Published on April 24, 2020 | By Michael A. Harris

In the time since COVID-19 global pandemic has hit the United States over the last month, the U.S. economy has shut down. Part of that shutdown has led to the closure of field offices of U.S. Citizenship and Immigration Services (USCIS), as well as nearly all U.S. Embassies and Consulates around the world. Stuck overseas are many foreign nationals who have not already been granted immigrant or nonimmigrant visas around the world.

With no end in sight as the virus ravages the U.S., uncertainty abounds as foreign direct investment in the U.S. has also seemingly dried up. Given historical and statistical proof of the beneficial impact of immigration into the United States, many immigrants outside of the country have hopes of helping the U.S. fight the pandemic, either through contributing their medical and health expertise, or by offering innovative business solutions to struggling American businesses.

This week, politics have added more worry to an already struggling business immigration industry.  On April 22, 2020, the Trump Administration formally published an executive order entitled, “Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

Who does the travel ban apply to?

The proclamation was published after President Trump’s surprising Twitter post after 10:00 PM EST on Monday, April 20, 2020.  The keyword in his tweet was that President Trump would “suspend immigration into the United States”. This gave an indication that the new travel ban would only apply to persons who are outside the United States. Discussions in the press and from Trump or Trump Administration officials also indicated that the travel ban would only apply to foreign nationals seeking “entry” into the country. But the biggest question was WHO would the travel ban apply to?

In previous travel bans issued by President Trump, the legal reason given for the ban was Section 212(h) of the Immigration and Nationality Act.  This section of law was the primary point of consideration by the U.S. Supreme Court in its upholding of the travel ban. The law says:

“(f) Suspension of entry or imposition of restrictions by President. Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.” (Emphasis added.)

Exemptions from the travel ban — including EB-5 petitioners

Would President Trump ban all immigrants and nonimmigrants already in possession or not yet granted visas from entering the United States? The proclamation published on April 22, 2020, provided some reassuring comfort to some, but not all foreign nationals.

The proclamation will bar the issuance of new immigrant visas to persons not in possession of a stamp or other travel document after the effective date of the order.  But, importantly, the proclamation will not apply to:

1. Any lawful permanent resident of the United States;

2. Any person seeking to enter the United States on an immigrant visa as a physician, nurse, or other healthcare professional; to perform medical research or other research intended to combat the spread of COVID-19; or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak; and any spouse and unmarried children under 21 years old of any such person;

3. Any person applying for a visa to enter the United States pursuant to the EB-5 Immigrant Investor Program;

4. Spouses and children under 21 years of age of United States citizens;

5. Anyone whose entry would further important United States law enforcement objectives;

6. Any member of the United States Armed Forces and any spouse and children of a member of the United States Armed Forces;

7. Any person seeking to enter the United States pursuant to a Special Immigrant Visa; or

8.Any person whose entry would be in the national interest.

What this could mean for EB-5

From a business perspective, which could have a substantial impact on the U.S. economy, it is a pivotal moment that the proclamation does not bar foreign nationals seeking to invest in the EB-5 program.

It is not clear if the “national interest” standards to be applied by the government would be similar or akin to the National interest Waiver requirements, which could have a broad application to a variety of professionals who may prospectively benefit the U.S. economy, such as the restaurant industry, hotel industry, and other industries drastically hurt by the global pandemic.

It is further interesting that the proclamation exempts EB-5 applicants, which could greatly provide billions of dollars of FDI each year to the United States. The EB-5 Program has also created tens of thousands of jobs each year for U.S. workers, with lasting effects, for over 10 years.  Calls for Congress or the President to lower the investment threshold back to $500,000 may help further stimulate the U.S. economy.

Looking ahead

In conclusion, more will certainly be coming in the weeks ahead. The proclamation states that within 30 days it may add to the ban or recommend other enhancements to help stimulate the U.S. economy through temporary nonimmigrant visas. It would be prudent for President Trump to consider a limited scope parole program, similar to President Obama’s entrepreneurial parole program, to allow certain foreign nationals to be granted admission to the U.S.

My recommendation would be to use such a parole for persons who invest in EB-5, thereby allowing them to await approval of their petition and offering a much desired economic stimulus to suffering U.S. businesses.