Trump's Tweet About Suspending Immigration

LATEST: See our other blog post for the actual Executive Order and what it means HERE.

UPDATE: Trump says in a press conference that the suspension of immigration will be for immigrants (those seeking green cards) who are “flown in from abroad” and will be for 60 days initially then re-evaluated. Here are his statements, followed by my analysis:

“[I]n order to protect American workers, I will be issuing a temporary suspension of immigration into the United States; you heard about that last night.  By pausing immigration, we’ll help put unemployed Americans first in line for jobs as America reopens.  So important.  It would be wrong and unjust for Americans laid off by the virus to be replaced with new immigrant labor flown in from abroad.  We must first take care of the American worker — take care of the American worker.

This pause will be in effect for 60 days, after which the need for any extension or modification will be evaluated by myself and a group of people, based on economic conditions at the time.  This order will only apply to individuals seeking a permanent residency.  In other words, those receiving green cards — a big factor — it will not apply to those entering on a temporary basis.

As we move forward, we’ll examine what additional immigration-related measures should be put in place to protect U.S. workers.  We want to protect our U.S. workers.  And I think, as we move forward, we will become more and more protective of them.”

My thoughts: This will stop people from entering the country on immigrant visas, when they have been issued them after an interview at the consulate. It should not affect people who apply for adjustment of status in the United States, and the exemptions I mentioned below in the first draft of this blog post would apply (such as being a close relative to a U.S. citizen or green card holder).

On the night of April 20, 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!

Because we represent GREAT immigrants, many of our clients are asking us this morning what this means.

The answer is that we do not yet know for sure, because this is only a Tweet and because the Executive Order (EO) that he refers to hasn’t been issued. But we have a sense of what it could mean, so here are our very approximate ideas:

His EO will likely impact people who are trying to enter the country for a period of time after the EO’s effective date. We have heard it might be for 120 days or “something.” It will not impact U.S. citizens or Lawful Permanent Residents (LPRs or Green Card holders) and based on previous travel bans it will probably exempt some of their close relatives (spouse, minor child under 21, sibling if both under 21). The bans primarily affect nonimmigrants (like work visas) seeking to enter the United States, and immigrants (people with immigrant visas) seeking to enter the United States.

The section of law that Trump will likely use 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 forthcoming EO is likely to be challenged in court, and could be “enjoined” (stopped) or allowed to proceed.

The EO will probably provide some exceptions for some people in certain industries. It will probably not affect green card applications in process with USCIS since that isn’t an entry but rather an adjustment of a person’s status who has already entered. But we aren’t sure about this. It should not impact extensions of status in the nonimmigrant work categories.

We will provide an outline of who is banned from entry to the United States and for how long in a future blog post here, once the EO is issued.