President Trump issued a proclamation mandating a 60-day suspension on the issuance of immigrant visas for certain categories of family and employment-sponsored immigrants and diversity lottery winners. Employers should know the proclamation is rather limited, at least for now.

Can He Do This?

I get this question quite a bit, so it is worth discussing. Section 212(f) of the 1952 Immigration and Nationality Act, grants the president broad authority to block the entry of categories of people he deems detrimental to U.S. interests. Historically, this power has been invoked to ban narrow categories of human rights violators and refugees of Cuba and Haiti.

Of course, this proclamation will likely be subject to challenge. Given the proclamation’s limited scope and short duration, coupled with the executive branch’s broad powers over immigration, this particular decision stands a solid chance in surviving judicial scrutiny.

The Basics

Under the proclamation, people who are otherwise eligible to receive immigrant visas through a U.S. consulate abroad will not be able to obtain such visas. This prohibition generally extends to those sponsored under most family categories, employment categories, and diversity lottery winners. Some essential carveouts are listed below.

Who is Not Included?

  • Anyone seeking to enter temporarily using the Visa Waiver Program or a valid visa.
  • Existing permanent residents, no matter where they are (green card holders).
  • People already in the U.S., no matter what their status or intention or future movement.
  • People who already have been issued an immigrant visa.
  • Anyone who has or ever will get advance parole (in case they are an applicant for adjustment of status to green card within the U.S. and obtain this travel authorization), a transportation letter or boarding foil (for people who otherwise should be able to enter with a visa or green card but encountered an emergency)
  • Anyone immigrating as a health care professional or to research or counter COVID-19, or their families.
  • Investors in the EB-5 program and their families.
  • Spouses or children (under age 21) of U.S. citizens (including adoptees)
  • U.S. military members and their spouses and children.
  • Applicants for asylum, refugee status, or torture convention applicants.
  • Other people whose immigration is deemed to be in the national interest.

Who Will Be Impacted the Most?

From an employment prospective, I foresee this having a potentially large impact on the I.T. sector.

What’s Next?

The proclamation suggests the Administration will review and potentially extend the agreement in an effort to stimulate the U.S. economy and “ensure the prioritization, hiring, and employment of United States workers.”

About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.

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