Yesterday, President Trump signed an Executive Order (EO) limiting entry of some immigrants into the United States. I believe that the EO applies mainly to immigrants trying to enter the United States using an employment based permanent residence card. In this post, I will discuss the EO and give some pointers. It is important to highlight the fact the EO is limited in time (60 days) and has many exceptions.
Reasoning Behind the Executive Order Suspending Immigration:
In the proclamation, President Trump mentions the main reason behind the proclamation, limiting labor market competition during a recession. I think there are many problems with this reasoning, including equal protection violations of the Equal Protection Clause in the Constitution. I know that it will be challenged in court, and we should pay attention to the way courts limits its applicability.
The President cites INA 212(f) and INA 215(a) as the legal basis for this proclamation. I do not believe that these two provisions give the President the authority to issue the proclamation.
Scope of the Executive Order Suspending Immigration:
The EO limits the entry of immigrants into the United States. At first look, the EO seems to exempt entry of beneficiaries of employment-based categories. The EO does not list specific categories of immigrants who will be denied entry but lists the categories who are outside its scope. The EO applies to the following categories:
- Immigrants who are outside the United States. This means that the EO will not affect immigrant applicants who are already in the United States with or without pending cases;
- The immigrant does not have an approved immigrant visa on the date of the proclamation; and
- Do not have an official travel document as of the effective date of the proclamation.
The limitation does not seem to apply to holders of non-immigrant visa categories that allow employment in the United States. These categories include H, L, and E visas. The proclamation seems to not apply to fiancé visas, since they are not considered immigrant visas. The K visa holder is not permitted employment until they adjust their status per U.S. immigration policies.
As mentioned above, the executive order is limited in time to 60 days. This means that it will expire after 60 days unless the President extends it.
Exempted Immigrants Under the Executive Order for Immigration and Green Card Suspension:
The EO does not apply to the following individuals:
- The Executive Order exempts spouses of United States citizens. This means that spouses with pending immigrant visas will be permitted to enter the United States.
- The EO also exempts current lawful permanent residents.
- The EO also exempts immigrant workers who are physicians, nurses, or other healthcare workers. I believe this will be problematic since it might violate the Equal Protection Clause.
- The EO also exempts immigrant investors under the EB-5 program. I guess the reasoning behind this is that they create jobs.
- Beneficiaries of adoption petitions
- Any immigrants who are entering the United States to further law enforcement objectives
- Members of the United States Military spouses and their children
- Any immigrants whose entry is in the national interest
Analysis of the Executive Order Suspending Immigration:
I must admit that when I first heard about this, I was worried. After all, the travel ban was supposed to be temporary and has had a significant impact on the practice of immigration law.
However, after reading the executive order, it is very limited in scope and does not affect as many categories as I feared.
I do believe that the Executive Order has major constitutional issues, as mentioned above. Call an immigration attorney at [number] to discuss your options, if you or a loved one might be affected by this executive order or other immigration laws.
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