US President Donald Trump, on Wednesday signed an executive order, temporarily banning (for 60 days) from entry those who are outside the US and do not have a valid ‘immigrant’ visa.
In other words, it covers those outside the US who were waiting for a green card through a local US consulate or embassy process. However, certain exceptions have been carved out and this ban will not cover spouses and children (below 21) of US citizens.
There is also a possibility of an extension of this ban, and the field is also kept wide open for widening the ban – whether it will extend to the non-immigrant visa categories, such as H-1Bs remains an open question, at this juncture.
Ashwin Sharma, Florida based immigration attorney told TOI, “As per this proclamation, the categories most impacted would include green cards for parents and siblings of US citizens, and for spouses and children of green card holders.”
The US President’s proclamation explains the rationale. It states: “Furthermore, lawful permanent residents, once admitted, are granted ‘open-market’ employment authorization documents, allowing them immediate eligibility to compete for almost any job, in any sector of the economy.”
It adds: “There is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents by directing those new residents to particular economic sectors with a demonstrated need not met by the existing labour supply.”
Given the Coronavirus pandemic, individuals, such as physicians, nurses and other health care professionals (in other words, frontline Covid-19 warriors) and their spouses and children, will be exempt from such ban, even if they are seeking to enter the US on an immigrant visa.
Interestingly, an exception from the ban has also been carved out for EB-5 immigrant investor. EB-5 is the cash for green card program, where investors have to invest $ 1.8 million or $ 900,000 for investments in rural areas or areas of high unemployment.
The temporary ban applies to applicants for green cards (which fall in the category of immigrant visas), if the application has been made from outside the US – at a consulate or embassy. It will not cover those applying for green cards while in the US. To illustrate, an H1B worker who applies for an employment green card while in the US will not be covered by this ban. Typically, employment based green cards are applied for by those already in the US – it is referred to as adjustment of status.
Political strategy: Many immigrant experts are of the view, that this executive order is a political strategy for President Trump to divert attention and appeal to his voter base.
Snehal Batra, managing attorney, at NPZ law group, questions the point that newly admitted immigrant visa holders are granted open market employment which makes them eligible to directly compete for any job in any sector. She points out that employment green cards (immigrant visas) are tied to the job offer and the immigrant is coming to the US to work for that specific employer.
Speaking to TOI, Cyrus D. Mehta, founder of an immigration law firm in New York said, “Essentially, the proclamation places green card holders on a lower pedestal than temporary non-immigrants under a pseudo economic theory that there is no way to protect Americans from the threat of competition from newly minted green card holders who can seek jobs in any sector. This false assumption is made even though some of the would-be immigrants who have been banned were sponsored by employers because of their skills and who tested the US labour market for American workers prior to filing a green card application on their behalf.”
He adds, “The Proclamation further cruelly blocks spouses and children of green card holders and even those who have won approvals based on their extraordinary ability or their contributions to the national interest.”
Sharma says, “The Presidents proclamation is illogical. It characterizes a 65-year-old parent of a US citizen as a greater threat to the American worker than the same US citizen’s 20-year-old son. The proclamation is also disingenuous in that it is attempting to rebrand the existing processing delays caused by Covid-19 as a targeted ‘suspension to shift public scrutiny away from the administration’s delays in addressing the pandemic, and onto its favourite scapegoat, immigrants.”
Todd Schulte, President of FWD.US an advocacy group founded by Mark Zuckerberg, Bill Gates and other tech leaders in a statement said, “Slashing legal immigration in response to a public health crisis is as ridiculous as it is dangerous. Let’s be honest, this has nothing to do with public health or economic well-being during the Covid-19 crisis.”
“This executive order is about two things: first, this is a political act to demagogue and distract from President Trump’s abysmal handling of the Covid-19 crisis, including a lack of testing, ahead of the election. Second, it is a policy effort by hardliners to exploit this crisis to enact their awful, decades-old wish list to slash immigration radically,” added the statement.
Invite lawsuits: Mehta foresees that this temporary ban will invite lawsuits. “Although President Trump claims to have derived this authority under section 212(f) of the Immigration and Nationality Act, which he relied upon when he issued the travel bans and which was upheld by the US Supreme Court in 2018, I believe that he has overreached here. The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice. For example, EB-5 investors have been exempted from the ban while other would be immigrants who have properly obtained approvals under the law, and many who have waited for years in green card queues, have been improperly banned.”
Future for non-immigrant visas: Another clause in the proclamation is worrying for the Indian diaspora, as a significant chunk of H-1Bs visas – a popular work visa is allotted to Indians and they could be impacted by any subsequent course of action.
Section 6, of the Proclamation states that: “Within 30 days, the Secretary of Labour and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review non-immigrant programs and shall recommend to me other measures appropriate to stimulate the US economy and ensure the prioritization, hiring and employment of US workers.”
Work visas such as the H-1Bs or the L visa (used for intra company transfers) come under the non-immigrant programs. Rajiv S. Khanna, Arlington based immigration attorney feels that a ban on non-immigrant visas is highly unlikely. “Even the President cannot override laws already written by Congress,” says Khanna. It remains to be seen what the future will bring.