How Will Trump’s Immigration Ban Affect You

After a teaser on Twitter and a verbal preview during a press conference, President Trump has signed an executive order preventing certain foreign nationals from receiving an immigrant visa for the next 60 days. The purpose of the order is protecting United States workers from competition from foreign workers. In reality, however, the order will have little practical effect.

The United States Department of State issues immigrant visas to foreign nationals who are seeking to enter the country permanently. Immigrant visas are typically issued to foreign nationals who are sponsored by a family member or an employer. By contrast, a non-immigrant visa is issued to foreign nationals who intend to enter the country temporarily. Non-immigrant visas include H-1B visas for specialty occupations, L visas for intra-company transferees and O visas for those with extraordinary ability.

For those seeking to sponsor an employee or a relative, here are the critical things to know. The order applies to foreign nationals who:

1. are outside the U.S.,
2. do not have a valid immigrant visa as of April 23, 2020, and
3. do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid as of April 23, 2020.

The order makes exceptions for a wide variety of foreign nationals, including:

• Lawful permanent residents
• Physicians, nurses, other health care professionals; medical researchers who will perform COVID-19 research; or any other foreign nationals who will perform “work essential to combating COVID-19,” as determined by the Secretary of State or the Secretary of Homeland Security
• Foreign nationals seeking to enter through the EB-5 Immigrant Investor Program
• Spouses of a U.S. citizen
• Children (under 21 years old) of a U.S. citizen
• Prospective adoptees

The executive order does little to change the current immigration landscape. All the foreign nationals covered by the executive order would have to receive an immigrant visa from a U.S. consulate abroad. But most U.S. consulates abroad are currently closed due to the outbreak of COVID-19 and are unable to process applications for immigrant and nonimmigrant visas anyway.

More fundamentally, the executive order is unlikely to achieve its stated purpose of protecting U.S. workers.  It does not apply to foreign nationals seeking temporary work visas or to foreign nationals in the United States seeking lawful permanent residency. The foreign nationals in these categories far outnumber the foreign nationals covered by the executive order, and even most of those covered by the executive order were, as a practical matter, already prevented from entering because most consulates are closed.

Contact your immigration counsel for specific advice about how the order affects your particular situation.