Trump’s Executive Order – It only achieves more chaos

Trump’s Executive Order – It only achieves more chaos

On April 22, 2020, President Trump issued an executive order entitled, “Proclamation Suspending Entry of Immigrants Who Present Risk to the US Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” It seems this executive order is not in direct response to the unprecedented job losses in the US as a result of the COVID-19 crisis but instead is a plan rooted in the immigration restrictionist views of Trump advisor, Stephen Miller who ultimately wants to severely restrict US immigration. Based on a 24th April 2020 Washington Post article reporting on a phone call Mr. Miller had with White House supporters, “Miller told the group that subsequent measures were under consideration that would restrict guest worker programs, but the “the most important thing is to turn off the faucet of new immigrant labor,” he said, according to a recording obtained by The Washington Post. Miller indicated that the strategy is part of a long-term vision and not seen only as a stopgap.”

The Proclamation purports to put a “pause” on US immigrant visa issuance which is a step back from Trump’s tweet I talked about on this blog last week where Trump abruptly promised to “temporarily suspend immigration into the United States.” According to the Washington Post article, “Senior White House officials said the memo (executive order) said the memo had not been vetted by lawyers or top officials before the president tweeted that he would be signing it.” This is not a surprise as this has happened with prior immigration executive orders which seem to not even consider the massive workings of the US business and bureaucracy when making such orders which, thankfully will often result in the orders losing some of its sting.

 

Who does the executive order apply to?

 

The dizzying confusion of Trump’s tweet has, whether it was intentional sent shock waves through individuals who have foreign national spouses, parents, or businesses who rely on keeping their businesses going with foreign labor. The executive order which took effect on 11:59 pm easter daylight time April 23, 2020, applies to those:

  • who are outside the United States after the effective date,
  • those who do not have an immigrant visa valid on the proclamation’s effective date,
  • those who do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

The executive order applies to anyone who is applying for an immigrant visa after the effective date and therefore does not apply to those who are applying for Lawful Permanent Residency, colloquially known as a “green card” through Adjustment of Status.

 

Who does the executive order not apply to?

 

  • Spouses and children under the age of 21 of US citizens
  • EB-5 Immigrant Investors
  • those who could further US law enforcement objectives
  • members of the US Armed Forces and their spouses and children,
  • those entering the United States as a Special Immigrant in “SI” or “SQ” visa classification and
  • any person whose entry would be in the United States’ national interest – note this could mean the inclusion of those applying under the second employment-based immigrant visa category which allows those to forego the labor certification requirement if they can demonstrate that their work is of the US national interest.

Immigrant versus non-immigrant.

 

The executive order doesn’t explicitly state it but it does not apply to non-immigrant or temporary work visas. Immigrant visas are visas for those who wish to live permanently in the US. In general, most US work visas are temporary or non-immigrant visas, the most common we discuss on our web site. Although the order is valid for only 60 days, it can be extended in the President’s discretion. It is the Trump administration’s ultimate goals to most legal immigration or, as Stephen Miller put it in a call to Trump supporters, “the most important thing is to turn off the faucet of new immigrant labor.” this is a long term plan that has nothing to do with protecting the US from a virus but to stop immigration to the US without first considering the economic effect of doing so.

It would appear that, while the order will affect millions of people who are applying for immigrant visas, it will not bar those from applying for US work visas which may help with getting the economy back on track until we get to section 6 of the order:

“Additional Measures.  Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

What this means is that the agencies involved with providing US visa benefits will recommend to the Trump administration how to effectively slow work visa issuances to protect American workers. In my experience, during the 2008 financial crash, Presidents Bush and Obama didn’t have to have similar orders and somehow the US economy recovered. Quietly though, US visa petition and application adjudications at the US Citizenship & Immigration Services (USCIS) and US Embassies and Consulates under the US Department of State became more strict. I wonder if this order is creating a lot of fuss over nothing and previous administrations have quietly let the USCIS and US Department of State while letting the adjudicators make up their minds whether a person meets the requirement of a particular visa category. Most likely going about things in a bungling at the Trump administration does way is likely to dissuade those from investing into the US or stopping companies from growing in the US because they believe they will not be able to obtain visas for talented people to come from abroad to help the United States economy grow again.

We will have to wait to see what will happen to non-immigrant visa programs in the coming months.

For further information, please contact Janice Flynn at janice@janiceflynnlaw.com. Please note that this posting is for informational purposes and is not legal advice.