On Jul 13 2020 by Karuna Chandani Simbeck

COVID-19- Impact on U.S. Immigration

The Coronavirus (COVID-19) is a pandemic threatening population worldwide and dominating news stories across the globe. During these unprecedented times, numerous countries, including the United States have imposed travel restrictions in an effort to curtail the spread of the disease.  Over the past several months, the Trump administration has used the COVID-19 outbreak to pursue restrictive immigration policy changes.

These changes are through various travel bans and proclamations, often issued with little to no advance notice, confusing not only the public but also the various government agencies. At present, several travel bans and proclamations are in effect. They are also independent one from another. In this article, I have highlighted some of the key changes.

Initially, in February 2020, the Trump administration imposed a ban on travel from China for non-U.S. citizens or residents. Those restrictions have been extended to many more countries since, including Iran, Brazil, and all of Europe.

As the pandemic spread, in March 2020 the U.S. Department of State (DOS) suspended routine visa services at all U.S. embassies and consulates globally, including canceling all visa appointments. This suspension included applicants for both family-based and employment-based immigrant visas (individuals approved to permanently reside in the United States), and nonimmigrant visas for visitors, students, and skilled workers.

Relying on decades-old statutes that give the federal government sweeping powers during public health threats and national emergencies, also, in March 2020, the Trump administration implemented the unprecedented closures of the U.S. land borders with Mexico and Canada to “non-essential traffic,” such as recreation and tourism.

Effective April 23, 2020, the President issued a Proclamation further restricting immigration into the U.S. by suspending the entry of new immigrants for 60 days, with the stated purpose of protecting employment opportunities for U.S. citizens affected by the economic impact of the pandemic. The Proclamation did not change the process of obtaining permanent residence from within the U.S. While the Executive Order did not affect nonimmigrants, the President issued a directive for review and modification of all nonimmigrant programs to “stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

On June 22, 2020, President Trump issued a Proclamation extending the April 2020 proclamation, and continued to suspend the entry of new immigrants who were outside the U.S. on the effective date of the proclamation, did not have a nonimmigrant visa or other official immigration document until December 31, 2020.

Additionally, the Proclamation also suspended the entry from abroad of employees on H, L, and J nonimmigrant visas until the end of this year, but “may be continued as necessary.” The suspension, provided for some exceptions, including “in the national interest of the U.S.” The President rationalized his travel ban on the basis that nonimmigrants are detrimental to the U.S. labor market. The Proclamation also directed the Departments of Labor and Homeland Security to commence rulemaking to eliminate certain work permit programs and make access to certain categories of employment-based immigrant visas more difficult.

Just a few days later, on June 29, 2020, President Trump amended the June 22nd proclamation, making it more difficult for nonimmigrants to qualify for an exemption from a suspension of the entry in the H-1B, H-2B, L-1, and certain J-1 categories, as well as related categories for dependents. 

On a plain reading of the original June 22, 2020 provisions, the implication was that a valid visa on June 24 in any category would exempt a nonimmigrant from the order. However, the June 29th amendment restricted the valid visa exemption to include only those who held a valid visa on June 24 in one of the affected nonimmigrant visa categories and who will not require a new visa to enter the United States.

As a practical matter, this amendment is wreaking havoc on people’s lives and is still a source of confusion. There are some common examples of individuals who are subject to the travel ban based on this restrictive amendment. For example, an H-1B or L-1 worker may have entered the US before the pandemic and planned for his dependent spouse or child to join him later in the summer. Under these fact patterns, if the dependents did not have a valid visa prior to June 24 they subject to the travel ban and ineligible to apply for a new visa or reentry to the United States until after December 31, 2020.

While still coming to terms with the rapid changes in the immigration landscape, there was yet another blow, this time to international students both here in the U.S. and abroad. In the spring as countries were entering pandemic lockdowns, universities were granted flexibility to existing requirements that international students must attend classes in person. However, on July 6, 2020, U.S. Immigration and Customs Enforcement (ICE) issued guidance that international students will not be approved to enter or stay in the U.S. if all their courses are online. 

This left universities scrambling to adapt to the new guidelines. It also caused panic among the students especially those who chose to remain in the U.S. to avoid traveling internationally during the pandemic. Based on the new policy, the students risked deportation if their universities move classes entirely online in the upcoming fall semester. However, on July 14, 2020 the Trump administration rescinded the policy after several states and universities filed lawsuits.

The Trump administration has banned entry into the U.S. of immigrants and nonimmigrants to protect the U.S. workforce and economy. However, this restriction made little sense given the loss of tuition dollars to these universities. According to the Institute of International Education (IIE), international students contributed $44.7 billion to the U.S. economy during 2018.  While the administration has backed off at present, the constant policy changes will make the U.S. a less attractive destination for international students.

Unfortunately, this is probably not the last we have heard from the Trump administration on immigration. It’s highly likely that other restrictive immigration measures may be in the pipeline. Creating an uncertain and hostile environment for immigrants is going to have unintended consequences beyond the end of the pandemic.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the July 13, 2020 edition of the The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.