President to Suspend Immigration Temporarily

Topic Page: Covid-19 and Immigration

Update (4/22/20): During a press conference on Tuesday, President Trump announced his Executive Order. President Trump stated that the order he earlier described as suspending immigration would only effect legal permanent residents, and not temporary guestworkers, as had been previously expected. Center for Immigration Studies Executive Director, Mark Krikorian reacted:

It's actually "temporary" worker programs that should have been paused first. They're not really temporary (most end up staying) but they're not free workers, able to change jobs/occupations/locations at will, and so undermine US workers even more than extra green-card holders.

— Mark Krikorian (@MarkSKrikorian) April 22, 2020

Editors Note: The original article below was published on 4/21/20 before President Trump's announcement.

• On Monday night, the president stated that he would "be signing an Executive Order to temporarily suspend immigration into the United States" in response to the economic downturn caused by the Wuhan coronavirus.
• The parameters of that order are not clear, but the president will likely suspend the entry of temporary workers coming to the United States to perform work that is deemed non-essential to the country's response to that disease, and may well suspend the entry of foreign nationals seeking entry on all employment-based visas, and perhaps all immigrants as well.
• Congress has given the president the authority to "suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants" if he finds their entry "would be detrimental to the interests of the United States." The Supreme Court has recently reinforced that authority.

On Monday night, the president issued the following tweet:

There is a lot packed into those 38 words, and, given the fact that the referenced executive order (EO) has not been issued, the full impact of it is not entirely clear. That said, current fast-moving events offer some guidance.

The "invisible enemy" is plainly the Wuhan coronavirus. At the time that I write this, Johns Hopkins University reports that there are 788,110 confirmed reports of the disease in the United States, with certain localized "hot spots" in the Northeast, Louisiana, and a handful of other locations. Most of the country is under "stay-at-home" orders, although some states are considering or have reported reopening plans.

With respect to "protect[ing] the jobs of" American workers, the president is plainly referencing the fact that 22 million Americans have applied for unemployment in the last four weeks. On Tuesday, Gallup reported that more than 50 percent of Americans have said that their "financial situation is getting worse." Significantly: "Younger adults [aged 18 to 29] show a disproportionately large decline in their personal financial expectations moving forward." Some 22 percent of younger adults say that "unemployment or job loss" is the biggest financial issue that they face.

This unemployment has hit many different sectors of the economy. Quoting Moody's Senior Vice President Robard Williams, ABC News reported on Thursday:

"Job losses have so far been concentrated in sectors directly impacted by quarantine restrictions. ... However, as shutdowns continue, job losses will likely extend into other areas of the labor market, such as business and professional services where firms may begin to see lower revenues from a second order pull back in demand."

Ironically, even healthcare workers have faced furloughs and layoffs as a result of the Wuhan coronavirus as medical procedures are deemed non-essential and patients skip check-ups. According to USA Today:

The workers range from dentists and general surgeons to medical assistants and nurses, from allergists and dermatologists to primary care physicians and pediatricians.

By June, an estimated 60,000 family practices will close or significantly scale back, and 800,000 of their employees will be laid off, furloughed or have their hours reduced as they see a decline in business during the coronavirus pandemic, according to a HealthLandscape and American Academy of Family Physicians report released Thursday.

That leaves the question of how the EO will restrict immigration to assist American workers.

The most obvious answer is that it will, at least, restrict the number of nonimmigrant (temporary) guestworkers who are admitted to the United States, in the short run.

In response to the current economic climate, former Attorney General (AG) and current Republican candidate for Senate from Alabama Jeff Sessions issued a press release on Thursday in which he called for a halt to immigration to the United States "until Americans are back to work". He stated:

Under my plan, we will put Americans back to work before we bring in more foreign labor. Visitors who do not have the virus can still come to the United States, and foreign investment in our businesses and economy will continue to be welcomed, but employment immigration will cease until our national unemployment rate is back below 3.5 percent, as it was in February before this pandemic. Rare exceptions will be granted only in critical, time-sensitive industries like farming, and only if the employer proves they tried to hire Americans first.

...

The United States issues more than 1.4 million "temporary" visas to foreign workers per year, and that's not even counting new green cards (permanent residents), refugees, illegal aliens, or those who illegally overstayed their visas from previous years.

To say that Sessions and the president have a complicated relationship would be an understatement. That said, Trump appointed Sessions as his AG based largely on Sessions' immigration posture, so the president would at least give consideration to Sessions' logical points on the issue. And Sessions has been quick to link the president's proposed EO to his call to halt immigration.

Again, I do not know the full parameters of the president's EO, but I expect it will at least limit the entry of temporary workers in industries that have, or are facing in the coming weeks, high levels of unemployment, and could well exclude guestworkers in defined "non-essential" jobs that are directly tied to the government's efforts to confront the Wuhan coronavirus.

It is possible that similar restrictions could also be placed, at least on a temporary basis, on foreign nationals seeking entry on immigrant (permanent) employment-based visas as well. With respect to most employment-based visas (temporary or permanent), prospective employers must obtain a labor certification from the Department of Labor "demonstrat[ing] that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for that occupation in the area of intended employment."

There is a lag time in the certification process, and in the final certification and the foreign national actually obtaining the visa, meaning that many employers have applied for certifications, or aliens are seeking visas, based on a U.S. (or local) job picture months in the past — a snapshot that does not reflect the current availability of American workers in the United States today. I would note that the State Department (which issues visas abroad) suspended most routine visa services on March 20, meaning that there are a number of pending visas that have not been issued in the past month.

Finally, it is possible that the president could suspend all visa issuances, employment- and family-based, until the Wuhan coronavirus emergency has passed. The grounds for legal challenge of such an action would grow as the administration's actions move from temporary workers to immediate relatives of citizens and lawful permanent residents.

That said, the president would still likely be on firm ground to take such actions given the broad grants of authority Congress has given him to restrict the introduction of persons under 42 U.S.C. § 265 on health grounds, and to suspend the entry "of any class of aliens" he deems "detrimental to the interests of the United States" under section 212(f) of the Immigration and Nationality Act (INA). The Supreme Court has, in particular, held that the latter provision "exudes deference to the president in every clause", and it would be especially relevant given the current employment picture in the United States.

Again, all of this is speculative until the president actually issues the EO in question, and until I can assess its full parameters. That said, strong medicine is needed to aid an ailing economy. If governors of states can put their own residents first in responding to the Wuhan coronavirus, so can the president of the union as a whole.