Tag Archive for: Proclamation

Cyrus Mehta

The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers

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By Cyrus D. Mehta & Kaitlyn Box*

On November 26, 2021, President Biden issued a Presidential Proclamation entitled “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019” in response to a report made by the South African government to the World Health Organization (WHO) that a new B.1.1.529 (Omicron) variant of the virus that causes COVID-19 was detected in the country. Reports from the WHO indicate that certain characteristics of the Omicron variant, including an increased risk of reinfection, make it a particular cause for concern. The Proclamation bans many travelers who have been in South Africa or neighboring countries Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe in 14 days preceding their entry from coming into the United States. The administration has indicated that it could add additional countries to the list if needed.

Unlike the previous COVID-related travel ban for India that applied only to nonimmigrants, this Proclamation, like the omnibus Proclamation of January 25, 2020, bars nonimmigrants and immigrants alike from entering the United States. The ban appears to apply even to individuals who are fully vaccinated. President Biden’s most recent Proclamation does share one commonality with its predecessors, though – it exempts numerous categories of travelers from the restrictions, including U.S. citizens, LPRs, spouses of US citizens or permanent residents, parents of minor US citizens or permanent residents, and noncitizens whose entry would be in the national interest. Several other countries have issued similar restrictions on travel from South Africa and neighboring countries, including the European Union, Australia, Bahrain, Brazil, Canada, Egypt, Jordan, Saudi Arabia, Singapore, Thailand, Turkey, and the United Kingdom. Japan and Israel have sealed their borders to all foreigners.  On November 27, 2021, the Department of State also issued a Level 4 Travel Health Notice for South Africa, indicating: “Do not travel to South Africa due to COVID-19.”

As we have argued in prior blogs,  travel bans are not an effective means of curbing the spread of COVID-19. Like previous iterations of the COVID-related travel bans, this most recent Proclamation outlines a number of exemptions for certain categories of travelers, all of who are just as likely to carry COVID-19 as the immigrants and nonimmigrants who are barred from entering the United States. Even a nonvaccinated U.S. citizen who had recently been present in South Africa could freely enter the United States under the Proclamation, while a fully vaccinated nonimmigrant could not. Of course, all travelers must undertake COVID tests before entering the US, and noncitizen travelers with very few exceptions must be vaccinated.  Ensuring that these protocols are strictly adhered to, including testing after arrival in the US, and even quarantining as necessary, will be more effective than a travel ban. Travel bans seem to be based more on politics rather than on science so that leaders can demonstrate that they are doing something to prevent the spread of the new variant even if it has spread already and its effects are largely unknown.  The existing set of Presidential Proclamations suspending the entry of nonimmigrants who had recently been present in a host of countries impacted by COVID-19 terminated as recently as November 8, 2021. Like its predecessors, the new Proclamation is likely to do little to prevent COVID-19 infections in the United States, but is sure to devastate families, separate employees from their U.S. employees, and cause untold hardship and confusion for unwary travelers. Past precedent has also shown that once a ban is imposed, it is not likely to get rescinded soon.

Furthermore, the Proclamation penalizes South Africa for detecting the Omicron variant and altering the WHO to its dangers. South African President Cyril Ramaphosa has condemned the ban, describing its uselessness in preventing the spread of COVID-19 and its potential for causing serious damage to the South African economy. Further underscoring the futility of the ban, South Africa has higher vaccination rates and more sophisticated scientific and medical facilities than most African countries, though it has still faced some challenges in administering vaccines quickly enough. Although the Omicron variant has also been detected in Belgium, Brazil, Hong Kong, Israel, the United Kingdom, and Germany, these countries are not presently included in the ban. The travel restrictions imposed on South Africa and its neighbors may even make other countries less likely to report the discovery of other new variants, lest they too face an onerous travel ban. As a result of flights not going into South Africa, one public health official, Tulio de Oliveria, angrily tweeted that his lab will run out of reagents needed to test for the variant.

Fortunately, the U.S. Embassy in South Africa has announced that South African consulates will continue processing visa applications, and embassies in neighboring countries appear to be following suit. These operations are consistent with recent federal court decisions holding that the State Department cannot use COVID-related travel restrictions as a justification for refusing to issue visas. It is also hoped that this signals that the ban may not remain for very long. Until these ineffective travel bans are rescinded for good, however, they will continue to cause serious hardship for travelers from many African countries while doing little to prevent the spread of the Omicron variant.

(This blog is for informational purposes, and should not be relied as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans

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By Cyrus D. Mehta and Kaitlyn Box*

President Trump has mastered the Dark Arts of immigration bans. On June 22, 2020, Trump signed yet another Presidential Proclamation further restricting immigration into the United States. The new proclamation is an extension of the previous proclamation issued on April 22, 2020 that suspends certain green card applications and limits highly skilled workers and several nonimmigrant visa categories. The proclamation is effective as of June 24, 2020 and expires on December 31, 2020. The proclamation may be modified during this period as deemed necessary.

The Proclamation supposedly cites a desire to preserve jobs for American workers and high unemployment rates in the face of the COVID-19 pandemic as a rationale for suspending the entry of certain green card applicants and highly skilled workers. It states without any foundation “American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work.  Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers.  Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers”. In reality, however, both this Proclamation and the April Proclamation that it expands upon are part of a broader strategy by the Trump administration aimed at curtailing all immigration.

Foreign nationals who were outside the United States on the effective date of the proclamation (June 24, 2020), do not have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on that date, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa are barred. Additionally, accompanying or following to join dependents seeking to obtain H-4, L-2, or J-2 visas who were outside the U.S. on the effective date are also barred. However, if the principal H-1B, H-2B, J-1, or L-1 beneficiary is already in the United States, or otherwise exempt (see below), it is unclear at this time whether this bar will apply to dependents who will subsequently apply for H-4, L-2, or J-2 visas at the U.S. Consulate.

The Proclamation does not apply to: anyone who was inside the United States on June 24, 2020, individuals who are outside the United States and have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020, Lawful permanent residents of the United States (green card holders), spouses and children of U.S. citizens, individuals seeking to enter the United States to provide temporary labor or essential to the United States food supply chain; and anyone whose entry would be in the national interest as determined by the Departments of Homeland Security and State. CBP headquarters has confirmed that Canadians entering as H, L or J nonimmigrants are exempt from the proclamation.

The Proclamation also seems to leave open the door for other measures aimed at restricting the entry of certain categories of immigrants, or even taking action against individuals who have already been admitted. Section 5(b) of the Proclamation states that: “The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1))”.  INA 212(a)(5) renders a foreign national who seeks to enter the United States to perform skilled or unskilled labor is inadmissible unless it has determined that there are not a sufficient number of US workers who are qualified for the same job and the employment of such foreign nationals will not affect the wages and working conditions of US workers. Most foreign nationals have already received labor certifications after their employers unsuccessfully conducted a recruitment of U.S. workers in the labor market.   Though this provision does not have any present effect, it seems to enable the administration to take further actions to limit the number of immigrant visa workers in the United States. One could even imagine the provision being invoked to rescind some individuals’ approved labor certifications and I-140 visa petitions, should the administration decide to do so in the future. This would have a devastating impact on the hundreds of thousands of people born in India who have been waiting for green cards in the EB-2 and EB-3 backlogs. Of course, such an action would be challenged in court since INA 204(j) has specifically allowed adjustment of status applicants whose applications have been pending for more than 180 days to “port” to new employers and still keep intact their labor certifications and I-140 visa petitions. Thus, there are provisions in the INA that contemplate that once the labor market has been tested, the test need not be repeated over and over again, even if the foreign national’s green card has been delayed due to  EB-2 and EB-3 backlogs.

Another insidious provision in the Proclamation, section 4(c)(ii), directs the DHS consistent with applicable law to “prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States.” While there are existing provisions in the INA that deem foreign nationals inadmissible for all of the above reasons, one who has been charged or arrested of a criminal offense should not be deprived of eligibility to work in the United States if the charges were dismissed or proved baseless, and the foreign national did not admit to the essential elements of a crime that would render him/her inadmissible.

The Proclamation stands to have a devastating impact on individuals in a variety of scenarios.  Due to numerous travel restrictions that have been put in place as a result of COVID-19, many individuals may have left the United States with a valid visa that has expired while that have been trapped outside the country. Under the new Proclamation, these individuals would not be able to reenter the United States. Family members of a principal visa holder are likely to be similarly impacted. One such situation arises when a principal visa holder was in the United States on the effective date of the Proclamation, but has dependent family members who are currently outside the U.S. without a valid visa. Because individuals who were inside the United States on June 24th, 2020 are exempt from the proclamation, David Isaacson is of the opinion that  family members of an individual who is in the United States are not “accompanying or following to join” an individual whose entry is suspended. Thus, spouses and children of an individual who is exempt from the Proclamation should arguably be able to reenter the United States, but one does not have any faith whether Trump’s State Department will agree with this perfectly reasonable interpretation. Indeed, although the proclamation clearly states that it will not apply to one who was present in the United States on June 24, 2020, the State Department seems to be indicating on Twitter that if such a person leaves, a visa will not be issued during the validity of the proclamation. This seems to be inconsistent with a plain reading of Section 3(i) that states that the proclamation will apply to an individual who “is outside the United States on the effective date of this proclamation.”

The situation is more complicated when reversed, however, with a principal visa holder, for example an H-1B, abroad and his/her H-4 spouse is in the United States. It is unclear how the Proclamation would apply to the H-4 spouse in this situation. Even if the H-4 spouse currently is in valid status, they would only be able to remain in the United States for a limited period of time before being deemed to be in violation of their status. The USCIS allows dependents of nonimmigrant visa holders to remain in the United States while the principal is temporarily outside the country. At the same time, USCIS prevent the “parking” of dependents in the United States for extended periods of time if the principal nonimmigrant worker only comes for occasional work visits.    Thus, if the H-1B is stranded abroad for several months until the end of the ban, which could potentially be extended beyond the end of 2020 depending on who wins in the presidential election this November, the H-4 spouse may no longer be considered to be in valid status. If the principal H-1B spouse’s job has been terminated, this would imperil the status of the H-4 spouse and children even sooner.

As with the April Proclamation, Trump relied on section 212(f) of the Immigration and Nationality Act (INA) to ban nonimmigrant workers. Although Trump also derived authority from 212(f) to issue the travel bans, the third iteration of which was upheld by the US Supreme Court in Trump v. Hawaii, there may be a basis to distinguish the latest Proclamations from the travel bans (see Building the Case to Challenge Trump’s Immigration Bans). The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice (see also  Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans. In its recent decision on DACA, the Supreme Court held that the administration has to factor in reliance interests before rescinding a benefit under the APA). This most recent Proclamation represents another attempt by the administration to draw artificial distinctions between certain categories of immigrants. The J visa category, for example, is impacted only “to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program”. Other categories of J visas were exempted from the proclamation, including the student and alien physician categories. The Proclamation also excludes other categories of nonimmigrant visas, including treaty trader (E-1) and investor (E-2) categories, entirely. Lawsuits are bound to be filed not just by H-1B visa holders separated from their families, as they would be the most sympathetic plaintiffs, but also by large multinational corporations whose highly placed executive who would otherwise be able to enter on the L-1A visa has been banned.

In conclusion, this proclamation disproportionately impacts Indians the most as they are the largest users of the H-1B visa. It is no coincidence that in 2016 Steve Bannon, who was then a strategist  to Trump and chairman of Brietbart News expressed concern that too many  CEOs of successful Silicon Valley tech companies were immigrants from Asia. Many of them came to the United on an H-1B, which has been targeted by this proclamation. This sort of hostility against immigrants has been expressed frequently by Trump and his senior advisor Stephen Miller. Brietbart News, from which Miller and other xenophobes in the Trump administration draw inspiration, has consistently railed against Indian immigrants and H-1B visa holders.  The proclamation will not protect American jobs by cruelly separating the H-1B worker from the H-4 spouse and children, many of them who have been in the US for many years waiting for their green cards in the EB-2 and EB-3 backlogs. Nor will this proclamation bring back American jobs when it bans a specialized knowledge intracompany transferee on an L-1 visa who had in depth knowledge of a company’s products and can help it to grow in the United States, which in turn would create more jobs.   While the proclamation flunks the economic test, for the xenophobe it is a dream come true as it incorporates an exhaustive wish list for restricting immigration under the cover of the pandemic that would otherwise have been impossible to pass through Congress.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Using a Sledgehammer to Crack a Nut: Trump Proclamation Bans Chinese Students and Researchers Linked to China’s “Military-Civil Fusion Strategy”

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President Trump has issued a proclamation limiting Chinese students wishing to study in the United States to undergraduates under certain conditions, and limiting Chinese researchers. The proclamation states that the People’s Republic of China (PRC) uses some Chinese students, mostly post-graduate students and post-doctoral researchers, to operate as “non-traditional collectors of intellectual property” in the United States. President Trump said that he therefore has determined that the entry of certain PRC nationals seeking to enter the United States “pursuant to an F or J visa to study or conduct research in the United States would be detrimental to the interests of the United States.”

The proclamation specifically bans nonimmigrants who enter on an F or J visa “to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy”.  The proclamation defines the term “military-civil fusion strategy” as actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.

President Trump has again relied on INA 212(f) to issue this ban on Chinese nationals who enter the US on an F or J visa who are associated with the vague Chinese “military-civil fusion strategy.” This is another case of Trump using 212(f) to rewrite immigration law. Given the vagueness of linking students to China’s military-civil fusion strategy, it would empower consular officers, and even CBP officials, to deny a visa or admission to just about any graduate student or researcher from China as the proclamation does not set any parameters. Trump’s proclamation will unfortunately also result in needless stereotyping. Just as so many people were branded as communists during the “red scare” under the McCarthy era, graduate students from China will also be associated with China’s military-civil fusion strategy. Although the ban is thought to impact 3,000 out of 360,000 Chinese students, many more can be impacted for mere suspicion of being linked to Chinese military-civil fusion strategy.

While there is evidence that the Chinese military has sponsored military scientists to study abroad described as a process of picking flowers in foreign lands to make honey in China, the overall benefits that Chinese graduate students and researchers bring to US universities far outweigh the supposed perils of benefiting China’s military progress. American universities will get adversely impacted if they cannot attract students from China in their graduate and doctoral programs who pay the full freight in tuition fees. When Chinese researchers study in the US and write research papers, they adopt the US model and their papers are peer reviewed before being selected for publication in English that can be accessed by anyone, and not just by the Chinese military. Moreover, 90% of Chinese students are still in the US a decade since they came.

Moreover, there are enough provisions in the INA that would allow a consular officer to deny a visa. In addition to denying an F-1 visa under the usual INA 214(b) for demonstrating immigrant intent, an applicant for a student or research visa can also be denied for security grounds under INA 212(a)(3). Thus, Trump’s latest Chinese ban is akin to using a sledgehammer to crack a nut. It also bypasses Congress authority to amend the INA. In fact, there is a proposed bill sponsored by Senators Cotton and Blackburn that would be even more sweeping by prohibiting t0 Chinese nationals from receiving visas to the United States for graduate or post-graduate studies in STEM fields. The fact that it will be unlikely for these Senators to pass such a draconian bill through both houses of Congress does not justify Trump’s proclamation that rewrites the INA.

The proclamation also contemplates revoking the visas of affected Chinese students and researchers who are already in the US. Under other circumstances, when a nonimmigrant’s visa is revoked while in the US, they can continue to maintain status, but will need to obtain a new visa upon departing the US. Chinese students subject to the ban will likely not be able to apply for new F-1 or J-1 visa unless they qualify for one of the limited exceptions.

Finally, the proclamation leaves open the possibility of further restrictions as it also calls for agency review of “nonimmigrant and immigrant programs” and recommendations for “any other measures requiring Presidential action that would mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”