Last night, President Trump tweeted: “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!’
This tweet has caused great anxiety among immigrants in general and in particular caused clients to reach out to me for clarification. From tweet to text, a lot may change, but this note is intended to help you understand this new development and evaluate it objectively.
Firstly, no Executive Order has been signed as of this writing. In fact, according to news reports, no one has yet seen this Executive Order. NPR reported, “details of the president’s plan, including who it would apply to, how long it would last, and when it would go into effect, were unclear as of Tuesday morning.” The Wall Street Journal reports that while exact details are not immediately clear, migrant farm workers and medics are thought to be exempt. Bloomberg News quoted the National Security Advisor Robert O’Brien, who while speaking to reporters at the White House on Tuesday morning, called the suspension “a temporary issue” and said he didn’t know how long it would last.
Here are a few things to consider:
While several aspects of the President’s plan are as yet unclear, as of March 20th, the Department of State suspended routine visa services at all U.S. Embassies and Consulates. However, exempt were H2A (temporary agricultural workers) and medical personnel (e.g., doctors on J-1), particularly those working to treat or mitigate the effects of COVID-19. The border is already closed and the administration essentially shut down the nation’s asylum system last month. All routine in person processing at USCIS offices has been suspended until May 3rd.
We are unsure if the suspension is likely to impact pending immigration processes, or future extensions of status for nonimmigrant workers and their dependents in H-1B, L-1, H1B1, O, P, E, etc. We are unclear as to how pending applications for adjustments of status and naturalization are likely to be treated. Significantly, the recently concluded H-1B registration program also provides CAP Gap protection for several students. If H-1B CAP filings are suspended, their status would be in limbo. Suspending existing immigration benefits would cause temporary workers and nonimmigrants to become ineligible to work and lose status, significantly complicating the legal framework that helps administer immigration in the U.S. Moreover and more importantly, putting thousands of nonimmigrants out of work may adversely impact businesses that depend on their skills to remain viable during the COVID emergency. Therefore, I believe exemptions will be drawn up to allow existing processes to continue.
The Constitution gives Congress the final word in immigration matters. However, not even Congress has the power to suspend all immigration. President Trump’s action(s) would be unprecedented and will no doubt, lead to several legal challenges. We will continue following this developing story and bring you the latest as and when it happens. In the meantime, the USCIS is open and so, we will continue filing your cases until instructed otherwise by the Agency.
Thank you for your patience and support during these very troubled times.