Companies and their foreign employees have been nervously awaiting the release of President Trump’s most recent proclamation in response to his April 20th tweet announcing his intent to suspend immigration to the U.S. Employers have had to speculate how this potential policy could affect their hiring, retention, and ongoing employment practices under the COVID-19 pandemic. In the evening of April 22, the White House published the text of the order (available here) clarifying its scope, duration, and numerous exemptions.
The order itself is narrower than the President’s tweet implied. The order has no effect on nonimmigrant visa processing (including work visas like H-1Bs, H-2As, TNs, Es, Os, Ls, etc.) nor does it have any effect on the lawful permanent resident process for those individuals intending to adjust their status and receive their green cards while remaining physically inside the U.S. It does, however, bar the issuance of immigrant visas (permanent resident visas) obtained through consular processing abroad for the next 60 days (subject to extension).
This ban has a number of exemptions, including but not limited to those who are already permanent residents, certain immediate relatives of U.S. citizens, and individuals who have already received their immigrant visa prior to the issuance of the proclamation. In the employment context specifically, the exemptions also include individuals seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional working in manner related to COVID-19 (and their dependents); individuals applying for immigrant visas through the EB-5 Immigrant Investor Program; and individuals applying for immigrant visas who have received an approved National Interest Waiver.
Practically speaking for employers, this order affects employees who intended to receive their approved immigrant visas abroad through consular processing over the next 60 days (or longer if extended) in the EB-1 categories, EB-2 categories (excepting those with an approved National Interest Waiver), and EB-3 categories. It however does not affect PERM processing, I-140 processing, or I-485 processing in these categories. Employees physically present in the U.S. with lawful immigration status and valid work authorization may be able to remain in the U.S. to wait out the Executive Order or may qualify for adjustment of status to receive their green card without departing the U.S.
If you are concerned about the effects of the proclamation on an employment-based case for you or your employees or if you are curious about what options exist to process the case within the U.S. to avoid the effects of this order, please feel free to reach out to our firm today. We are open and available for video conference and teleconference appointments.
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