The Biden administration has revoked Presidential Proclamation 10014 of April 22, 2020 -Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak (PP 10014).
PP 10014 was intended to stop the issuance of immigrant visas at embassies and consulates abroad in order to protect the U.S. labor market; however, it contained many notable exemptions. Exempt from PP 10014’s restrictions included immigrants with valid visas, those seeking to enter the United States in certain medical professions, EB-5 visa holders, immediate relatives of U.S. citizens, members of the U.S. armed forces and their immediate relatives, and those whose entry was deemed to be in the national interest, among others.
It is not clear whether PP 10014 has actually protected the U.S. labor market, given that by law the majority of employment-based immigrants must satisfy a labor market test or have shown such a test is unwarranted (i.e., extraordinary ability, national interest waivers or multinational managers). As the Biden administration noted in its presidential proclamation, PP 10014 appeared mostly to harm the United States by preventing certain family members of U.S. citizens and lawful permanent residents from entering the country. In that manner, PP 10014 served to function as a ban on family-based immigration and diversity visas. The U.S. immigration system was constructed by Congress to favor family-based immigration, and PP 10014 overturned that careful construction, leading some to believe that the Trump administration was using the pandemic as a pretext to push through an anti-immigrant agenda. Diversity visa winners were forced to sue in federal court for the right to utilize their lawfully obtained benefit to immigrate and have recently seen their visa expiration dates extended at the U.S. district court level.
While this will be a welcome step by many, it may not satisfy immigration advocates’ expectations of a full rollback of the Trump administration’s pandemic-related immigration restrictions. The Biden administration has not revoked Presidential Proclamation 10052 of June 22, 2020 – Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak (PP 10052), which has restricted the issuance of H-1B, H-2B, J and L visas from abroad. PP 10052 has also been subject to litigation and was enjoined at the U.S. district court level; however, that ruling was restricted to the plaintiff organizations and their members. This effectively limited the injunction to members of the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet, and Intrax, Inc.
In addition to PP 10052, the Biden administration has also continued the Trump administration’s suspension of the entry of certain travelers who spent any part of the 14-days prior to entry in the Schengen Area, United Kingdom, Republic of Ireland and Brazil. These restrictions overlap with the CDC requirement that all travelers to the U.S. obtain a viral test within three days of flight departure, leading some to find that the suspension of entry should be reconsidered.
Lastly, the final challenge to restoring the U.S. immigration system will be the restoration of routine visa services at embassies and consulates worldwide. Since the pandemic began, many embassies and consulates have completely shut down or severely restricted visa processing, both for immigrant and nonimmigrant visas. While these restrictions are largely pandemic-related and are in place with good reason, they have the effect of stymieing lawful immigration, as most foreigners who require a visa to enter the United States cannot obtain one, and therefore, cannot enter the country. This shadow ban on immigration affects all applicants, including family-based and employment-based immigrant and nonimmigrant visa holders. It is also the most inconsistent, as visa applicants are at the mercy of the operations of the consulate or embassy with jurisdiction over their foreign country of residence. Some embassies, like London, have severely restricted visa processing, while others, like Panama, are processing certain immigrant and nonimmigrant categories. In another example, the Amsterdam Embassy recently switched to only providing emergency nonimmigrant visa services despite the in-country case average hovering near its rate from October, a time when the embassy had expanded services. Visa applicants generally cannot shop around, as most embassies and consulates restrict processing at their location to residents of the jurisdiction they cover and, if they could apply at a different embassy or consulate, would have to pay a new visa fee.
While it is generally believed that the Biden administration will ultimately also revoke PP 10052 and resume routine consular operations worldwide (with appropriate pandemic-related measures), those actions cannot come soon enough for immigrants caught in limbo, many of whom are separated from loved ones or unable to start work.