Trump's Proclamation: More Bark than Bite?

President Trump’s Immigration Proclamation only limits a narrow set of potential immigrants, with little impact on protecting the U.S. labor market. It instead appears to be a stepping stone to pursuing an anti-immigrant agenda.

On April 22, 2020, President Donald Trump signed a Proclamation intended to suspend the entry of immigrants who purportedly present a risk to the U.S. labor market in the period of economic recovery following the COVID-19 outbreak. His Proclamation instead appears to be testing the waters on banning family reunification immigration, what he has previously termed as “chain migration.” This post describes the elements of the Proclamation, the groups actually impacted by the ban, and the implications of the Proclamation on immigration.

By Kalpana V. Peddibhotla & Roujin Mozaffarimehr

A.  Breakdown of the Proclamation

According to Section 1 of the Proclamation, Section 1 applies to all aliens entering as immigrants.^[1] Section 2 then exempts a multitude of immigration classifications; leaving the question open as to whom this does  apply. We’ve deciphered this in the table below. Most significantly, as this table reveals, the classes of individuals that are banned are NOT those that are likely to harm the U.S. labor market and instead are the elderly parents and aging siblings of U.S. citizens, among others. (Please note that we dispute the underlying premise that immigrants harm the economy. There is a lot of academic research that shows otherwise.)

 

Section 1 of Proclamation: Suspension and Limitation on Entry	Section 2 of Proclamation: Exceptions to Section 1	Who this Ban Really Impacts
Entry into the United States of aliens as immigrants   “Immigrants” in the context of U.S. immigration law refers to Lawful Permanent Residents (“LPRs”), aka “Green Card” holders. It does not refer to individuals entering the country temporarily on a “non-immigrant visa” such as temporary non-immigrant workers (i.e. H, E, L, O, P, R, visas), or visitors (B-1/B-2).	Individuals & Family Based Immigrants
	Lawful permanent residents (Green Card holders)     Spouses of US Citizens         Children of US Citizens[2] and IR-4 and IH-4 prospective adoptees	Parents of U.S. citizens (typically they are over the age of 60 and retired).[3] (Immediate Relatives) Unmarried sons and daughters of U.S. citizens who typically have waited 6-23 years for their interviews.[4] (F1) Spouses and children (under 21) of Green Card holders who typically have already waited 2 years for their interviews.[5] (F2A) Unmarried sons and daughters (over 21) of Green Card holders.[6] (F2B) Married sons and daughters of U.S. citizens (who typically have already waited 12-20 years for their interviews)[7] (F3) Siblings of adult U.S. citizens who more than likely have waited 15 to 20 years for their immigrant interview.[8] (F4)
	Employment Based Immigrants
	Immigrant doctors, nurses, healthcare professionals, medical researchers, and related essentials workers[9]   Investors (EB-5 applicants)[10]   Immigrants whose entry would be in the national interest[11]	Employment Sponsored Immigrants who are currently abroad and other than the healthcare professionals and the other exceptions noted in Column 2.[12] It’s important to note that this will be an extremely limited group as discussed below. Experts and entrepreneurs at the top of their field (EB-1A) and who are currently abroad and other than the healthcare professionals and the other exceptions noted in Column 2
	Other Individual Immigrants
	Immigrants supporting law enforcement objectives   Members of the US Armed Forces, their spouses, and their children   Special Immigrant Visa applicants (SI and SQ)[13]	Other Special Immigrant Visa Applicants, including Religious Workers , Panama Canal Company Employees, Canal Zone Government Employees, U.S. Government in the Canal Zone Employees, International Organization or NATO-6 Employee or Family Members, Juvenile Declared Dependent on juvenile courts, and Broadcasters.

 

B.  This Proclamation will have little impact on protecting the U.S. labor market. It is instead a stepping stone toward pursuing an anti-immigrant agenda. 

1. Family Based Sponsorship

 It’s important to note that there are already certain protections that are baked into the immigration system in order to protect U.S. workers and our public benefits, and this Proclamation does not provide the added protections suggested by the President.

• First, all family based immigration requires that the U.S. Citizen or LPR sponsoring their family member sign an affidavit that they “agree to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.”^[14]
• Second, immigrants are required to submit a Public Charge Questionnaire (Form DS-5560), so that the Department of State can assess “based on the totality of an applicant’s circumstances, whether it is more likely than not that the applicant will become a public charge at any time in the future, after the alien’s admission to the United States.”^[15]
• Third, due to the new Public Charge Rule that became effective on February 24, 2020, in order to overcome “negative” factors, the immigrating family member must show that they have or will have health insurance after entering the U.S.
• Finally, there’s the reality of who these immigrants are that make it extremely unlikely that they would impact the types of jobs that President Trump is purportedly^[16] trying to protect.
  • Parents of adult US citizens that would be immigrating to the U.S. are likely to be retired and over the age of 60. This is because U.S. citizens with foreign parents are typically naturalized citizens, and they must be over the age of 21 to sponsor their parents.
  • Siblings of adult US citizens have typically been waiting for 15 to 20 years + for the priority date of their visas to become current before they are allowed to apply for an immigrant visa.

With regard to the family members of Green Card holders (i.e. spouse & children under 21), barring their entry seems arbitrary given that the Proclamation would permit the entry of the same relatives of U.S. citizens. Green Card holders are eligible for U.S. citizenship after meeting certain time requirements; and to bar their spouse and children from entering the U.S. after they had waited for an average of 2 years for their sponsorship seems arbitrary.

 2.  Employment Based Sponsorship

The Proclamation claims to be primarily focused on preventing employment-sponsored immigrants. It’s important to clarify the employment sponsorship process in order to highlight that the Proclamation would only apply to a very narrow group of individuals – thus, we contend that this section of the Proclamation in particular is nothing more than a dog whistle to his base – making them believe that he is protecting them from foreign workers, when in fact very few people will fit this category.

3.  Employment Based Categories

EB-1:      Priority Workers – Extraordinary Aliens in Science, Business & the Arts; Outstanding
Researchers; and Executives & Managers.

This category is deemed a “priority worker” because they typically encompass the 1% of the world’s talent that the U.S. is trying to attract. These are often your Ph.D.’s, post-doctoral fellows, captains of industry, etc.  The priority date^[17] for this category is backlogged for nationals of most countries by 10 months; and for India by 5 years, and for China by nearly 3 years.

EB-2:      Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability

This category applies to foreign nationals who have higher than the equivalent of a U.S. Bachelor’s Degree or are deemed to have Exceptional Ability.^[18] The priority date for this category is backlogged for India by 11 years, and for China by 5 years.

EB-3:      Skilled Workers, Professionals, and Other Workers

This category applies to foreign nationals who have at least the equivalent of a U.S. Bachelor’s Degree or are skilled workers.^[19]  The priority date for this category is backlogged for nationals of most countries by 3 years, and for India by 11 years. It should be noted that this category frequently “retrogresses”, so the actual wait time is many more years. For example, for Indians the wait may be more like 20 years.

   4.  Where are these workers located and will the “ban” apply to them? They are most likely in the U.S. and the ban would unlikely NOT apply to them.

The reality is that most individuals who fall into the EB-1, 2, and 3 categories are already in the U.S., and the ban, therefore, does not apply to them. This is due to the fact that a U.S. employer is not going to sponsor someone for a Green Card unless that individual is already working for them here in the U.S., especially if they would otherwise have to wait over a decade for the individual to start working for them on the Green Card.

C.  The Proclamation inexplicably targets elderly parents and aging siblings.

The Executive Order claims that the motivation for this ban is based upon the “impact of foreign workers on the United States labor market” and the conservation of State Department resources so that they may support United States citizens abroad. As can be gleaned from the table and discussion above, the ban effectively bans elderly parents and aging siblings of U.S. citizens, among others. It appears that the President is really testing the waters on banning family reunification immigration, which he has previously termed as “chain migration.”

This has been a key pillar of President’s Trump’s immigration platform in his election and re-election campaigns. He has claimed that entry of immigrants through the family reunification process “de-skills the labor force, puts downward pressure on wages, increases the deficit, and undermines national security.”^[20] First, family reunification takes decades. It can take 10-20 years for adult unmarried siblings of U.S. citizens to reunite. It takes legal permanent residents similarly lengthy wait periods to reunite with spouses, children, siblings, and parents. Therefore, the idea that immigrants are bringing over “large numbers of foreign relatives” that are putting a strain on American jobs is unfounded especially given these long wait times.

This Proclamation essentially reduces the entry of legal immigrants into the United States, persons who have waited upwards of 10 to 20 years to reunify their families.

D.   Even though the Proclamation is limited to 60 days – it may become a steppingstone for further action.

All of our U.S. consulates abroad are currently closed, with closures rolled out beginning on March 13, 2020.^[21] Those measures were rightly taken in order to protect the health and safety of our consulate employees and visitors to the consulates. Several countries have limited or suspended air travel, including travel exiting their country. Visa processing and travel have therefore effectively been halted for one month. So, what’s the big deal?

While the Presidential Proclamation purports to expire 60 days from its effective date, it allows for the President to extend the ban “as necessary.” As we have seen with the Travel Ban of 2017^[22] which initially banned entry for 90-120 days, that Executive Order has not only been extended but also expanded. The 2017 Travel Ban is not only still in effect, but it has been expanded to include additional countries since its first iteration. Given that the effect of this Presidential Proclamation is not truly tied to the economic or health impacts of COVID-19, it is conceivable that it may be extended beyond the 60 day period and apply to more groups in the same manner as the 2017 Travel Ban.

While the President cites INA Sec. 212(f) and 215(a) as the authorities for this Presidential Proclamation, such authority is not sweeping and has been previously checked by the U.S. Supreme Court. This Proclamation is poised for litigation in the coming days. But given how the Supreme Court has upheld the 2017 Travel Ban, we are concerned that it will similarly uphold this truly arbitrary immigration ban.***

^[1] “Immigrants” in the context of U.S. immigration law refers to Lawful Permanent Residents (“LPRs”), aka “Green Card” holders. It does not refer to individuals entering the country temporarily on a “non-immigrant visa” such as temporary non-immigrant workers (i.e. H, E, L, O, P, R, visas), or visitors (B-1/B-2).

^[2] To qualify, the person must be an unmarried child under the age of 21. See  INA 101(b) (1) and 8 U.S.C. 1101(b)(1).

^[3] INA 201(b). U.S. Citizen adult children are required to provide evidence of financial sponsorship for their parents, and under the new Public Charge Rules, evidence of healthcare insurance. See discussion below in paragraph B.

^[4] INA 203(a)(1); “F1 Preference Category.” Financial sponsorship by the U.S. citizen sponsor and evidence they would not become a Public Charge are prerequisites.

^[5] INA 203(a)(2)(A); “F2A Preference Category.” Spouses and Children of Green Card holders are also required to provide evidence of financial sponsorship by their spouse and evidence they would not become a Public Charge.

^[6] INA 203(a)(3); “F3 Preference Category.” Financial sponsorship by the U.S. citizen sponsor and evidence they would not become a Public Charge are prerequisites.

^[7] Married adult children of U.S. citizens require financial sponsorship by the U.S. citizen sponsor and evidence that they would not become a Public Charge.

^[8] Siblings require similar financial sponsorship by the U.S. relative, and evidence they would not become a Public Charge.

^[9]  Persons in the medical field typically work in the U.S. pursuant to employment-based sponsorship (EB-1, EB-2, EB-3). This exception also includes any spouse and unmarried children under 21 years of age accompanying or following to join the immigrant applicant.

^[10]  See 84 FR 35750.

^[11]  This exception likely applied to persons pursuing a green card through the National Interest Waiver program. See INA §203(b)(2)(B).

^[12] Employment Sponsored Immigrants abroad require financial sponsorship by the sponsoring employer and evidence that they would not become a Public Charge.

^[13] This includes their spouses and children.

^[14] Immigration & Nationality Act (INA) Section 213A (8 USC §1183a)

^[15] https://travel.state.gov/content/dam/visas/public-charge/DS-5540-instructions.pdf

^[16] We use the term “purportedly” as there is no evidence that the jobs identified by President Trump would indeed be impacted by the Proclamation.

^[17] A priority date is the date used by the Department of State to determine an individual’s place in line for receiving an immigrant visa where there are a limited number of visas available in a given year for individuals of certain visa categories and based on their country of birth. These priority dates are determined by the date a family immigrant petition or employment immigrant petition was properly filed with the USCIS.  Individuals can file their immigrant visa application when their priority date coincides with the dates published by the Department of state in their monthly visa bulletin for that immigrant category and country of birth.

^[18] Exceptional ability is defined as a person holding, “a degree of expertise significantly above that ordinarily encountered in the science, arts or business.” See https://www.uscis.gov/working-united-states/permanent-workers

^[19] Skilled workers are defined as, “individuals whose jobs require a minimum of 2 years training or experience, not of a temporary or seasonal nature. The skilled worker must meet the educational, training, or experience requirements of the job opportunity.” See https://www.uscis.gov/working-united-states/permanent-workers

^[20] See https://twitter.com/WhiteHouse/status/942538158750818304; See also https://www.whitehouse.gov/articles/time-end-chain-migration/?utm_source=twitter&utm_medium=social&utm_campaign=wh_20171217_immigration-graphics_15

^[21] https://travel.state.gov/content/travel/en/traveladvisories/COVID-19-Country-Specific-Information.html

^[22] See Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry into the United States.”