On Thursday, October 1, 2020, a U.S. District Judge ruled that

President Trump exceeded his authority when he issued his

Proclamation 10052 on June 22, 2020. The proclamation suspended

entry of certain foreign nationals who hold nonimmigrant visas

issued on or after June 24, 2020 in the H-1B, H-2B, J, or L

categories. The proclamation also extended the expiration date of

an earlier proclamation, issued on April 22, 2020 that suspended

entry into the U.S. of certain foreign nationals who held immigrant

visas issued on or after April 24, 2020.

In July, the U.S. Chamber of Commerce members of the National

Association of Manufacturers and the National Retail Federation,

groups representing tech giants like Microsoft and Amazon filed a

suit in U.S. District Court (NAM v. DHS), claiming that

the President exceeded his authority by overruling immigration laws

passed by Congress. In his ruling on October 1, Judge Jeffrey S.

White of the U.S. District Court for the Northern District of

California agreed with the plaintiffs. The injunction takes effect

immediately and enjoins the Department of Homeland Security (DHS)

from implementing Proclamation 10052 with respect to the plaintiffs

and from engaging in any actions that results in the non-processing

or non-issuance of applications or petitions for visas in the H, J,

and L categories.

Judge White focused his ruling on three areas:

  1. Congressional Delegation of Authority in Domestic

    Affairs: Judge White argued that Congress has delegated

    authority to the President to suspend or restrict aliens in certain

    circumstances, but that this changes “where the authority

    exercised by the President is outside the suspension of entry of

    aliens based on foreign policy interests.”1 The judge concluded that the

    President's power is not limitless to suspend entry of aliens

    into the United States.

  1. The Proclamation Eviscerates Parts of the Immigration

    and Nationality Act: Judge White concluded the

    Presidential Proclamation nullifies significant portions of the

    Immigration and Nationality Act “by declaring invalid

    statutorily-established visa categories in their entirety for the

    remainder of this calendar year and indefinitely beyond that

    deadline.”2

  1. The Finding Is Insufficient: The judge cites

    the absence of any record that the President or any federal

    agencies at his instruction “conducted any evaluation

    regarding the effect on the domestic economy of banning

    work-related nonimmigrant visas at issue here.”3 In addition, Judge White noted a

    significant mismatch of facts regarding the unemployment caused by

    the proliferation of the pandemic and the classes of noncitizens

    who are barred by the Proclamation. Among the exhibits that the

    judge referenced was a June 2020 report from the National

    Foundation for American Policy (NFAP) that showed that the U.S.

    employment rate in computer occupations remained stable, and even

    declined in occupations that aligned with those of H-1B visa

    holders, from January through May of 2020.4 While the stated purpose of

    Presidential Proclamation 10052 is to aid U.S. workers, the judge

    found that the “the Proclamation completely disregards both

    economic reality and the preexisting statutory

    framework.”

Please note that the injunction applies only to the named

plaintiffs in NAM v. DHS and is not a nation-wide

injunction. Nevertheless, the judge's order affects thousands

of American businesses of all sizes from a cross-section of

sectors. In addition, the order is also at odds with an earlier

decision reached by a federal judge in Washington D.C., which

ensures that the ultimate determination will be made by an appeals

court.5 The injunction will remain

in effect pending trial.

Footnotes

1.

https://www.forbes.com/sites/stuartanderson/2020/10/02/judge-rules-against-trumps-h-1b-visa-ban-president-is-not-a-monarch/#6f9b688051cc

2.

https://www.forbes.com/sites/stuartanderson/2020/10/02/judge-rules-against-trumps-h-1b-visa-ban-president-is-not-a-monarch/#6f9b688051cc

3.

https://www.forbes.com/sites/stuartanderson/2020/10/02/judge-rules-against-trumps-h-1b-visa-ban-president-is-not-a-monarch/#6f9b688051cc

4. https://nfap.com/wp-content/uploads/2020/08/Updated-Analysis-of-Employment-Data-for-Computer-Occupations.NFAP-Policy-Brief.June-2020.pdf

5. https://www.nytimes.com/2020/10/01/us/foreign-workers-visas-h-1b-trump.html

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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