COVID-19 Immigrant Entry Ban: So Much Sound and Fury
Yesterday, the White House issued a Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak. The blog post will explain the changes brought to the US immigration system by the Executive Order (“EO”). Additionally, it will analyze the EO’s effect on employers and their employees seeking to immigrate visa a job and explain why this EO will have little to no effect on the processing of employment immigration cases or issuance of green cards to employment based immigrants.
Section 1 of the EO restricts the entry of immigrants to the United States. For purposes of this EO, an immigrant is an individual who is outside the United States, has reached the end of the petitioning process, and is entering the United States to permanently resettle. Foreign nationals who use immigrant visas to enter the United States are issued Alien Registration Card or “Green Cards.” Individuals affected by the EO that have not been issued immigrant visas will be denied an immigrant visa and/or entry to the United States.
Section 2 of the EO lists individuals excluded from the entry ban. The EO excludes anyone who is already in the United States, has already been issued a green card or immigrant visa. Additionally, this EO does not prevent the immigration of spouses and children/adoptees of US citizens, physicians, nurses, or medical researchers working on COVID-19, a spouse or child of a member of the Armed Forces, or Iraqi/Afghani Translators. Finally, individuals seeking asylum or refugee status in the United states are unaffected by this EO. Employment based immigrants, Diversity Visa Lottery winners, and individuals seeking to immigrate as the parents of US citizens are barred from issuance of an immigrant visa and/or entry into the United States under the EO.
The reason the EO will have little to no effect on employment-based immigrants and their employers is because very few employment-based immigrants use an immigrant visa to obtain a green card. There are two ways for an immigrant to obtain a green card: immigrant visa and adjustment of status. If an immigrant is outside the United States, he or she applies for an immigrant visa at a US embassy or consulate abroad. If the immigrant is in the United States lawfully such as a student or temporary worker, the individual applies to adjust status with the US Citizenship & Immigration Service.
The EO bans the issuance of employment-based immigrant visas. It does not prohibit the issuance of a green card through adjustment of status. The EO has a negligible effect on employment immigration because the vast majority of people who immigrate through a job are in the Unites States and file to adjust status. They don’t use immigrant visas. Obtaining a green card through employment is a long, complicated, and costly process. Because of the time and cost involved, the vast majority of individual who immigrate through employment are employed at their petitioning employer while they process for their green card. Employers use temporary worker visas such as H-1B, TN, L-1, or similar visas while the green card process runs. While consular processing of an immigrant visa is available to a temporary worker visa holder, it is faster, cheaper, and easier to adjust status.
Sine the EO does not bar the entry of temporary working visa holders and the vast majority of employment-based immigrants obtain their green cards via a process that is unaffected by the EO, the EO will have little to no effect on employment-based immigrants and their employers. While it appears that the EO does not affect the vast majority of employment-based immigrants, employers and their foreign national employees should seek advice and analysis of their individual facts from competent counsel.