July 7, 2020 3:02PM

Trump’s Migration Ban Could Affect Up To 545,500 If Consulates Reopen—Fewer Than 18,000 Otherwise

President Trump announced last month that he would ban nearly all immigrants and temporary workers for the remainder of 2020. There are still many unknowns about how this order will be implemented and how applicants will respond to it, but the White House estimated that the ban would block about 525,000 work authorized immigrants from working in the United States. It did not reveal its methodology for estimating this figure, but if consulates were open, and world migration returned to normal, it would likely ban more than that—about 545,000—but with consulates closed, other travel restrictions in place, and demand for visas generally low, it would probably affect fewer than 18,000, nearly all H-2B temporary workers.

Who does the proclamation ban?

President Trump’s proclamation bars the following categories of new visa applicants:

  • H-1B temporary high skilled workers;
  • H-2B temporary nonagricultural workers;
  • H-4 spouses and minor children of H‐​1Bs and H‐​2Bs;
  • L-1 high skilled intracompany transfers;
  • L-2 spouses and minor children of L‐​1s;
  • J-1 exchange visitors in various programs;
  • J-2 spouses and minor children of L‐​1s; and
  • All immigrants (i.e. those seeking legal permanent residence).

For temporary workers, their families, and all immigrants (i.e. those seeking permanent residence), it provides the following exemptions:

  • Those who have valid visas in the relevant classification at the time of the proclamation;
  • Those who are inside the United States at the time of the proclamation; and
  • Those who have documents other than a visa allowing them to travel to the United States.

For temporary workers and their families, it provides the following exemptions:

  • J‐​1s who are government visitors, international visitors, professors, research scholars, short‐​term scholars, specialists, and students of all types;
  • Anyone entering to do labor or services essential to the food supply; and
  • Anyone in the “national interest” determined by Department of Homeland Security or State including:
    • Critical to the defense, law enforcement, diplomacy, or U.S. national security;
    • Involved with medical care for to currently hospitalized COVID-19 patients;
    • Involved with COVID-19 medical research;
    • Are necessary to facilitate the economic recovery of the United States; and
    • Children who would age out of eligibility if they were banned.

For immigrants (i.e. those seeking legal permanent residence), it provides the following exemptions:

  • Spouses and minor children of U.S. citizens;
  • EB-5 investors;
  • Physicians, nurses, or other healthcare professionals;
  • Medical researchers or other researchers intended to combat the spread of COVID-19; and
  • Workers essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak;
  • Anyone who would further U.S. law enforcement;
  • Any member of the U.S. Armed Forces (and their spouses and children);
  • Any interpreters or employees of U.S. Armed Forces (and their spouses and children); and
  • Anyone in the “national interest” determined by the Department of Homeland Security or State including children who would age out of eligibility if they were subject to it.

There are important unknowns about these exemptions.

  1. Will immediate family of someone who is exempt also be exempted? In at least some cases, this appears not be happening.
  2. Will immediate family of someone who receives a national interest waiver also be deemed in the national interest? That’s how it has worked for other travel bans.
  3. Will the age out exemption only apply to child applicants whose parents already have visas or will the State Department process parents whose children may age out? This post assumes that they will not apply this provision to parents.
  4. Can someone who is inside the United States at the time of the order leave and obtain a visa abroad to reenter? This is unclear.
  5. Can someone who has a valid visa in the relevant category at the time of the proclamation obtain a new visa? Reading the proclamation, the answers to this question would appear to be yes, but the State Department has still refused visas and told applicants not to apply even in those cases.
  6. Will the food supply chain exemption apply to H‐​2Bs only (as was clearly envisioned by the administration) or will other categories be able to use it?
  7. Does an “official travel document other than a visa” permitting travel to the United States include a passport from a Visa Waiver Program country which allows citizens of those countries to fly to the United States without a visa? It should, but it doesn’t appear that embassies are interpreting it that way.

Given the long list of unanswered questions, it appears that individual consulates or consular officers will be deciding how to deal with these issues.

How many applicants will the order affect?

Table 1 shows the number of visa issuances that occurred in the affected categories from about June 24 to December 31, 2019, the number of estimated issuances who would have been exempt from the order, and the estimated number banned. If consulates had immediately reopened, other travel restrictions were lifted, and migration returned to 2019 levels, there would have been about 381,000 nonimmigrants banned as a result of the order and 164,000 immigrants—for a total of 545,500.

These numbers generally reflect the number of affected visa approvals in 2019, except for H-2B. The H-2B cap was higher by 30,000 in FY 2019 than in FY 2020, making it impossible that H-2B visa issuances could reach the FY 2019 levels. It is likely that the cap will also be lower in FY 2021. The 2019 H-2B issuances were reduced to account for the difference.

For H‐​1Bs, the number of exemptions reflects the number of medical professionals entering under H-1B visas based on the share of the year remaining in 2020. H-2B exemptions were based on the approximate share of workers in meat or seafood packing and processing or industries associated with transportation (about 10 percent). J-1 exemptions excluded all categories of J-1 visas not included in the order. L exemptions were based on the percentage decline in L-1 visas actually issued in May 2020 before the order was in effect compared to May 2019. Any L-1 visa issued in May would have had to justify emergency visa processing, and so they would presumably be able to justify a national interest waiver under the new regime as well. All H‐​4s, L‐​2s, and J‐​2s reflect the ratio of primaries to family in those categories.

Table 2 shows the estimated number of visa issuances that will occur in the affected categories in 2020, the number of estimated exemptions from the order, and the estimated number banned. The estimated number of visa issuances that will occur is based on percentage decline in visa issuances from May 2019 to May 2020 in each category. Projected exemptions are assumed to equal the number of projected issuances in each category except for H-2B. This makes sense because anyone who could justify emergency visa processing in May 2020 will be able to justify an exemption from the ban. The primary exemption is for medical personnel, which were already explicitly permitted to pursue emergency visa processing.

H-2B workers are a unique case in that the H-2A for temporary agricultural workers and H-2B temporary nonagricultural workers were specifically exempt from the suspension of visa processing. This means that H-2B workers are effectively the only category that was immediately limited by the presidential proclamation on June 24 (its effective date). Altogether, the order will likely stop about 17,500 H‐​2Bs, and almost no one else. Ultimately, without lifting the ban on routine visa services or the country‐​based entry bans, the ban will have little practical effect. But the State Department refuses to give any timeline or criteria for reopening, so it’s impossible to know how this order will play out in practice.