On April 22, 2020, pursuant to Immigration and Nationality Act (“INA”) sections 212(f) and 215(a) and 3 U.S.C. section 301, President Donald J. Trump issued a Proclamation “pausing” immigration into the United States of America for foreign nationals who:
- Are outside the United States on April 23, 2020;
- Do not have a valid immigrant visa on April 23, 2020; and
- Do not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date of the Proclamation, or issued on any date thereafter that permits travel to the United States to seek entry or admission.
The Proclamation is pausing the issuance of immigrant visas at U.S. Consular posts abroad for a period of sixty (60) days.
The Proclamation became effective at 11:59 p.m. (ET) on April 23, 2020 and will expire after sixty (60) days, although President Trump will reconsider whether to extend or alter the Proclamation within fifty (50) days of its signing after receiving recommendations from the U.S. Secretary of Labor and the U.S. Secretary of Homeland Security.
The following categories are EXEMPT from the Proclamation:
- Lawful Permanent Residents (individuals currently holding a “green card”);
- Foreign nationals entering the United States on an immigrant visa as a physician, nurse, medical researcher, or other healthcare professional; or to perform work that the U.S. Department of Homeland Security and the U.S Department of State determine is essential to combating the effects of the COVID-19 outbreak; and their spouse and any unmarried children under twenty-one (21) years of age are also exempt;
- EB-5 Immigrant Investor Program applicants;
- Spouses of U.S. citizens;
- Foreign nationals who are under twenty-one (21) years of age and are children of U.S. citizens, and prospective adoptees seeking to enter on an IR-4 or IH-4 visa;
- Foreign nationals whose presence in the United States is in the national interest, as determined by the U.S. Secretary of State, the U.S. Secretary of Homeland Security, or their respective designees;
- Members of the U.S. Armed Forces and any spouse and children of members of the U.S. Armed Forces;
- Foreign nationals whose entry furthers U.S. law enforcement objectives as determined by the U.S. Secretary of Homeland Security and the U.S. Secretary of State based on the recommendation of the Attorney General of the United States, or their respective designees; and
- Certain Special Immigrant entrants such as Iraqi and Afghani nationals who have assisted the United States as translators or interpreters or U.S. Government Employees (SI or SQ classification), and their spouses or children.
It is within the discretion of a U.S. Consular Officer to determine if an individual is within one of the exempted categories outlined above.
It is worth noting that the Proclamation does not void any existing U.S. visa and will not affect tourists. Non-Immigrant visas, which are granted on a temporary basis, are also not included in the Proclamation, but they are subject to further review within thirty (30) days of April 23, 2020.
Asylum seekers are also not included in the Proclamation.
The Proclamation states, “an alien who circumvents the application of the proclamation through fraud, willful misrepresentation of a material fact, or illegal entry shall be a priority for removal by the Department of Homeland Security.”
Separate from the Proclamation, U.S. Citizenship and Immigration Services (USCIS) announced on April 24, 2020 it is updating policy guidance in the USCIS Policy Manual regarding the false claim to U.S. citizenship ground of inadmissibility to the United States.
The updated policy guidance will align with the U.S. Department of Justice’s Board of Immigration Appeals’ (BIA) precedent decision in Matter of Zhang, 27 I&N Dec 569 (BIA 2019) holding that a false claim to U.S. citizenship does not need to be knowingly made in order to find a foreign national inadmissible to the United States under INA 212(a)(6)(C)(ii).
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