Dear Sophie: How will President Trump’s order ‘suspending immigration’ affect me?

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie:

The president said he would stop immigration due to COVID-19. I work at a biotech firm that’s doing research on a coronavirus treatment. I’m currently in the U.S. on an H-1B visa, and my company is sponsoring me for a green card. How will this affect me?

— Scientist in South San Francisco

Dear Scientist:

Thank you for everything you do! As you mentioned, the president tweeted last week that immigration would be suspended. However, the crazy thing is that the proclamation has been issued, and it’s really just a rehashing of the status quo. However, a lot of people haven’t learned this yet, so they’re scared. I just recorded a video about how immigration is still possible. So employers and immigrants can take a deep breath, things are ok.

The proclamation that President Trump signed last Wednesday falls far short of the outright suspension of immigration he tweeted about on Monday. The order places a very limited 60-day moratorium on issuing green cards to individuals seeking to come to the U.S. from abroad. Aimed at protecting job opportunities for unemployed Americans and relieving U.S embassies and consulates of the green-card processing workload, this “temporary suspension” has already begun. It’s possible that it could be extended beyond 60 days.

Most people with U.S. immigration needs are not affected by this proclamation, such as people who are:

  • Adjusting status from a temporary visa to a green card while in the U.S. (Form I-485)
  • Coming to the U.S. on temporary visas for work or travel subject to the existing travel restrictions (such as travel to China or the Schengen area in the last 14 days).
  • Filing for a non-immigrant status extension in the U.S., such as H-1B.
  • Beginning the green card process in the U.S. with PERM, I-140 and I-130
  • Changing status from one non-immigrant status to another within the United States.

What this new policy actually means is that no employment- or family-based green cards will be issued to candidates living outside of the U.S. except for spouses and dependent children of American citizens, physicians, nurses, or other healthcare professionals who are coming to the U.S to perform research or work to combat COVID-19 in the next couple of months. The Migration Policy Institute estimates 26,000 individuals will be blocked from getting green cards for each month the order remains in effect.

However, to me it seems like there’s not really that much of a marginal effect, since all the U.S. consulates around the world have been closed anyway for weeks due to COVID-19 concerns and visas are only being issued in emergency (think life-or-death) situations.

Also exempt from this proclamation are foreign nationals who are:

  • Applying for an EB-5 investor green card.
  • Members of the U.S. armed forces and their spouses and dependent children.
  • Deemed to have skills or knowledge that is in the national interest.
  • Important in helping U.S. law enforcement.
  • Prospective adoptees.
  • Seeking asylum.
  • Iraqi or Afghan nationals who have worked for the U.S. government and qualify for special green cards.

Legal challenges to the new policy are expected and a temporary stay could occur.

Even before Trump’s latest order, the issuance of both visas and green cards has temporarily stopped due to coronavirus-related closures and travel restrictions. U.S. embassies and consulates have been closed to routine visa and green card processing and travel bans from some countries are in effect through at least June 30. In addition, U.S. Citizenship and Immigration Services (USCIS) offices have been closed to the public due to COVID-19, effectively canceling all green-card interviews. An interview with an immigration official is required for all green cards. USCIS announced last week it may reopen offices as early as June 4.

The good news for you is that the temporary policy will not impact your prospects for getting a green card. Your employer will still be able to submit a green-card petition on your behalf including PERM and the I-140.

The U.S. Department of Labor is expected to continue processing labor certifications (PERM), which is the first step your employer needs to take in the green-card process. Before the COVID-19 pandemic, the Labor Department took anywhere from four to seven months to review labor certifications, so you and your employer should take that timing into consideration. Remember your employer should submit an I-140 green-card petition and labor certification at least one year before the sixth year of your H-1B so you can qualify for AC21 extensions.

Additional immigration restrictions may be coming down the pike: Trump’s order calls on the Secretaries of Labor, Homeland Security, and State to review temporary visa programs and recommend changes that would “stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” Earlier this week, Trump said another, more restrictive executive order on immigration is under consideration. He didn’t offer any details other than saying that migrant farmworkers would not be affected. We’ll continue to monitor the situation and keep our readers updated.

Remember: Immigration still remains possible. The U.S. is a democracy with checks and balances. The president’s authority to change immigration policy is limited and any overreaching is sure to prompt additional legal challenges.

Despite the current climate of uncertainty and unpredictability, one thing remains crystal clear: Immigrants are key to maintaining and restoring America’s physical and economic health. More than three million immigrants work in the health care system in the U.S. as doctors, nurses, researchers, and health-care workers, according to a research article published last year. That means about 1 in 4 health-care workers are immigrants. Moreover, immigrant-owned businesses employed more than 7.9 million workers, according to data from the U.S. Census Bureau’s 2017 American Community Survey analyzed by the New American Economy. In 2017 alone, households led by immigrants contributed more than $400 billion in tax revenues to federal, state, and local governments. Most unicorn startups have at least one international founder. Immigrants create a plethora of jobs for U.S. workers.

Be well, do good work and keep in touch.

— Sophie


Have a question? Ask it here; we reserve the right to edit your submission for clarity and or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms; if you’d like to be a guest, she’s accepting applications!