Trump Issues Executive Order Halting Immigrant Visa Processing; EB-5, Spouses, Healthcare Exempted

On April 22, days after sending an ambiguous tweet that created mass confusion among immigrant groups, President Trump signed a “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” Notably, this Proclamation is effective only regarding immigrants who (1) are outside the U.S. as of April 23, (2) do not have valid immigrant visas already, and (3) do not have valid official travel documents.

Existing lawful permanent residents are beyond the scope of the order as are all applicants for adjustment of status. These processes would seemingly continue without interruption.

The Proclamation also includes nine categories of exemptions, including EB-5 investors. Accordingly, EB-5 investors awaiting visa appointments abroad would be expected to receive immigrant visa appointments – perhaps relatively faster than before given lesser consular demands – once operations resume following temporary cessation due to COVID-19.

Additional notable exempted categories include spouses and minor children of U.S. citizens, physicians and other healthcare workers performing work essential to fighting COVID-19, discretionary waivers in the national interest, and asylees / refugees. Parents of U.S. citizen petitioners are not exempted. The ban largely forecloses all of the family-based preference categories, and EB-1 through EB-3. EB-4 is largely affected, although certain translators are exempted. Such individuals, if in the U.S., may however be able to apply for adjustment of status.

The Proclamation does not affect visa issuance with respect to nonimmigrants. However, it does direct administration officials to review “nonimmigrant programs and [to recommend] other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” Such language is substantially similar to that included in Trump’s Buy American Hire American Executive Order, which was enacted mere months after inauguration. The effect of those measures on nonimmigrant visa petitions through formal policymaking remains mixed.

The Proclamation goes into effect on April 23, 2020 at 11:59 PM and is in effect for 60 days. However, many immigration attorneys expect it to be renewed, perhaps indefinitely, through the end of the Trump Administration.

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