Will Trump’s immigration proclamation ensure Americans get their jobs back after the pandemic?

President Donald Trump said he would suspend immigration during the COVID-19 pandemic, but his immigration proclamation just establishes a 60-day suspension on the entry of certain “immigrants” who would present a risk to the U.S. labor market during the economic recovery following the pandemic. The suspension can be extended when the 60-day period ends. 

The term, “immigrant,” is defined by section 101(a)(15) of the Immigration and Nationality Act (INA) to mean an alien who is not a nonimmigrant — in other words, an alien who wants to enter the U.S. is considered an “immigrant” unless he can establish that he is entitled to one of the nonimmigrant visitor classifications.

This means that the proclamation only protects American workers from competition with aliens who are coming here to stay permanently. It doesn’t protect them from competition with temporary workers who may stay a long time but will not be allowed to remain here permanently.

This is a very significant omission. In fiscal 2018, State Department consular officers issued 924,000 visas to temporary alien workers.

But the proclamation is not a finished product. 

Trump included a provision which requires administration officials to review the nonimmigrant programs and recommend whether additional measures are needed to ensure the prioritization, hiring, and employment of American workers.

There is no way of knowing which nonimmigrant workers will be included in the suspension when the review is finished, or how long the suspension will actually last.

Rationale

Trump is worried about the impact foreign workers can have on the U.S. labor market, particularly in the current environment of high unemployment. In the days between his declaration of a national COVID-19 emergency on March 13 and April 11, more than 22 million Americans filed for unemployment compensation.

His concern is that these out-of-work Americans will be replaced by foreign workers.

New aliens with Lawful Permanent Resident status are a particular threat in the job market.  There is no way to protect American workers from competition with these immigrants for scarce jobs. LPRs can’t be directed to particular economic sectors that have a labor shortage.  Their status does not have any job restrictions. They can do any kind of work they want to do.

Trump has determined, therefore, that the entry during the next 60 days of certain immigrants who are coming here to be LPRs would be detrimental to the interests of the United States.

The suspension (and exceptions)

Section 2, paragraph (a) of the proclamation applies the 60-day suspension to immigrants who are outside the U.S. on the effective date of the proclamation, do not have a valid immigrant visa and do not have an official travel document other than a visa that is valid on the effective date.

Paragraph (b) provides nine exceptions. The suspension does not apply to:

1. Immigrants who already have LPR status;
2. Immigrants seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to perform 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 their spouses and children;
3. Immigrants applying for a visa to enter the U.S. in the EB-5 Immigrant Investor Visa Program; 
4. Spouses of U.S. citizens;
5. Children of U.S. citizens and prospective adoptees seeking to enter on an Intercountry Orphan Adoption visa;
6. Immigrants who would further important U.S. law enforcement objectives;
7. Members of the U.S. Armed Forces and their spouses and children;
8. Immigrants and their spouses or children who are eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or as a U.S. Government Employee; and
9. Immigrants whose entry would be in the national interest.

Section 4 states that the proclamation shall expire in 60 days but provides that it may be extended and modified.

Section 6 requires a review of nonimmigrant programs within 30 days and a recommendation on whether nonimmigrants should be included in the suspension to ensure the prioritization, hiring, and employment of American workers.

Does the suspension exceed Trump’s authority as president?

Reps. Jerrold Nadler (D-N.Y.) and Zoe Lofgren (D-Calif.) claim that Trump’s proclamation is “an illegal and shocking usurpation of power. Under our Constitution, congress writes the laws, and the president must enforce them as written.”

The fact is Congress wrote the INA provisions that Trump cites as authority for issuing the proclamation: Section 215(a), which makes it unlawful “for any alien to depart from or enter … the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe;” and Section 212(f), which gives the president authority to suspend the entry of aliens.

The president’s authority under section 212(f) to suspend alien entries was found to be virtually unlimited in a recent Supreme Court decision.

In Trump v. Hawaii, the Supreme Court held that section 212(f) “entrusts to the president the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions.” The sole prerequisite to exercising this authority is that the president find that the entry of the covered aliens would be detrimental to the interests of the United States.

The Court observed further that if congress had intended to constrain the president’s power to determine who may enter the country pursuant to this authority, it could have chosen language directed to that end.

This means that Trump did not exceed his authority; in fact, he can expand the proclamation to include other aliens — and he can continue it indefinitely if he thinks permitting the entry of the excluded aliens would be detrimental to the interests of the United States.

In fact, Stephen Miller, one of Trump’s senior policy advisers, has said that the proclamation will usher in the broad, long-term immigration-policy changes he has long been advocating.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.