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Statutes of Liberty: The 60-Day Immigration Ban and What It May Bring

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

You may have read that the President of the United States has banned all green card issuance for sixty days. Fake news.

On April 21, President Trump promulgated an Executive Order which banned the issuance of immigrant visas at U.S. Embassies abroad, with broad exceptions for spouses and children of U.S. Citizens.

Who was covered by the Order? Well, again, spouses and children of US citizens — who make up the bulk of immigrant visa applicants — were exempt. Parents of U.S. citizens, spouses and children of U.S. permanent residents, and siblings of U.S. citizens are subject to the order. Employer-sponsored green cards are also subject to the order. Folks in those categories are stuck, and will be stuck for at least the two months covered by the Order.

That sounds like a big deal, and, for the people affected by the Order, it is a serious hardship. But, as supporters and detractors of legal migration quickly noted, the Order is more bark than bite. Due to COVID-19, U.S. Embassies and consulates abroad were already closed for visa issuance, so the order changed nothing in the short run. And, perhaps more importantly, the Order changed nothing for the following categories of people:

  1. People inside the United States applying for green cards. Most green cards are awarded to people already inside the United States.
  2. Temporary workers, like H-1B tech workers and H-2A agricultural workers. Hundreds of thousands of such workers come to the United States legally each year.
  3. Asylees and refugees, who are specifically exempt from the Order.

So, when the text of the order was released, immigration restrictionists yawned with disappointment and immigration boosters cheered. Our view is that both sides should wait and see. The Order contains a little-discussed provision which instructs the relevant federal departments to prepare recommendations to further implement the goals of the Order.

Stephen Miller, whose role in the Trump Administration’s immigration apparatus has been a matter of widespread public discussion, has been quite open about the benefits of this “further recommendations” clause. His view, reportedly, is that the Order is a first step towards a broader reform of the U.S. immigration system: turning off the taps of what restrictionists call “chain migration.”

Mark Krikorian, the Executive Director of the Center for Immigration Studies, advocates using the Order as a stepping stone toward ending the H-1B program altogether, and restricting other types of guest worker program as well.

Whether these proposals are implemented by the Administration will determine whether the Executive Order is a meaningless footnote or a bellwether. Our bet is that the Executive Order will be a footnote, but that’s a political prediction, not a legal judgment.

For now, the important legal facts are these: if you are inside the United States, and you want to apply for a green card, you still can; if you are outside the United States, and you want to apply for a green card, you still can’t. If you already have a green card and want to apply for U.S. citizenship, the Order changes nothing for you: you should apply to become a citizen if you qualify.

As always, we welcome any comments and will do our best to respond.

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