BREAKING: Executive Order Released: Spouses and Children of US Citizens, LPRs, EB-5 Investors, and More Are Exempt

The long-awaited Executive Order temporarily suspending the immigration of certain aliens into the United States has been released.

WHO IS IMPACTED BY THE EXECUTIVE ORDER?

The order entitled, “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” suspends and limits the entry of the following types of aliens (for a 60-day period) beginning 11:59 p.m. eastern daylight time on April 23, 2020.

Your entry is suspended and limited if all of the following are true:

THREE PART TEST

You are an alien outside of the United States on the effective date of the Proclamation (April 23^rd)
You are an alien that does not have an immigrant visa that is valid on the effective date of the Proclamation (April 23^rd) and
You are an alien that does not have an official travel document other than a visa on the effective date of the proclamation (April 23^rd) or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission
- Official travel documents include a transportation letter, an appropriate boarding foil, or advance parole document.

ENFORCEMENT

This Proclamation shall be enforced by U.S. Consulates worldwide at their discretion giving them the power to determine whether an immigrant has established his or her eligibility and is otherwise exempted from the Proclamation. The Department of State will implement the proclamation as it applies to immigrant visas, at the discretion of the Secretary of State in consultation with the Secretary of Homeland Security.

The Department of State governs the immigration process outside of the United States, while the Department of Homeland Security governs the immigration process within the United States and guides the United States Citizenship and Immigration Services (USCIS).

WHO IS EXEMPT FROM THE EXECUTIVE ORDER?

The order expressly exempts:

Lawful Permanent Residents of the U.S.
Aliens who are the spouses of U.S. Citizens
Members of the U.S. Armed Forces and any spouse and child of a member of the U.S. Armed Forces
Aliens under 21 years of age who are children of United States Citizens and prospective adoptees
Aliens seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional
Aliens seeking to enter the U.S. to perform medical research or other research intended to combat the spread of COVID-19
Any spouse any unmarried child under 21 years of age of any such alien who is accompanying or following to join the alien
Any alien applying for a visa pursuant to the EB-5 Immigrant Investor Program
Aliens whose entry furthers important United States law enforcement objectives
Any alien seeking entry pursuant to a Special Immigrant Visa in the SI or SQ classification, and any spouse and child of any such individual
- SI: Certain aliens employed by the U.S. Government in Iraq or Afghanistan as translators or interpreters
- SQ: Certain Iraqis or Afghans employed by or on behalf of the U.S. Government
Any alien whose entry would be in the national interest of the United States (national interest waivers)
Aliens seeking entry for asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

DOES THE ORDER APPLY TO PENDING GREEN CARD APPLICATIONS?

Probably not. The Proclamation does not explicitly make mention of how pending green card applications will be impacted by the order. The order gives the Department of State and Homeland Security the discretion to come up with procedures for enforcement. That means that these agencies will make further announcements that will shed light on how (if at all) pending green card applications will be affected. From the language of the Proclamation, it does not appear that the Proclamation will apply retroactively. Instead, the Proclamation uses language that is forward looking stating that immigration will be suspended from the “effective date of the Proclamation,” which is on April 23^rd.

We will be following DOS and DHS pages closely for further announcements.

ARE SPOUSES OF US CITIZENS AFFECTED?

No, spouses and children of U.S. Citizens under 21 years of age are exempt from the order. This means that U.S. Citizens will be able to continue to immigrate their immediate relatives either via Consular processing or adjustment of status.

ARE EMPLOYMENT-BASED GREEN CARD APPLICANTS AFFECTED?

EB-5 investors, aliens whose immigrant petition is in the national interest, and physicians, nurses, healthcare professionals, and medical researchers, seeking immigrant visas are exempt from the order.

Additionally, if you do not meet the three-part test outlined above, the order does not apply to you.

WHEN DOES THE ORDER END?

June 22, 2020 (60 days from its effective date of April 23^rd) and may be continued as necessary.

CAN THE ORDER BE BLOCKED BY A FEDERAL LAWSUIT?

Yes. There is a great possibility that a slew of lawsuits will be triggered challenging this order. The order can be blocked if a plaintiff seeks and a federal judge grants a temporary restraining order (TRO) providing emergency short-term relief that would prevent the government from implementing the order. After issuance of a temporary restraining order, the plaintiff would file a preliminary injunction asking the court to maintain the status quo (the state of affairs before the order was issued) thereby blocking the government from enforcing the order until a final judgment is reached.

Interestingly, the Proclamation inserts the following language in the case a court finds any provision of the order invalid:

Sec 7. Severability

(a) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its provisions to any other persons or circumstances shall not be affected thereby; and

(b) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

WHAT HAPPENS NEXT?

We believe the lawsuit will almost certainly be challenged in court. Please remain on standby and continue monitoring our blog for further announcements from the Department of State and the United States Citizenship and Immigration Services, as well as lawsuits filed in federal court.

We ask that you please be patient as we obtain further information.

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For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.