What visa and green card processes will be affected by Trump’s executive order “Suspension of Immigration”?

Trump’s tweet announcement to “suspend immigration to the United States” by executive order has visa and green card applicants in all categories concerned about what this means to them.

On the night of Monday, April 20, 2020, President Trump announced his intention to “temporarily suspend immigration to the United States.” The Tweet said the following:

“In light of the attack by the Invisible Enemy, as well as the need to protect the jobs of our GREAT American citizens, I will sign an Executive Order to temporarily suspend immigration to the United States!”

Although the executive order has not yet been signed and published, the details of what it will contain emerged in different statements from White House officials and the president himself. We will summarize those details below.

Based on the wording of the Tweet, it appears that the ban would block all immigration to the US, on a “temporary” basis. Given that Trump is constantly focused on being reelected in November 2020, he calculated that this would excite the part of his political base that consists of workers who believe that immigrants are competing for their jobs and lowering wages. However, he was quickly notified by the business community part of Trump’s political base that doing so would harm his interests, namely the high-tech industry, which is highly dependent on university-educated temporary workers under the H-1B visas, the agricultural industry, which depends on temporary agricultural workers under the H-2A visa program, and the meat processing industry that relies on temporary workers under H-2B visas. Trump has also been reminded that doctors with J-1 and H-1B visas and nurses with TN visas are working front-line in hospitals treating patients with the Coronavirus and biomedical researchers with H-1B visas and J-1 are conducting research to find medications to stop the Coronavirus.

In the late afternoon of Tuesday, April 21, 2020, when President Trump made his daily television appearance to discuss what his administration is doing to combat the Coronavirus crisis, President Trump explained that the executive order would not affect any requests. of temporary visas, but would put a 60-day “break” on people seeking permanent residence in the US, and he would decide, at the end of the 60-day period, whether to renew the break. He also said the executive order was being written, and that he would probably sign it on Wednesday.

This means that people who apply for temporary visas such as E-2, E-1, L-1, H-1B, O-1, P-1, etc., will not be affected.

Other details have emerged from news that the executive order will seek to delay the processing of green cards for immigrants sponsored by their U.S. employer or their legal permanent resident spouse or parent. However, it will not try to delay the processing of green cards for the spouse and children of US citizens, but it is not yet clear whether it will try to delay the processing of green cards for parents. or siblings of US citizens. This would also imply that Trump’s executive order would not affect applicants for K-1 fiancee or K-3 spouse visas, as these are both temporary visas and visas. for the future spouse of a US citizen.

It’s also unclear whether it will affect EB-5 investors, as they are not being sponsored by a U.S. employer to work in the United States, but are in an employment-based category, which Trump might not distinguish from the other categories. based on employment. EB-5 investors who have the conditional green card or who have removed the conditions of their green card will not be affected at all.

Unclear areas will be cleared once the final executive order is signed.

I anticipate that this executive order will be challenged, and hopefully blocked by federal courts, for multiple legal reasons:

  • Damage due to retroactive application. It hurts applicants who are already in the immigration process by retroactively applying to their process a rule that was not in force at the time their application was filed.
  • It does not achieve its stated purpose. That, in trying to reduce competition with American workers for jobs in the next 60 days, it is not targeting temporary visa applicants, who would receive work visas to start work in the next 60 days, but rather It is for people who are in a longer green card process that will take much more than 60 days to complete.
  • Too wide an impact. The executive order has a negative impact on immigrants who are not the source of the problem that the executive order seeks to solve. In other words, delaying the green card process for underage children of permanent residents does not advance the cause of protecting US workers. of competition with foreign workers for jobs, since the minor immigrant child would not be able to take a job, anyway.
  • Exceeding executive authority. The executive order exceeds the authority of the executive branch by refusing to execute valid laws, already in force, based on political decisions of the executive branch not approved by Congress and not based on any special authority granted to the executive branch by Congress.

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