Trump’s Immigration Ban Limited in Duration, Scope

Roy Maurer By Roy Maurer April 23, 2020

President Donald Trump's executive order pausing immigration to protect U.S. workers who lost their jobs as a result of the coronavirus pandemic applies to only a relatively few foreign nationals sponsored for employment visas.

The order—signed April 22 and taking effect at 11:59 p.m. on April 23—puts a 60-day hold on green cards for certain family members of U.S. citizens and permanent residents who reside overseas; the 50,000 immigrants who come to the U.S. as part of an annual diversity visa lottery; and a limited number of workers sponsored by employers while still living abroad.

The policy will not apply to anyone coming to the country for tourism or business or to temporary workers such as H-1B professionals, H-2A agricultural workers or H-2B seasonal workers. Nor does it cover students, health care workers, the spouses and minor children of U.S. citizens, current green card holders, or people with approved green cards who haven't yet received them.

The suspension also does not affect the filing or processing of applications for adjustment of status to permanent residence for foreign nationals residing in the United States—the most common way by far that employment-based green cards are processed.

"In light of COVID-19, SHRM fully understands the public health and economic challenges facing our nation, our workforce and our families," said Emily M. Dickens, corporate secretary, chief of staff and head of government affairs at SHRM. "The new executive order signals a need to recognize that in order to bridge our country's skills gap, access to talent—both at home and abroad—is key. SHRM is working with the administration, Congress, and business leaders to ensure employers' talent needs are considered as we look towards a recovery."

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

Political Effect

"The executive order appears to be a very limited action that could likely survive U.S. Supreme Court scrutiny," said Rebecca Bernhard, a partner in the Minneapolis office of international law firm Dorsey and Whitney. "It appears to be issued as a political document for the presidential campaign as a way to demonstrate the president's solidarity with U.S. citizens laid off during the COVID-19 crisis. The practical impact feels far less dramatic than the political impact." 

About half of the approximately 1 million green cards issued each year go to immigrants from abroad—the vast majority of whom are relatives of U.S. citizens and permanent residents—while the remainder go to foreign nationals living and working in the United States.

The practical effect of the ban is further limited by the fact that the U.S. Department of State has already suspended visa services at embassies and consulates worldwide.

"Embassies have been closed for over a month and, given the current global situation, embassies are likely to remain closed for some time," said Tahmina Watson, an immigration attorney and owner of Seattle-based Watson Immigration Law. "Therefore, the 60-day delay would likely have happened anyway. Anyone with a pending case outside the U.S. should expect delays, but not necessarily denials, based on this."

The ban could extend past when consulates reopen, however, and there could potentially be an extension of the 60 days in incremental measures, Watson said.

SHRM Resource Spotlight
Coronavirus and COVID-19

Labor Market Reasoning

President Trump stated that the ban is intended to protect job opportunities for the millions of U.S. workers who have lost their jobs due to COVID-19. Administration officials said the ban would be re-evaluated after 60 days and could be extended based on economic conditions at the time.

"This will ensure that unemployed Americans of all backgrounds will be first in line for jobs as the economy reopens," Trump said at a press briefing. "We must be mindful of the impact of foreign workers on the United States labor market, particularly in an environment of high domestic unemployment and depressed demand for labor. The United States faces a potentially protracted economic recovery with persistently high unemployment if labor supply outpaces labor demand."

Many observers, including Diane Hernandez, an attorney in the Denver office of Hall Estill, find the labor displacement rationale behind the order to be misplaced, "especially since most of the jobs that have been lost to the COVID-19 crisis are in hospitality and similar industries and not the kinds of jobs that employment-based immigrant workers come to the U.S. to fill. Those who enter the U.S. on employment-based green cards are not going to be competing for lower-level positions that require no college degree." 

Watson said another concern is that while guest workers are not currently included in the ban, the order says that administration officials will review temporary visa programs and make recommendations within 30 days, which could "potentially create actual problems with visas such as H-1Bs."

Hernandez said that "it is possible that the administration has purposely limited this suspension to those seeking permanent residency and specifically not temporary visas such as H-1Bs because it knows, or has been advised, that suspending the H-1B program at this time would be catastrophic for many industries which are right in the middle of the annual H-1B lottery application process."

Even before the ban, the Trump administration had already ceased nearly every form of immigration due to the coronavirus pandemic. Nearly all visa processing has been halted, visa interviews have been postponed, and cross-border travel with both Canada and Mexico has been significantly reduced. Coronavirus-related entry bans are in effect for travel from numerous countries, including China, Iran and the European Union.

Legal Viability

The executive order is expected to face legal challenges. "I'm sure this order is being looked at closely for potential challenges," said Andrew Wilson, a partner at Lippes Mathias Wexler Friedman and co-leader of the firm's Immigration Practice in Buffalo, N.Y. "I was initially surprised that the order was not premised on travel restrictions due to health concerns over COVID-19. I thought that would be the easiest basis to support in the short term. The new executive order, however, is playing the card that worked before in defense of Trump's travel ban executive order, claiming that the entry of certain foreign nationals would be detrimental to the interests of the United States—and specifically that the entry of those pursuing green cards from abroad would hurt job prospects of U.S. citizens during this pandemic."



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