Siskind Summary – The April 22, 2020 Travel Ban
By Greg Siskind ([email protected])
The President signed a new proclamation banning the entry of a number of new classes of individuals citing the impact immigrants have on the labor market during a period of high unemployment and the need to preserve State Department resources so consular officers can service US citizens abroad. He also alleges that immigrants strain our health care system.
The order is in effect for 60 days and he cites Sections 212(f) as the main authority. He also cites other sections of the US Code that don’t really impact the scope of this order and because 212(f) is the main authority cited, it means the focus is on visas and people entering the US from abroad. Section 212(f) permits the President to bar the entry of immigrants and classes of immigrants he deems to be detrimental to the United States.
Section 1. Suspension and Limitation on Entry. – The section broadly states that the entry into the US of aliens as “immigrants” is suspended. This means people seeking to come in with existing green cards, people adjusting status to permanent residency in the US and people seeking non-immigrant visas or making changes to their non-immigrant status are NOT covered.
Section 2. Scope of Suspension and Limitation on Entry.
The suspension covers people if the following criteria are met:
- They’re outside the US on the effective date of the proclamation (11:59 pm tomorrow – 4/23).
- They don’t have an immigrant visa valid on the effective date.
- They don’t have an official travel document other than a visa.
The following categories are exempt:
- Any lawful permanent residents (green card holders)
- People seeking to enter the US on an immigrant visa as a physician, nurse, or other healthcare professional, to perform medical research intended to combat the spread of COVID, or to perform work essential to combating recovering from or alleviating the effects of the COVID-19 outbreak, as determined by DOS or DHS.
- EB-5 immigrant investors
- Spouses of US citizens
- Children under 21 of US citizens or prospective adoptees
- People who further important US law enforcement objectives, as determined by DOS or DHS
- Members of the US Armed Forces or their spouses and children
- Special Immigrants in the Iraqi and Afghani translators category
- People whose entry would be in the national interest as determined by DOS or DHS. Potentially, this could include EB-2 national interest waiver recipients.
Note that parents of US citizens, adult children and siblings of US citizens, minor children and spouses of lawful permanent residents are all barred from getting immigrant visas at consulates for the next two months. If they are here in the US, they can still seek to adjust status in those same categories if their priority dates are current (US citizens’ parents are immediate relatives and don’t need a current priority date to adjust).
Section 3. Implementation and Enforcement.
The consular officer makes the determination if an individual is eligible for one of the exemptions in Section 2. DOS and DHS may set the procedures to carry this out.
People circumventing this through fraud or willful misrepresentation shall be a priority for removal.
This order doesn’t impact people seeking asylum, refugee status, withholding of removal or protection under the Convention Against Torture.
Section 4. Termination.
The proclamation expires 60 days from tomorrow, but may be continued “as necessary”. A recommendation on continuing must be provided by the Secretary of Homeland Security (in consultation with DOS and DOL) within 50 days.
Section 5. Effective Date.
11:59 eastern daylight time on April 23, 2020.
Section 6. Additional Measures.
Within 30 days of the effective date, DOL and DHS, in consultation with DOS, shall review nonimmigrant programs and make recommendations to stimulate the US economy and ensure the prioritization, hiring, and employment of US workers.
Section 7. Severability.
If the courts throw out any part, it’s the intention to continue on with the rest or the order.
Section 8. General Provisions.
Boilerplate language regarding complying with budget and other rules.