program, and those whose entry is deemed to be in the national interest, among others.

If the proclamation is extended once routine visa services resume, the most significant impact will be for family-based immigration to the U.S. If that occurs, unused visas in family-based categories would trickle down to employment-based categories, potentially alleviating current backlogs for employment-based immigration.

We will provide further updates as they become available. Please contact the Immigration practice group for further information.

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