Trump Stops Immigrants From Entering for 60 days and Maybe More

On Monday night President Trump posted this on twitter:

In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!

He also said in a Tuesday press conference that “It would be wrong and unjust for Americans laid off by the virus to be replaced with new immigrant labor flown in from abroad.” This presumes unjustly that immigrants take jobs from Americans.

We represent GREAT immigrants who want to know what all this means. The Executive Order (EO) was issued Wednesday, (you can read the actual document here) and below is our analysis of who it does and does not impact:

His EO impacts people who are trying to enter the country as immigrants after 11:59 p.m. Eastern Time on April 23, 2020 for an initial period of 60 days. Trump hinted in a press conference it could be extended. It will not impact U.S. citizens or Lawful Permanent Residents (LPRs or Green Card holders) and spouses and minor children under 21, sibling if both under 21). The bans primarily affect immigrants (people applying for immigrant visas) seeking to enter the United States.

It will not affect people coming temporarily on work visas. It will not affect people applying for green cards in the United States through the adjustment of status process.

The entry ban also doesn’t apply to someone already in the U.S. on the effective date, and also those who already have a valid immigrant visa on the effective date. So if someone has a valid immigrant visa in hand, it can still be used to enter.

The ban has some exceptions particular to a person’s job or category, and people in these circumstances can still enter despite the ban:

Any alien seeking to enter the United States 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 Secretary of State, the Secretary of Homeland Security, or their respective designees;  and any spouse and unmarried children under 21 years old of any such alien who are accompanying or following to join the alien, and

Any alien applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program.

It excludes from the ban members of the U.S. Armed Forces and spouse and children.

Other exceptions from the ban include people whose entry would be in the national interest or certain special immigrant visas.

The section of law that Trump used for the legal basis of the EO is Immigration & Nationality Act Section 212(f) which reads: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

That is a sweeping power given to the President by Congress in 1952.

The Supreme Court has held this power to be fairly absolute as in Trump v. Hawaii, where the Supreme Court held that, section 212(f) "exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions." It only requires Trump to decide the entry of aliens is detrimental to the interests of the United States.

This EO could be challenged in court, and could be “enjoined” (stopped) or allowed to proceed.

What’s next? Who knows, but the EO says that within 30 days the Secretaries of Homeland Security, Labor and State should report on what limits to place on nonimmigrants. There is surely another ban to come on that score.