By Rooney Nimmo Associate, Abbey Docherty +1 212 545 8022 firstname.lastname@example.org
On October 1st, 2020, Federal District Judge Jeffrey S. White ruled, by way of an immediate preliminary injunction, that the federal government can no longer — in specific cases — enforce the provisions of Presidential Proclamation 10052 as it relates to suspending admission to the United States of individuals holding H, L, and J visa immigration status.
White’s actions came in the case of National Association of Manufacturers et al. v. Department of Homeland Security et al. and is limited in scope, applying only to the named plaintiffs in the case: the National Association of Manufacturers, the Chamber of Commerce of the United States, the National Retail Federation, Technet, and Intrax, Inc.
What this means
Signed by President Trump on June 22, 2020, and extending Proclamation 10014 of April 22nd, 2020, Proclamation 10052 suspended entry to the US of foreign nationals holding H-1B, H-2B, J, or L visas. This suspension remains in place through December 31st, 2020, with the option to extend “as necessary.” The Proclamation’s stated purpose was to “eliminate the threat of taking jobs from American citizens who may find themselves without employment during the extraordinary economic disruptions caused by the COVID-19 outbreak.”
In his ruling, Judge White ruled for the plaintiffs who argued that the ban was overbroad and was negatively impacting their businesses by creating “uncertainty for employers and their intra-company transferee employees, high-skilled workers, seasonal laborers, cultural exchange visitors, and dependents.”
While the US Supreme Court has previously found that the President has broad authority to prevent the entry of foreign nationals in cases where foreign policy is involved, he does not have the same powers in cases based solely on domestic economic policy. In this case, Judge White found that the suspension of entry of certain foreign nationals pursuant to Proclamation 1052 was unlawful as it was based on nothing more than domestic economic policy. Specifically, in “domestic economic matters, the national security and foreign affairs justification for policy implementations disappear, and the normal policy-making channels remain the default rules of the game.” As a result, White said, the President’s power to enforce Proclamation 10052 “is not unbridled.”
In issuing the injunction, Judge White further found that the plaintiffs established that they would likely succeed on the merits of the case by showing that they would suffer “irreparable harm” under the provisions of the proclamation.
The coalition of plaintiffs has since filed motions to clarify the preliminary injunction and compel compliance on the part of the Department of State, who plaintiffs argue has failed to comply with the Court’s injunction.
Limited in scope
While Judge White’s ruling appears to carry larger implications for businesses across the country, his preliminary injunction is limited by the fact that the plaintiffs did not seek a nationwide injunction in this case. As such, businesses and organizations which believe they too are being negatively impacted by Proclamation 10052, other than those listed as plaintiffs in the underlying lawsuit, cannot rely on Judge White’s ruling to find relief. However, the key plaintiffs are well-established membership organizations representing a large number of US employers, such as Microsoft and Amazon. While the preliminary injunction is limited to the plaintiffs and members of their respective organizations, companies who are not currently members of the plaintiff organizations may apply to join and, by becoming a member, may then be covered by the order.
“We believe that this case is just the starting point. We expect additional lawsuits to be filed in the near future, as many organizations, particularly those in technology and the sciences, require a broad range of talent to keep innovating within the US.”
Specific visa categories affected
In his ruling, Judge White granted relief to the named plaintiffs in the case to apply for entry into the United States for non-immigrant individuals holding the following types of visas:
- Category L – This visa allows multinational corporations to sponsor visas for temporary intra-company transfers to the United States. These visas are issued to non-citizens who have “been employed continuously for one year by a firm or corporation . . . and who seek to enter the United States temporarily in order to render [their] services to the same employer” and will perform a “managerial” or executive” function.
- Category H – These visas enable employers in the United States to hire qualified foreign professionals in “specialty occupation[s]” requiring “theoretical and practical application of a body of highly specialized knowledge” and a “bachelor’s or higher degree.”
Prior to hiring an H1-B nonimmigrant, an employer must first file a labor condition application with the Department of Labor and must identify the specialty occupation position and the specific location of employment. Employers must attest that the position will pay a prevailing wage, that the position will not adversely affect other workers, and that the company has provided certain forms of notice regarding the position.
- Category J – These visas allow approved applicants to participate in work-and study-based cultural exchange visitor programs. Regulations under this provision establish 15 categories of exchange program eligibility, including trainees, teachers, au pairs, and summer work and travel for foreign students.
If you have any questions or need help, please contact Abbey Docherty, or Elannie Damianos on +1 212 545 8022 or visit www.rooneynimmo.com for more information.
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