Immigration FAQ - Presidential Proclamation Suspending Entry of Certain Immigrants into the United States

The proclamation became effective on Thursday, April 23, 2020 at 11:59 PM (ET). By its terms, the proclamation terminates 60 days after its effective date. However, within 50 days from April 23, 2020, the Secretary of Homeland Security, in consultation with the Secretaries of State and Labor, may recommend to the President that it be continued or modified.

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The proclamation applies to any individual seeking to enter the U.S. as an immigrant who is outside of the U.S. on or after April 23, 2020, does not have a valid immigrant visa on the effective date, and does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) issued by the effective date of the temporary suspension. The proclamation also includes several exemption categories.

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The following categories of individuals are exempted from the proclamation:

1. Lawful permanent residents (LPR)
2. Individuals, and their spouses or children, seeking to enter the U.S. 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 Secretaries of State and Department of Homeland Security (DHS), or their respective designees)
3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program
4. Spouses of U.S. citizens
5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa
6. Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)
7. Members of the U.S. Armed Forces and their spouses and children
8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)
9. Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).

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No. The proclamation does not restrict nonimmigrant visas (NIVs) including those for work, travel, or leisure. However, section 6 of the proclamation requires that within 30-days, the Secretary of Labor and Homeland Security, in consultation with the Secretary of State recommend appropriate measures concerning NIVs that will inter-agency review of NIVs with a possible recommendation on NIV categories that are deemed to negatively affect the US economy.

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Section 6 of the proclamation indicates that additional measures will be evaluated consistent with the stated objective of prioritizing the hiring of US workers. It is uncertain as to what additional measures will entail, but they do not take effect under this proclamation. Requiring recruitment would likely require a statutory change.

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No. You can still apply for asylum or refugee status consistent with U.S. law and Conventions.

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No. The proclamation specifically exempts persons in possession of an immigrant visa that was valid on the effective date, April 23, 2020.

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No. Those persons not in possession of a valid immigrant visa or other travel document on April 23, 2020 are barred from entering the U.S. for the duration of the proclamation.

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While, the proclamation does not specifically provide for the revocation of unused immigrant visas; the State Department shared an update on its website specifically noting that no valid visas will be revoked under the proclamation.

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Yes. The proclamation does not apply to persons in possession of an advance parole document, a transportation letter, or a boarding foil on the effective date, April 23, 2020.

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Per section 3 of the proclamation, consular officers are delegated discretionary authority to determine whether an immigrant is eligible for an exemption provided by the proclamation. The Secretaries of State and Homeland Security are responsible for devising procedures for issuance of visas and admission to the U.S. of immigrants exempted by the proclamation.

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At this time, it does not appear that there is an appeal mechanism. Section 3 of the proclamation indicates that visa issuance decisions are made within the consular officer’s discretion and that the Secretary of State in consultation with the Secretary of DHS will implement procedures at their discretion to further the objective of the proclamation.

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Yes. The proclamation specifically exempts resident aliens. Members should be mindful, however, of other travel restrictions affecting persons who have been present in most countries in Europe, China and Iran.

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Maybe. The answer here depends on whether the visa was issued prior to the effective date on April 23, 2020. Spouses and children of lawful permanent residents are not currently exempt from the proclamation. As such, if the immigrant visa was issued to the spouse or child of a permanent resident alien after the effective date, their entry would be barred while the proclamation is in effect. The State Department has confirmed that cases in which an F2A children is at risk of “aging out” are included in the category of requests for which consular offices may provide “emergency and mission critical visa services”. However, these individuals remain subject to the proclamation’s restrictions and thus, would not be permitted entry into the United States until the Proclamation has been terminated, unless they meet another exemption.

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Yes. The proclamation exempts physicians, nurses and healthcare professionals. In addition, it exempts those seeking to enter the U.S. to perform medical research to combat COVID-19 or to perform work “essential to combating, recovering from, or otherwise alleviating the effects of COVID-19″.

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Yes. The spouses and children of healthcare professionals and those performing research or working to fight COVID-19 are exempt from the proclamation, are also exempt.

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This is unknown at this time. Based on a reading of the proclamation, those who perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak” are exempted from the proclamation, and as such may obtain an immigrant visa and enter the United States. However, it is unclear if specific categories of individuals or work are included under this exemption, or whether discretion is left to the consular officers to determine based on supporting evidence.

It should be noted that persons whose intended work would be in the U.S. national interest also are exempt from the bar introduced by the proclamation. Given that it also is unknown what standards will be applied to the national interest exemption, presenting evidence of eligibility for both this exemption and the “national interest” exemption would be prudent.

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No. Individuals applying for a visa through the EB-5 program are exempt from the proclamation.

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Certain immediate relatives of a U.S. citizen are exempt from the suspension of entry into the U.S. The proclamation specifically exempts the spouse and children under the age of 21 (including prospective adoptees) of a U.S. citizen. However, the parents of a U.S. citizen are not exempted by the Proclamation.

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Yes. The proclamation specifically exempts the spouse and children of members of the U.S. armed forces.

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The criteria by which a determination will be made on this exemption is currently unknown. The proclamation leaves the discretion in making these determinations to consular officers.

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It is unclear whether holding an approved NIW petition will play a role in a determination made under the proclamation as to whether the individual entering the U.S. would satisfy the “national interest” exemption. Decisions concerning exemptions are ultimately made by consular officers. As such, a determination made by USCIS to approve an I-140 NIW petition may not result in an exemption being granted under this proclamation.

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No. For now the proclamation only suspends the individuals coming into the United States as immigrants for 60 days. It should not preclude filing and adjudication of an I-130, Petition for Alien Relative or I-140, Immigrant Petition for Alien Workers, just as the unavailability of a preference visa category does not preclude filing a petition for that category.

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Yes. It is possible to file a Form I-485, Application to Register Permanent Residence or Adjust Status based on the approved I-140. Of course, she would go to the back of the queue on the Adjustment, but uncertainties associated with resumption of consular services and the pause in visas for certain immigrants may make adjustment more desirable. Members are advised to discuss the benefits and drawbacks of such a switch in order for them to reach an informed decision.

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Yes. The proclamation imposes no limitation on the ability of qualified resident aliens seeking U.S. citizenship to file Form N-400, Applications for Naturalization. At present, however, USCIS Field Offices are closed and are not conducting naturalization interviews at least until June 4, 2020.

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