On April 22, President Trump issued an executive order blocking some immigrants from entering the United States. The stated reason for the entry restrictions is to bolster the U.S. economy and prevent immigrants from entering and starting jobs. The order is slated to last 60 days, and only applies to individuals entering as immigrants. Many people are deeply concerned about how this order will affect them and their loved ones, especially because the order has been widely described as a ban on all immigration. It is not. In fact, it is a relatively narrow ban for a short period of time, primarily for political purposes and which is extremely unlikely to make even a slight difference in the U.S. labor market. The primary reason for this is that it mostly impacts those entering on preference-category immigrant visas, most employment-based immigrant visas, and all diversity visas.
Some important features of the executive order are:
- It applies only to people entering as immigrants, in contrast to temporary non-immigrants. It therefore impacts someone applying for an immigrant visa who is intending to enter the US to receive a green card.
- This category excludes U.S. Citizens, green card holders, any temporary visa non-immigrants, anyone applying for green cards within the United States (adjustment of status), and most other immigrants applying for miscellaneous benefits within the United States, such as work permits and temporary statuses like DACA
- The executive order, like previous executive orders that rely on INA Sec. 212(f), relates to the entry into the United States, and does not impact most individuals who are inside the United States already.
- Also excluded are immigrants with immigrant visas which have already been issued, who should still be able to enter.
- It explicitly excludes medical professionals “seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees; and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien”
- It excludes EB-5 immigrant investors
- It excludes spouses and children of U.S. Citizens
- It has several other minor but expansive carve-outs that exempt many others, or could allow for a waiver-like process
It is important to keep in mind that most embassies and consulates are closed and not issuing immigrant visas. They are not very likely to reopen in the short term. Because of that, the potential group of immigrants included here is quite small. Those already issued immigrant visas are explicitly excluded from the order. Those who are awaiting a visa are already being delayed by embassies and consulates being closed.
The order relies on the same provision for most of its statutory support, which the Supreme Court has already upheld in the context of prior travel bans:
Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.INA Sec. 212(f)