Ashley Rotchford ’18, Law & Public Policy Scholar
What it says: The proclamation suspends the entry of certain foreign nationals to the United States who attempt entry pursuant to immigrant visas.
It applies to the following foreign nationals: Any foreign national outside the United States as of April 23, 2020 at 11:59 p.m. who does not have a valid immigrant visa or a travel document permitting re-entry and wishes to enter the United States pursuant to an immigrant visa.
It does not apply to the following foreign nationals: Any lawful permanent resident; anyone seeking to enter on an immigrant visa and is a physician, nurse, or other healthcare professional; EB-5 Immigrant Investor Program applicants; spouses of United States citizens; minor children of United States citizens; certain Special Immigrant Visa applicants; and a few choice other exceptions.
What does it mean? The proclamation appears to be very limited in scope. It does not indicate any applicability to persons filing to adjust status from nonimmigrant to immigrant while already in the United States. Nor does it indicate or allude to any freeze in the adjudication and processing of currently pending adjustments or ones that are soon-to-be filed. Determining what the scope truly is may require waiting to see how it is actually enforced.
Conclusions: The proclamation purports to prevent the issuance, at the consular level, of immigrant visas, subject to the exceptions detail above. Whether the President has the authority under 212(f) to prevent the issuance of visas is questionable. Section 212(f) relates to entry to the United States, but the standards for the issuance of visas are codified in federal statute. Thus, while the President is at his maximum power to determine who may enter the United States, it does not necessarily mean he can determine who receives a visa. A visa, immigrant or nonimmigrant, does not guarantee entry in the United States.
At the same time, U.S. embassies and consulates worldwide are closed due to the COVID-19 pandemic. Accordingly, there is no consular issuance of visas at this time. It is unclear if any of these consulates will even reopen by the end of the proclamation’s sixty-day lifespan. Meaning, this entire proclamation—as it stands—may have no real impact on the issuance of immigrant visas.
Furthermore, the proclamation also requires the Secretary of Labor and the Secretary of Homeland Security to review nonimmigrant programs and possibly recommend additional measures after thirty days. That is to say, there is still a looming risk over nonimmigrant workers and their respective visas.
To read the proclamation in its entirety, click here.