Frequently Asked Questions Regarding Presidential Proclamation

Posted by Alexander Carl | 29 Jul, 2020 | 0 Comments

Frequently Asked Questions Regarding the Presidential Proclamation:   

AILA Doc. No. 20050440 

1. When did the proclamation become effective, and when will it be terminated?

The proclamation became effective on Thursday, April 23, 2020 at 11:59 PM (ET). By its terms, the proclamation terminates 60 days after its effective date. However, within 50 days from April 23, 2020, the Secretary of Homeland Security, in consultation with the Secretaries of State and Labor, may recommend to the President that it be continued or modified.

2. How do I know if my client is impacted by the proclamation?

The proclamation applies to any individual seeking to enter the U.S. as an immigrant who is outside of the U.S. on April 23, 2020, does not have a valid immigrant visa on the effective date, and is not in possession of a valid travel document (such as a transportation letter, boarding foil, or advance parole document) effective on or after the date of the temporary suspension. The proclamation also includes several exemption categories.

3. Who is exempted from the proclamation?

The following categories of individuals are exempted from the proclamation:

  1. Lawful permanent residents (LPR)
  2. Individuals, and their spouses or children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak, (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees)
  3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program
  4. Spouses of U.S. citizens
  5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa
  6. Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)
  7. Members of the U.S. Armed Forces and their spouses and children
  8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)
  9. Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).

4. Does the proclamation include those seeking to enter the U.S. on a nonimmigrant visa?

No. The proclamation does not restrict nonimmigrant visas (NIVs) including those for work, travel, or leisure. However, section 6 of the proclamation requires that within 30-days, the Secretary of Labor and Homeland Security, in consultation with the Secretary of State recommend appropriate measures concerning NIVs that will inter-agency review of NIVs with a possible recommendation on NIV categories that are deemed to negatively affect the US economy.

5. My client has a newly approved H-1B petition but has not yet had the consular visa appointment. Is it possible additional steps will be required such as testing the job market through recruitment or other means before the visa can be issued?

Section 6 of the proclamation indicates that additional measures will be evaluated consistent with the stated objective of prioritizing the hiring of US workers. It is uncertain as to what additional measures will entail, but they do not take effect under this proclamation. Requiring recruitment would likely require a statutory change.

6. Does the proclamation preclude individuals from applying for asylum?

No. Individuals can still apply for asylum or refugee status consistent with U.S. law and Conventions.

7. If an individual is in possession of an immigrant visa received following an application interview at a U.S. consulate but was unable to travel back to the U.S. due to travel restrictions or other exigencies, is she now prohibited from entering the U.S.?

No. The proclamation specifically exempts persons in possession of an immigrant visa that was valid on the effective date, April 23, 2020.

8. Can a person in possession of an immigrant visa that expired before April 23, 2020 obtain a visa foil and present it in order to enter the U.S.?

No. Those persons not in possession of a valid immigrant visa or other travel document on April 23, 2020 are barred from entering the U.S. for the duration of the proclamation.

9. Will immigrant visas issued but not used before April 23, 2020 be revoked?

While, the proclamation does not specifically provide for the revocation of unused immigrant visas; the State Department shared an update on its website specifically noting that no valid visas will be revoked under the proclamation.

10. Can an applicant for adjustment of status who was temporarily absent from the U.S. on April 23, 2020 while in possession of an advance parole travel document return to the U.S.?

Yes. The proclamation does not apply to persons in possession of an advance parole document, a transportation letter, or a boarding foil that was valid on the effective date, April 23, 2020 or is issued on any date thereafter.

Exempted Parties

11. Who is responsible for making a determination concerning whether or not my client is exempt from this proclamation?

Per section 3 of the proclamation, consular officers are delegated discretionary authority to determine whether an immigrant is eligible for an exemption provided by the proclamation. The Secretaries of State and Homeland Security are responsible for devising procedures for issuance of visas and admission to the U.S. of immigrants exempted by the proclamation.

12. Will LegalNet or another appeal mechanism be available to address denials where a consular officer’s determination appears to be in error?

At this time, it does not appear that there is an appeal mechanism. Section 3 of the proclamation indicates that visa issuance decisions are made within the consular officer’s discretion and that the Secretary of State in consultation with the Secretary of DHS will implement procedures at their discretion to further the objective of the proclamation.

13. The proclamation appears to prohibit immigrants from entering the United States. Can persons who already have lawful permanent resident (LPR) status return to the U.S. following travel abroad?

Yes. The proclamation specifically exempts resident aliens. Members should be mindful, however, of other travel restrictions affecting persons who have been present in most countries in Europe, China and Iran.

14. Can the spouse and child of a permanent resident seeking to accompany or follow to join him or her enter the U.S. with an immigrant visa?

Maybe. The answer here depends on whether the visa was issued prior to the effective date on April 23, 2020. Spouses and children of lawful permanent residents are not currently exempt from the proclamation. As such, if the immigrant visa was issued to the spouse or child of a permanent resident alien after the effective date, their entry would be barred while the proclamation is in effect. The State Department has confirmed that cases in which an F2A children is at risk of “aging out” are included in the category of requests for which consular offices may provide “emergency and mission critical visa services”. However, these individuals remain subject to the proclamation’s restrictions and thus, would not be permitted entry into the United States until the Proclamation has been terminated, unless they meet another exemption.

15. Can healthcare professionals such as doctors, nurses and others who were not in possession of an immigrant visa on April 23, 2020 obtain a visa and enter the U.S. while the proclamation is in effect?

Yes. The proclamation exempts physicians, nurses and healthcare professionals. In addition, it exempts those seeking to enter the U.S. to perform medical research to combat COVID-19 or to perform work “essential to combating, recovering from, or otherwise alleviating the effects of COVID-19″.

16. Can the spouse and children of a qualified healthcare professional accompany or follow them?

Yes. The spouses and children of healthcare professionals and those performing research or working to fight COVID-19 are exempt from the proclamation, are also exempt.

17. Are persons engaged in other essential areas of work such as the production of food, energy, or transportation exempt from the proclamation as persons whose work is necessary for “recovering from, or otherwise alleviating the effects of the COVID-19 outbreak?”

This is unknown at this time. Based on a reading of the proclamation, those who perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak” are exempted from the proclamation, and as such may obtain an immigrant visa and enter the United States. However, it is unclear if specific categories of individuals or work are included under this exemption, or whether discretion is left to the consular officers to determine based on supporting evidence.

It should be noted that persons whose intended work would be in the U.S. national interest also are exempt from the bar introduced by the proclamation. Given that it also is unknown what standards will be applied to the national interest exemption, presenting evidence of eligibility for both this exemption and the “national interest” exemption would be prudent.

18. Are those applying for an EB-5 Immigrant Investor visa subject to the suspension?

No. Individuals applying for a visa through the EB-5 program are exempt from the proclamation.

19. Can immediate relatives of a U.S. citizen enter the U.S. with an immigrant visa issued after April 23, 2020?

Certain immediate relatives of a U.S. citizen are exempt from the suspension of entry into the U.S. The proclamation specifically exempts the spouse and children under the age of 21 (including prospective adoptees) of a U.S. citizen. However, the parents of a U.S. citizen are not exempted by the Proclamation.

20. Can the spouse and children of a member of the U.S. armed forces enter the U.S. with an immigrant visa issued after April 23, 2020 regardless of whether the servicemember is a U.S. citizen?

Yes. The proclamation specifically exempts the spouse and children of members of the U.S. armed forces.

21. How can I demonstrate that my client’s entry into the U.S. would be in the national interest?

The criteria by which a determination will be made on this exemption is currently unknown. The proclamation leaves the discretion in making these determinations to consular officers.

22. My EB-2 client has an approved National Interest Waiver (NIW) petition. Does this exempt them from the proclamation?

It is unclear whether holding an approved NIW petition will play a role in a determination made under the proclamation as to whether the individual entering the U.S. would satisfy the “national interest” exemption. Decisions concerning exemptions are ultimately made by consular officers. As such, a determination made by USCIS to approve an I-140 NIW petition may not result in an exemption being granted under this proclamation.

Filing of Petitions and Applications Not Covered Under the Proclamation

23. Does the proclamation preclude the filing of an I-130 petition or I-140 petition with USCIS for an individual outside of the country?

No. For now the proclamation only suspends the individuals coming into the United States as immigrants for 60 days. It should not preclude filing and adjudication of an I-130, Petition for Alien Relative or I-140, Immigrant Petition for Alien Workers, just as the unavailability of a preference visa category does not preclude filing a petition for that category.

24. My EB-1 client who is in the U.S. had submitted their DS-260 and was awaiting an interview when consular services stopped due to the global pandemic. Now, it appears she is subject to the proclamation and not eligible for an exemption. Can she now file for Adjustment of Status?

Yes. It is possible to file a Form I-485, Application to Register Permanent Residence or Adjust Status based on the approved I-140. Of course, she would go to the back of the queue on the Adjustment, but uncertainties associated with resumption of consular services and the pause in visas for certain immigrants may make adjustment more desirable. Members are advised to discuss the benefits and drawbacks of such a switch in order for them to reach an informed decision.

25. Is it possible to file an application for naturalization as a U.S. citizen while the proclamation is in effect?

Yes. The proclamation imposes no limitation on the ability of qualified resident aliens seeking U.S. citizenship to file Form N-400, Applications for Naturalization. At present, however, USCIS Field Offices are closed and are not conducting naturalization interviews at least until June 4, 2020.

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Alexander Carl

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