What visa and green card processes will be impacted by Trump's Executive Order "Suspending Immigration"?
Trump’s announcement by tweet to “suspend immigration into the United States” by executive order has applicants for visas and green cards in all categories concerned about what this means for them.
In the evening of Monday, April 20, 2020, President Trump announced his intention “temporarily to suspend immigration to the United States”. The Tweet read as follows:
“In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”
Although the actual executive order has not yet been signed and released, details of what it will contain emerged in different statements from White House staffers and from the president himself. We will summarize those below.
Based on the wording of the Tweet, it seems like the ban would block all immigration to the U.S., on a “temporary” basis. Since Trump is constantly focused on getting re-elected in November 2020, he calculated that this would excite the part of his political base consisting of workers who believe that immigrants are competing for their jobs and driving down wages. However, the business community part of Trump’s political base quickly notified him that to do so would harm their interests, namely the high-tech industry, which relies heavily on temporary college-educated workers under the H-1B visa program, the agriculture industry, which depends on temporary agricultural workers under the H-2A visa program, and the meat processing industry that depends on temporary workers under H-2B visas. Trump may also have been reminded that physicians on J-1 and H-1B visas and nurses on TN visas are working on the frontline in hospitals treating patients suffering from Coronavirus and biomedical researchers under H-1B visas and J-1 visas are conducting the research to find medicines to stop the Coronavirus.
By late afternoon on Tuesday, April 21, 2020, when President Trump made his daily television appearance to discuss what his administration is doing to combat the Coronavirus Crisis, President Trump explained that the executive order would not affect any applications for temporary visas, but rather would place a 60-day “pause” on people seeking permanent residence in the U.S., and he would decide, at the end of the 60-day period, whether to renew the pause. He also said that the executive order was then being written, and he would likely sign it on Wednesday.
This means that people applying for temporary visas like the E-2, E-1, L-1, H-1B, O-1, P-1, and so forth, would not be impacted.
Other details have emerged from news outlets that the executive order will seek to delay the processing of green cards for immigrants being sponsored by their U.S. employer or by their legal permanent resident spouse or parent. However, it will not seek to delay the processing of green cards for the spouse and children of U.S. citizens, but it is not clear yet whether it will seek to delay the processing of green cards for the parents or siblings of U.S. citizens. This would also imply that Trump’s executive order would not impact applicants for K-1 fiancée or K-3 spouse visas, since these are both temporary visas and visas for the intending spouse or spouse of a U.S. citizen.
It is also not clear whether it will impact EB-5 investors, since they are not being sponsored by a U.S. employer to work in the U.S., but they are in an employment-based category, which Trump might not distinguish from the other employment-based categories. EB-5 investors who have the conditional green card or who have removed conditions from their green card will not at all be affected.
Thease unclear areas will become clearer once the final executive order is signed.
I anticipate that this executive order will be challenged, and hopefully blocked by federal courts, on multiple legal grounds:
- Harm from retroactive application. That it harms applicants already in the immigration process by retroactively applying to their process a rule that was not in effect at the time when their application was filed.
- Does not achieve its stated purpose. That, in attempting to reduce competition with U.S. workers for jobs in the next 60 days, it does not target applicants for temporary visas, who would receive work visas to begin working in the next 60 days, but rather it targets people who are in a longer green card process that will take well beyond 60 days to complete.
- Overbroad impact. The executive order has a negative impact on immigrants who are not the source of the problem that the executive order aims to solve. In other words, delaying the green card process of the under-age children of permanent residents does not further the cause of protecting U.S. workers from competition with foreign workers for jobs, since the under-age immigrant child would not be able to take a job, anyway.
- Exceeding executive authority. The executive order exceeds the executive branch’s authority by refusing to execute valid laws, already in effect, based on policy decisions of the executive branch not approved by Congress and not based on any special authority granted to the executive branch by Congress.
We will provide a further updates on the executive order, once it is issued and once legal challenges to the executive are filed in federal court.
For factually sourced news stories on this topic, please see the following articles:
New York Times
Trump Halts New Green Cards, but Backs Off Broader Immigration Ban
Vox
Trump’s executive order to stop issuing green cards temporarily, explained
CNN
Trump says immigration order will apply only to green cards and will last 60 days
Politico
Trump's surprise immigration ban expected to include major exemption
Newsweek
Trump's Executive Order Suspending Immigration Will Only Apply To Green Cards