President Trump’s Proclamation Suspending Immigration

On June 22, 2020, President Trump issued a proclamation expanding and extending his April 22 proclamation that suspends some immigration from outside the U.S, which was due to expire on June 23. The new June proclamation extends the initial green card ban in the April proclamation until December 31, 2020, and includes additional significant restrictions on several categories of temporary guestworker visas. The president claimed that suspending immigration would help American workers and aid the economic recovery  in the wake of the COVID-19 pandemic. While many different kinds of immigrants will be affected, the June proclamation will have particularly harsh effects for those trying to reunite with family members in the U.S., diversity visa recipients, and high-skilled immigrants. It could prevent hundreds of thousands of family members and temporary workers from coming to the U.S.

The June proclamation’s extension of the April proclamation went into effect immediately on June 22, 2020 and its new restrictions on immigration go into effect on June 24, 2020. The entire set of immigration restrictions were set to last until the end of 2020. On December 31, 2020, President Trump extended the restrictions through March 31, 2021.

On June 29, an amendment to the proclamation was announced to clarify that the ban would apply to those applying from abroad who have a valid nonimmigrant visa and are seeking to adjust to one of the restricted temporary worker categories. On August 13, the State Department issued updated guidance to exempt certain H-1B, L-1, H-2B nonimmigrant workers and certain J-1 exchange visitors.

On October 1, a federal judge in California blocked the proclamations nonimmigrant restrictions for employees of companies associated with the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Retail Federation, and Technet.

Employment-based visa categories affected

The initial April 22 proclamation temporarily suspended entry for many prospective immigrants applying for employment-based green cards from abroad. The June 22 proclamation extends these restrictions until December 31, 2020, and includes additional suspensions for a number of prospective temporary nonimmigrant worker categories.

The June 22 extension and expansion applies to individuals seeking to enter the U.S. from another country through the following immigrant and nonimmigrant work visa programs:

Employment-Based Permanent Immigrant Visas

• EB-1 visas for outstanding researchers and scientists, executives, and those with extraordinary talent in their field.
• EB-2 visas for those with an advanced degree or an exceptional ability in their field.
• EB-3 visas for skilled workers, professionals with college degrees, and some lower skilled workers.
• EB-4 visas for religious workers, broadcasters, translators, and other categories of “special” immigrant workers.

Employment-Based Temporary Nonimmigrant Visas

• H-1B visas for those working in a specialty occupation requiring the theoretical and practical application of a body of highly specialized knowledge.
• H-2B visas for nonagricultural seasonal guestworkers.

• L visas for executives or managers who already have positions in the foreign office of an American company seeking to transfer to the United States.

• Certain J visas for interns, trainees, teachers, camp counselors, au pairs, and those participating in the summer work travel program.

Family-based visa categories affected 

The initial April 22 proclamation temporarily suspended entry for many prospective immigrants applying for family-based green cards from abroad. The June 22 proclamation extends these restrictions until December 31, 2020, and includes additional suspensions for certain family-based nonimmigrant programs.

The June 22 extension and expansion applies to individuals seeking to enter the U.S. from another country through the following immigrant and nonimmigrant family visa programs:

Family-Based Permanent Immigrant Visas

• IR-5 visas for the parents of U.S. citizens

• F1 visas for the unmarried adult children of U.S. citizens

• F2 visas for the spouses and unmarried children of U.S. lawful permanent residents (green card holders).

• F3 visas for married sons or daughters of U.S. citizens.

• F4 visas for adult siblings of U.S. citizens.

Family-Based Temporary Nonimmigrant Visas

• H-4 visas for spouses and minor children of H-1B and H-2B workers.

• J-2 visas for spouses and minor children of J-1 workers and trainees.

• L-2 visas for spouses and minor children of L-1 intracompany transferees.

Other visa categories affected

The April 22 proclamation and the June 22 extension and expansion apply to the following other permanent visa programs:

Other Permanent Immigrant Visas

• Diversity visas for those who meet certain criteria and live in countries with relatively low rates of immigration to the U.S. 

• Visas for victims of certain crimes and their spouses and children.

Who is exempt from the proclamation? 

A number of broad exceptions are included in both proclamations. The June 22 proclamation extends the same exceptions initially included in the April 22 proclamation for prospective green card applicants, and it includes additional exemptions for temporary nonimmigrant visa holders. Neither proclamation will impact those applying for renewals or adjustments of status from within the United States.

The following permanent immigrant visa applicants are exempted from the restrictions:

Employment-Based Immigrant Visas

• EB-5 visas for those who invest significant funds into U.S. job creation or capital.

• Visas used by health care professionals and others who perform essential work combating, recovering from, and alleviating the effects of COVID-19.

Family-Based Immigrant Visas

• IR-1 and CR-1 visasfor spouses of U.S. citizens.

• IR-2 and CR-2 visas for unmarried minor children (under 21) of U.S. citizens.

• IR-3 and IR-4 visas for adoptees.

• Children under 21– The proclamation includes a specific directive to the Secretary of State and DHS to exempt children seeking green cards in the F2 family preference visa category. These visas are eligible to children of lawful permanent residents who are under the age of 21. However, if an eligible child turns 21 while their visa is being processed, the child has “aged out” and is rendered ineligible.

Humanitarian Visas

• Afghan and Iraqi Special Immigrant Visas who worked abroad for the U.S. government as translators or in other roles.

• Refugees, Asylees, and others seeking protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.

Other visas

• Members of the U.S. Armed Forces and their spouses and children.

• Individuals who can help further important law enforcement objectives.

• Foreign nationals whose entry the Secretary of State or the Secretary of Homeland Security deem to be in the national interest.

The following temporary nonimmigrant visa applicants are exempted from the restrictions:

• All those applying to nonimmigrant visa categories not listed above, including F-1 visas for students, H-2A visas for agricultural guestworkers, certain J visas for physicians, professors, university students, government visitors, scholars and specialists. Many other nonimmigrant categories are also exempted.
• Spouses and children of United States citizens.
• All those seeking to come to the U.S. to work in the food supply industry.
• All those whose entry is determined by federal agencies to be in the national interest of the United States, including:
  • • Those who are critical to the national security or diplomacy of the U.S.
    • Those who are involved in the provision of medical care to hospitalized COVID-19 patients or in the provision of medical research to help the U.S. combat COVID-19.
    • Those who are necessary to facilitate the economic recovery of the U.S. The proclamation does not define which prospective nonimmigrants would fall into this category.

On August 13, State Department guidance that established a number of additional nonimmigrant exemptions for the following applicants:

• All those H-1B and L-1 employees seeking to return to the U.S. to “resume ongoing employment” would be exempted from the proclamation.
• All those H-1B workers who are “technical specialists [and] senior level managers,” and or whose travel is deemed “necessary to facilitate the immediate and continued economic recovery of the United States.”
  • • The five listed criteria for this H-1B “economic recovery” exemption are: The H-1B employer has a “continued need” for the work; the employer would otherwise suffer financial hardship; the employee contributes to a “critical infrastructure need”; the employee is paid 15% more than the prevailing wage; and the employee has “unusual expertise” in the field. H-1B recipients must meet two of these five benchmarks to be eligible for the exemption.
• All those H-2B employees whose “travel is necessary to fulfill the immediate and continued economic recovery of the United States.”
  • • The three listed criteria for this H-2B “economic recovery exemption” are: The H-2B petitioning employer has a “continued need” for the work; the employer would otherwise suffer financial hardship; and the employer has previously employed and trained the H-2B recipient. H-2B recipients must meet two of these three benchmarks to be eligible for the exemption.
• All those J-1 applicants traveling as an au pair or whose travel is connected to U.S. government activity or is deemed to be in the national interest.

What additional restrictive measures are included in the proclamation?

The June 22 proclamation directs a number of federal agencies to pursue additional immigration restrictions, via federal regulation or otherwise. These measures will take time to develop and do not go into effect immediately.

The proclamation directs agencies to pursue the following additional restrictions:

The Department of Homeland Security (DHS)

• DHS is directed to prevent immigrants within the United States who have been declared deportable or who have been subject to final orders of removal from an immigration judge from obtaining work authorization.

• The agency is also directed to ensure H-1B visa recipients do not disadvantage United States workers. It has been reported that these restrictions could include changing who receives an H-1B visa such as providing visas to those who will be earning the highest salaries rather than allocating visas through a lottery process.

The Department of Labor (DOL) 

• DOL is directed to consider additional regulations to ensure that EB-2 and EB-3 worker visas and H-1B specialty occupation temporary visas do not disadvantage U.S. workers.

The Department of Health and Human Services (HHS)

• HHS, via the Center for Disease Control and Prevention (CDC), is directed to provide guidance to the Secretary of State and the Secretary of DHS on ways to reduce the risk that prospective immigrants might transmit COVID-19.

How many prospective immigrants will be affected by the proclamation?

Three factors make it difficult to determine exactly how many – and to what extent – individuals will be affected by the June 22 proclamation.

1. The number of those excepted from the proclamation ultimately depends on how many employment-based workers are determined by the administration to be performing “essential work” countering COVID-19 or work that is in the “national interest” of the United States.
2. Even with the June 22 extension, it is unclear how long the proclamation will remain in place.
3. Other, overlapping, restrictive immigration measures are being implemented simultaneously in response to the COVID-19 pandemic.

However, we can use recent immigration trends and relevant data to approximate a total number of affected individuals and clarify which immigrant visa categories are likely to be particularly impacted.

The United States issues approximately 1.1 million new green cards each year. Of those annual new green cards, approximately 550,000, or 50%, are issued to visa categories affected by Trump’s proclamation. But the proclamation only affects those applying form abroad, and many of the 550,000 individuals in the listed categories are adjusting their status from within the United States. Filtering by those in affected categories who apply from abroad, we can estimate the proclamation will impact an estimated 350,000 individuals annually, or approximately one- third of the total number of new permanent immigrants.

Out of this group of 350,000 impacted individuals, the three most affected immigrant visa categories are:

• 105,000 F2 Visas for spouses and children of Lawful Permanent Residents (green card holders.
• 55,000 F4 visas for adult siblings of U.S. citizens.
• 44,000 Diversity Visas for those who meet certain criteria and live in countries with relatively low rates of immigration to the U.S.

The United States admits approximately 3.9 million people each year on nonimmigrant visas for temporary workers, trainees, and their families. Of those annual nonimmigrant admittances, the June 22 proclamation would affect approximately 525,000 prospective applicants should it be extended through the end of the government’s fiscal year in 2021.

How will the proclamation impact family migration and family reunification? 

While the administration stated that the April 22 proclamation was targeted at “immigrants who present risk to the U.S. labor market during the economic recovery following the COVID-19 outbreak,” the visa categories affected largely include individuals seeking to join their family in the United States. While the proclamation will still make a significant impact on employment-based (EB) green card categories, many EB applicants apply from within the U.S. and are therefore exempt from the order. Overall, should the proclamation continue to be extended beyond 2020, approximately 280,000 family-based immigrants could be affected annually, based on the 2018 Department of Homeland Security Yearbook of Immigration Statistics. That is ten times more than the approximate number of affected employment-based immigrants (28,000) and humanitarian immigrants (0) combined. Additional nonimmigrant family categories included in the June 22 expansion further targets family-based immigration.

Impact on Annual Green Card Levels

Source: 2018 DHS Immigration Yearbook

Who faces the most immediate harm? 

Two groups of immigrants – diversity visa recipients and H-1B immigrants – will be most immediately harmed by the June 22 proclamation. As the Trump administration continues to extend the proclamation, more and more prospective visa applicants may lose their ability to immigrate entirely and hardships on families and employers will mount.

While the proclamation prevents prospective green card holders living abroad from receiving a visa and traveling to the U.S., it should not prevent individuals from beginning their applications, going through initial processing, or receiving their “priority dates” and entering the visa backlog. Applying for immigrant visas from overseas is generally a multiyear process. Individuals in certain countries may face a lengthy backlog even after various work authorizations, medical examinations, visa interviews, and other procedures are completed. The suspension of routine consular visa processing in the midst of the COVID-19 pandemic is already causing additional delays for these applicants, and these delays may be exacerbated by the April and June proclamations. 

Diversity Visa Recipients:

The proclamation will have an out-sized effect on Diversity Visa (DV) recipients (also known as the green card lottery). The Diversity Visa program allows individuals who meet specified educational and employability standards and who were born in countries with relatively low rates of immigration to the U.S. to enter a computerized lottery which grants 55,000 green cards each year. Beginning in May each year, the Department of State notifies the lottery winners and allows them to begin processing their green cards. Successful applicants must act quickly because if their applications are not processed and issued by the end of the following fiscal year, they lose all access to their visa, are no longer authorized for a green card, and must restart the application process.

Around 95% of diversity visa applicants apply from abroad, meaning the vast majority of applicants are impacted by the June 22 proclamation. The period the proclamation is in effect comes during the time when many Fiscal Year (FY) 2020 lottery winners are scrambling to process and access their visas before the fiscal year – and their opportunity to immigrate – expires on September 30. Due to the June 22 proclamation, the Diversity Visa program for the remainder of Fiscal Year (FY) 2020 will likely be entirely eliminated.

The diversity visa is especially valuable to immigrants from continents such as Africa that do not have many opportunities to immigrate via other visa categories. In FY 2018, for example, the U.S. welcomed 17,318 African diversity visa recipients, the most of any region in the world.

Recent H-1B Lottery Winners:

The proclamation will also have a significant effect on many of those whose petitions were recently selected in the March, 2020 H-1B lottery. These 85,000 high-skilled workers have recently agreed to terms with their employers, completed the rigorous application process proving their employment will not adversely affect the U.S. workforce, and have been successfully selected in the annual lottery. Most were expected to start their new jobs in America by October 1, in many cases filling critical shortages in the labor market. The proclamation will prevent those who applied from abroad from coming until the new year at the earliest, unless individuals fall within an exception from the proclamation. Employers who were planning on these workers will face uncertainty about how to move forward, whether they can find a qualified worker, and for how long they can expect to be without needed assistance.