A U.S. district judge recently ruled in NAM v. DHS against aspects of President Trump’s Proclamation issued in June that blocked visa issuance to many foreign workers attempting to come to the United States. At issue are visas for intracompany transferees (L-1A and L-1B), skilled workers in specialty occupations (H-1B), seasonal nonagricultural laborers responding to proven domestic labor shortages (H-2B), and certain exchange visitors in work-study programs (J). The Proclamation prevents the Departments of State and Homeland Security from “engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance.”
The plaintiffs include Intrax, Inc. (a leading operator of cultural exchange programs), the National Association of Manufacturers (NAM), the U.S. Chamber of Commerce, the National Retail Federation, and TechNet. Collectively, the plaintiffs’ members include hundreds of thousands of U.S. businesses of all sizes and a variety of economic sectors.
It is perhaps a sign of the times that the court felt compelled to rule in favor of “constraint on Presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.” The court noted that since this case revolved around a purely domestic economic issue, it rejected the government’s position that a Presidential Proclamation on immigration must be deferred to as an aspect of its foreign affairs powers.
The court granted the plaintiffs’ request for a preliminary injunction pending trial in this action or further order of the court. The scope of relief at present applies only to the named plaintiffs and their members, although the decision potentially could ultimately have a larger effect.
In the meantime, some practitioners advise employers to consider joining NAM or the U.S. Chamber of Commerce if they are not already members, to enable them to be eligible for relief under the injunction. An appeal is expected.
Contact your WR attorney for advice in specific situations.
- NAM v. DHS, order granting plaintiffs’ motion for a preliminary injunction (Oct 1, 2020), https://www.courtlistener.com/recap/gov.uscourts.cand.362746/gov.uscourts.cand.362746.87.0.pdf
- “Judge Blocks Trump’s Ban on Foreign Workers,” New York Times, https://www.nytimes.com/2020/10/01/us/foreign-workers-visas-h-1b-trump.html
- “Judge Rules Against Trump’s H-1B Visa Ban: President Is Not a Monarch,” Forbes, https://www.forbes.com/sites/stuartanderson/2020/10/02/judge-rules-against-trumps-h-1b-visa-ban-president-is-not-a-monarch/#5c6bc32851cc
- “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” Presidential Proclamation 10052, https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/; Amendment, https://www.whitehouse.gov/presidential-actions/proclamation-amendment-proclamation-10052/
- “President Donald J. Trump Is Honoring His Commitment to Protect American Workers by Temporarily Pausing Immigration,” White House Fact Sheet, https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-honoring-commitment-protect-american-workers-temporarily-pausing-immigration/