Travel Ban Executive Order and Attorney Commentary
By Chris M. Ingram, LL.M., ESQ
Ok, I have now reviewed a copy of the April 22nd, 2020 Executive Order (EO) Travel Ban. Please note that this EO has just been published and so my comments are based upon an initial reading and interpretation, which could evolve over time as more commentators weigh in. I will cite extracts from the actual EO itself so you can read the same and draw your own conclusions.
Focus of Travel Ban
The first and perhaps most important aspect of this EO is that it appears not to apply to any and all work visa applications. Such as the F-1, O-1, P-1, E-1, E-2, E-3, L-1, H-1B, R-1, TN, etc., visas and visitor-based visas.
Instead, the EO Travel Ban appears to be exclusively focused on pausing the entry of aliens currently living outside the U.S. who do not currently have permanent residency (green cards) to re-enter; and those who may have applicants pending or seeking to make applications in the future. If this interpretation is indeed correct then the EO, for the most part is practically toothless.
For those aliens who are have recently applied for permanent residency, depending on a number of factors, for example, where you are currently in the overall application process; for EB-1(Extraordinary Aliens) green card applicants, EB-2 (Advanced Degree Aliens) applicants, and EB-3 (Skilled Workers) applicants, these types of green card applications can take a number of years to complete, start to finish, in any event, So an EO pausing the issuance of these green card applications for 60-days or so is not such a big deal. Indeed, U.S. Immigration will continue to accept new applicants and continue processing these applications and the ones they currently have in the normal way, but will not issue the actual green cards until the EO is lifted. So, pretty much business as usual, thank God.
For those green card applicants living outside the U.S. who have already jumped through all of the application hurdles and were very close to getting their green cards issued e.g., within the next 60-days, then an additional 60-day delay is certainly very frustrating, but not overly detrimental, since to get this close they would be the end of a very long process indeed.
So, bottom line, if you’re thinking about beginning the process of applying for a green card, then the EO should have no effect on your application whatsoever since the process will take far longer than 60-days anyway. To be honest, if you qualify for any of the alphabet visa types above you can come in anyway, once the U.S. Consulates re-open and apply for your green card in the usual way.
The main clauses of the EO are as follows: –
“Sec. 2. Scope of Suspension and Limitation on Entry. (a) The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who:
(i) are outside the United States on the effective date of this proclamation;
(ii) do not have an immigrant visa that is valid on the effective date of this proclamation; and
(iii) do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.”
On my plain reading of the above section is that it appears apply to all aliens currently outside the U.S. and not those currently living and working inside the U.S. under some form of work authorization or visa.
Exemptions
“(b) The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to:
(i) any lawful permanent resident of the United States;
(ii) any alien 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;
(iii) any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
(iv) any alien who is the spouse of a United States citizen;
(v) any alien who is under 21 years old and is the child of a United States citizen, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
(vi) any alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee;
(vii) any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;
(viii) any alien seeking to enter the United States pursuant to a Special Immigrant Visa in the SI or SQ classification, subject to such conditions as the Secretary of State may impose, and any spouse and children of any such individual; or
(ix) any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
This section suggests that pending and new EB-5 Self-sponsored green card applications would be exempt and thus processed in the usual way.
(iii) any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;
This section suggests that pending and new National Interest Waiver (NIW) Self-sponsored green card applications could be exempt, and thus processed in the usual way.
(ix) any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
Conclusion
My biggest concern when the Global Travel Ban was first touted by the President was that it would be very broad, draconian and very disruptive indeed. In particular, that aliens already living and working in the U.S. would not be able to have their pending green card applications completed and those aliens, again, already living in the U.S. would similarly not be able to submit new green card applications either. Upon my reading of the EO, and as stated at the outset, the ban seems to be focused only on those aliens not currently physically present in the U.S. who were seeking to enter as soon as their green cards were issued within the next 60-days.
If my reading of this EO is accurate, then this EO Travel Ban is seems to be a ‘nothing burger’ for the most part, it’s pretty much business as usual, unless the President decided to perpetually extend the EO over 60-days (technically the EO says 50 days) and this would be only possible if he gained re-election and the Coronavirus was still prevalent, and this I guess we’d have bigger problems to worry about.
“Sec. 4. Termination. This proclamation shall expire 60 days from its effective date and may be continued as necessary. Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.”
Caution
With regards to the current ability of aliens to enter under the alphabet visas (F-1, O-1, P-1, E-1, E-2, E-3, L-1, H-1B, R-1, TN, etc., ) the EO does say that these visas are currently under review, and thus the current position is subject to change. So, if you are thinking about applying for one of these visas, make it quick, just in case.
“Sec. 6. Additional Measures. Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
The EO comes into effect April 23rd at midnight.
So, there you have it. I will be referring all clients and prospective clients to this article rather than seeking to answer every single email inquiry simply because there are too many emails coming in right now as you might imagine.
If I need to correct my commentary on any part of the EO I will do so asap. Remember, this EO is brand new, and I’ve read it over and over, and so the above is my best interpretation as to what the EO has stated.
I wish you all the very best. Please stay safe, stick to social distancing and all the other safety advice out there.
P.S. I have a lot more to write on other topics, I’ll try and get another newsletter out asap.
Immigration Law Offices of Chris M. Ingram
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