A Message About Trump’s “Immigration Ban” Presidential Proclamation

On Monday night, President Trump tweeted that he was banning all immigration to the U.S. in response to the coronavirus and to protect American jobs. 

Long story short, he doesn’t have the authority to do that under any statute except for Section 212(f) of the Immigration and Nationality Act (INA), which allows him to impose a temporary travel ban on some immigrants and non-immigrants. 

After his ill-timed tweet, his advisors scrambled to prepare an executive order for him, purportedly to stop the issuance of green cards to everyone for a limited period of time.

Again, Trump doesn’t have the authority to do that. 

The order was finally signed and released today. In fact, it is not an executive order, but a presidential proclamation.

It does not surprise us that underneath all the hubris, the proclamation is extremely limited, and only applies to persons who are currently abroad and trying to seek immigrant visas to come to the United States up until June 23, 2020.

This explicitly means the proclamation banning entry to the United States does not apply to the following classes:

• Anyone who is in the United States and applying for adjustment of status, change of status or extension of status
• Asylees and refugees
• Anyone seeking a non-immigrant visa (such as a tourist, student or worker-based visa)
• Green card holders or lawful permanent residents
• Spouses or children of U.S. citizens
• EB-5 investors
• Medical professionals and nurses working on COVID-19 (with the availability of a waiver from the State Department)
• Military personnel
• Special Immigrant visas
• Anyone who already has an immigrant visa as of April 23, 2020, or has a boarding foil, or a travel document (such as advance parole)

The media has incorrectly called this a ban on green cards, which is not the case. Green cards are issued to those individuals who reside in the United States after an adjustment of status is approved, or after someone has already entered the United States with an immigrant visa. This proclamation is a narrow, limited ban on certain immigrant visas only.

In short, the proclamation only applies to the following classes of people for the next 60 days:

• Anyone consular processing for an employment-based immigrant visa abroad (EB-1, EB-2, EB-3, EB-4);
• Parents of U.S. citizens;
• Spouses and (all) children of permanent residents;
• Adult (21 and over) children of U.S. citizens,
• Diversity Visa lottery winners; and
• Siblings of U.S. citizens.

This proclamation sets a dangerous precedent, and it is likely to be challenged. There is no doubt that some people will suffer harm and delays in the processing in immigrant visas for the next few months. The proclamation can also be extended for longer.

However, it is unclear how many people would actually be directly impacted by this proclamation. Consulates abroad have been closed since March, and might not reopen for a while, so this proclamation seems almost superfluous at this time.

Those persons who had planned to leave the United States to pursue consular processing in the next few months should seek legal counsel to ascertain whether they can stay and extend their status, or switch from consular processing to adjustment of status.

Trump’s entire plan is to scare, scapegoat immigrants and pander to his base. Of course, we all have an elevated sense of anxiety and panic at this time, so news about a ban on immigration has understandably made a lot of people hesitant to apply for things, scared and confused whether they can do so. Media outlets continue to be unhelpful by calling this a green card ban.

If you’re in one of the classes of persons who are currently banned from coming to the United States, it is critical to not try to circumvent the proclamation by coming here on a non-immigrant visa such as a tourist visa and then filing for adjustment of status. Such a move can be construed as a commission of visa fraud and misrepresentation, and permanently bar persons from receiving any benefits.

We suggest for the sake of mental health that people not pay attention to Trump’s unintelligible rants or non-legal sources, and seek out actual legal advice when in doubt or confusion. If anything changes, you will read it first-hand on our blog, or Facebook or Instagram.

Please feel free to share this information with impacted community members, family and friends. 

Photo Credit: The White House