In early January 2020, the first identified cases of COVID-19 caused by the novel coronavirus were reported in Wuhan, China. On January 30, 2020, the first reported case of person-to-person transmission of COVID-19 was confirmed in the U.S. Instead of treating COVID-19 as a humanitarian and scientific problem to be addressed on behalf of the people of the United States, Trump and his allies politicized their response from the beginning, and used COVID-19 to go after their perceived enemies: China, Iran, and, mostly, immigrants.
The dysfunctional response and lack of leadership has led to the known deaths of more than 130,000 U.S. citizens and residents, and probably far more. The numbers are significantly undercounted because some states like Florida refuse to report people who have died of COVID-19 if they are undocumented or not residents of the state. (In fact, the Florida governor fired the state statistician when she complained they were politically manipulating the data). Other states such as Nebraska refuse to require companies to report people with COVID-19, including immigrants, who work in meatpacking and other factories, saying it is a “business decision.” These responses, as frightening as they are, pale in comparison to the use of COVID-19 to rewrite the immigration laws of the United States consistent with the administration’s long-held agenda to essentially end immigration to the country.
Trump’s use of Presidential Proclamations and Executive Orders, even before COVID-19, demonstrated how immigration laws can be radically altered without congressional consent. For the first time since INA §212(f) was enacted, Executive Orders were issued to ban all citizens of certain countries. In contrast to the targeted approach of past Executive Orders, the Orders issued in 2017–18 banned 150 million Muslims from the U.S. and all citizens of at least seven countries. The Supreme Court upheld this unprecedented use of presidential power in Trump v. Hawaii, 138 S.Ct. 2392 (2018). Although always pictured as “short term,” these bans have remained in effect for years.
Having the taste of success from the slim majority of the Supreme Court who believe in the “unitary-Executive” (a Dick Cheney doctrine to allow the President to exercise kingly powers), Trump then issued his Health Insurance ban. By Presidential Proclamation an immigrant (with certain exceptions) is barred from entry unless “covered by approved health insurance” within 30 days of entry or “possesses the financial resources to pay for reasonably foreseeable medical costs.” A nationwide preliminary injunction, however, was issued enjoining the Proclamation’s effect. and the 9th Circuit denied a stay of the order.
But then came the novel coronavirus and Trump, Miller, and their restrictionist friends saw an opportunity. They could now ban their perceived enemies (China, Iran, and even European Union countries–but noticeably not Russia despite it having one of the highest COVID-19 infection rates in the world) and could transform immigration through Presidential Proclamations. This year, Trump has issued one travel ban after another targeting China, Iran, the Schengen Countries, UK/Ireland, Brazil and most recently Chinese graduate students who are working in perceived sensitive military applied areas. The major ban came on Apr. 22, 2020.
On that day Trump issued the proclamation banning immigration into the United States except for the most restrictive categories possible under the guise of protecting “us” from the virus and protecting hard-working Americans facing unemployment. He essentially shut down immigration into the United States. The Proclamation suspends and limits the entry of all immigrants seeking to enter the United States if: (1) they are outside the United States on Apr. 23, 2020; (2) they do not have an immigrant visa valid on Apr. 23, 2020; and (3) they do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on Apr. 23, 2020 or is issued thereafter permitting travel to the U.S. In essence, it bans everyone except the spouses and children of USCs, EB-5, and special immigrants from Iraq and Afghanistan. This is in keeping with Miller and Trump’s often stated goal of ending family migration (they call it “chain migration”) and ending all employment categories by replacing them with a point system. Although the ban was “only” for 60 days, Trump signaled that it would be expanded to nonimmigrant visas. And expanded it was. On June 22, 2020 Trump issued Proclamation 10052, Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak (June 22, 2020), 85 FR 38263-67 (Jun. 25, 2020). Proclamation 10054, Amendment to Proclamation 10052 (June 29, 2020), 85 FR 40085 (July 2, 2020).
This ban extended the earlier immigrant ban until Dec. 31, 2020 and now included a nonimmigrant ban. Trump banned the following NIV categories with limited exceptions: (a) H-1B and H-2B, and any persons accompanying or following to join such H-1Bs or H-2Bs; (b) Js participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any person accompanying or follow to join such J entrant; and (c) L visa and any person accompanying or following to join such L
There is no doubt in my mind that this ban will remain in effect for the entirety of Trump’s tenure in office unless the courts intervene, or he forces Congress to eliminate family- and employment-based quotas and replace them with a point system. Of course, this will ultimately turn on the Supreme Court, but it is highly unlikely that the “unitary-Executive” slim majority of the Court would do anything but rubber-stamp Trump’s broad use of Executive power.
But the June 22, 2020 ban also foreshadowed other horrible practices and regulations that this administration is rushing to complete before Jan. 20, 2020. The proclamation asks DHS to take action that would ban most employment authorization of nonimmigrants and others in the United States and engage in other “additional measures” that include: (a) directing HHS and CDC (“shall”) to provide guidance to DOS and DHS on implementing measures to reduce the risk of persons seeking entry of introducing, transmitting, or spreading the virus that causes COVID-19 (SARS-CoV-2); (b) directing to DOL and DHS (“shall”) to consider promulgating regulations to ensure that persons seeking admission under EB-2, EB-3 or H-1B do not disadvantage U.S. workers. DOL shall undertake investigations pursuant to INA §212(n)(2)(G)(i) [LCA and H-1b practice violations] and (c) directing that DHS shall: : (i) take action prohibiting eligibility for any immigration benefit unless the applicant has been registered with biographical and biometric information including photos, signatures and fingerprints; (ii) prohibit employment authorization to persons who (a) have final orders of removal; (b) who are inadmissible or deportable from the U.S.; (c) who have been arrested for, charged with, or convicted of a criminal offense; and (iii) promulgate regulations or other appropriate action regarding the allocation of visas pursuant to INA §214(g)(3) ensuring that H-1Bs do not disadvantage U.S. workers.
While Covid-19 was tearing through the U.S. Trump also issued a Presidential Memorandum on Visa Sanctions (Apr. 10, 2020), that is designed to force other countries to take back their citizens even if they caught COVID-19 courtesy of ICE detention centers. Numerous newspaper reports have noted that Trump has sent people back to Haiti and other countries knowing they had active cases of COVID-19. And finally, using COVID-19 as cover, all embassies and consulates around the world have been closed for over two months without any determination of the individualized conditions in those countries that may warrant some or full work on adjudicating visas. Instead they are only open for “emergency” services which are defined as services to USCs who have problems abroad.
In the coming days, I will also discuss the use of COVID-19 to shut the borders, end employment authorization, and kick out foreign students from the U.S. all at a loss of billions of dollars to the economy while Trump claims he is doing it for the benefit of the economy.
So yes, the administration is using a global pandemic to implement policies it has long-sought. It is doing so to the detriment of our economy, at the cost of family separation, and an undermining of the American Dream and foundational values. We need to resist and we need to vote.
Hear more from Ira and his analysis of late-breaking immigration issues at the Hot Topics Part II panel from AILA’s Annual Conference. He’ll also be featured in two upcoming AILA University roundtables!