COVID-19 Updates: Executive Order Suspending U.S. Entry of Green Card Seekers & Other Key Developments

April 23, 2020

The COVID-19 pandemic has initiated a cascade of events that has restricted entry into the United States and otherwise impeded or delayed the issuance of immigration benefits. This unprecedented global crisis has drawn attention to the intersection of U.S. immigration law and public health policy, while also underscoring the significant hurdles that foreign nationals encounter when visiting, working, or seeking permanent residence in the United States today.

Executive Order Suspending U.S. Entry of Green Card Seekers

On April 22, 2020, President Trump signed the executive order, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak”, temporarily suspending the entry of immigrant-visa applicants to the United States for an initial period of sixty (60) days. The order takes aim at several programs that have been on the President’s immigration agenda, including chain migration and the diversity visa program.

The proclamation concerns the “entry” of immigrant-visa applicants outside of the U.S., specifically those without a valid immigrant-visa as of the effective date. Adult children and parents of American citizens seeking green cards, as well as relatives of U.S. permanent residents, all fall within the scope of the order. However, since U.S. consulates/embassies have already suspended routine visa operations abroad due to COVID-19, it is expected to have minimal immediate impact.

Notably, temporary, nonimmigrant visa holders (i.e. F-1, O-1, H-1B, TN, L-1, E-2) are excluded and can still seek a change of status or an extension of previously approved status with USCIS. Furthermore, EB-5 foreign investors, spouses and minor children of U.S. citizens, healthcare workers, and those with already-approved green cards are also exempt. Though, the proclamation directs federal agencies to review and recommend additional measures within 30 days. 

The Legal Basis

These sweeping, exclusionary powers are enumerated in the Immigration and Nationality Act (INA), specifically INA Section 212(f). This provision vests in the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. The determination concentrated on whether the continued entry of foreign nationals would be “detrimental” to U.S. interests. In recent years, the Trump administration has exercised such authority to enforce numerous travel bans related to national security, including the controversial “Muslim ban” that was upheld in the landmark 2018 U.S. Supreme Court decision, Trump v. Hawaii.  To this end, the Proclamation aims to protect and prioritize U.S. citizens for employment opportunities due to historic unemployment levels, while also seeking to avert further strain on the U.S. health care system.

Developments with USCIS Adjudication

Beyond the immediate effects of the Proclamation, in recent weeks, USCIS has adopted a number of measures as a result of COVID-19 that have affected case processing, in-person appointments, benefit forms, and response deadlines. A few of which are outlined below:

·       As of March 20, 2020, USCIS will not accept any new requests for premium processing for all Form I-129 nonimmigrant worker and Form I-140 immigrant worker petitions. USCIS will still process any petition previously accepted under this expedited, 15-day processing program in accordance with the criteria.

·       USCIS is providing greater flexibility in responding to deadlines for requests for evidence (RFEs) and notices of intent to deny (NOIDs), allowing for 60 additional days beyond the response due date set forth in the request or notice.

·       On a case-by-case basis, USCIS can exercise its discretionary authority to accept untimely filings or excuse delays caused by the COVID-19 pandemic based on extraordinary circumstances.

·       Due to the COVID-19 emergency, USCIS in its discretion is accepting initial and additional requests for satisfactory departure for up to 30 days from travelers unable to make a timely departure who entered through the Visa Wavier Program (VWP) under the Electronic System for Travel Authorization (ESTA). 

·       As of March 21, 2020, USCIS has been accepting petition forms and documents with electronically reproduced original signatures (scanned, faxed, or photocopied documents) in lieu of wet signatures. Originals with wet-ink signatures should be retained on file in the event that such documents are requested at a later date.   

·       In-person services (i.e. interviews, oath ceremonies, biometrics) at USCIS field offices and application support centers (ASCs) remain suspended until at least May 3, 2020. However, as reported by the American Immigration Lawyers Association (AILA), USCIS has periodically waived the in-person interview requirement for family and employment-based adjustment-of-status (Form I-485) cases in recent weeks. 

How Can We Help? 

During the COVID-19 pandemic, our office continues business as usual under the current circumstances. The pandemic generally does not affect our capacity to handle your case. Our cases continue to be prepared efficiently and effectively as set forth in our engagement letters.

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For more information, please contact me at shaune@fraserpllc.com.

The information provided herein is for information purposes only. It is not intended as legal advice for any particular situation nor presumed as indefinitely up to date.

Shaune D. Fraser, Esq.

Email: shaune@fraserplllc.com

Phone: +1 (305) 915-8167

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