October 5, 2020 Newsletter Powered By ABIL

Federal Judge Issues Preliminary Injunction Against Trump Block on H, L, J Foreign Workers
On October 1, 2020, a U.S. district judge ruled in NAM v. DHS against aspects of President Trump’s June 22, 2020, proclamation that effectively blocked visa issuance to many foreign workers.
More specifically, the proclamation prevented visa issuance to 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 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.
Among other things, the court rejected the government’s position that the Presidential Proclamation implicated the President’s foreign affairs powers simply because it affects immigration. The court noted that this Proclamation deals with a purely domestic economic issue – the loss of employment during a national pandemic – and that in domestic economic matters, the national security and foreign affairs justifications for policy implementations disappear, and normal policy-making channels are the default, which includes the traditional pathway of public rulemaking. Indeed, the court said, “there must be some measure 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 also noted that the Proclamation at issue nullified significant portions of the Immigration and Nationality Act (INA) by declaring invalid statutorily established visa categories in their entirety for the remainder of this calendar year and indefinitely beyond that deadline. “Until, at a minimum, the end of the year, the Proclamation simply eliminates H-1B, H-2B, L-1, and J-1 visas and nullifies the statutes creating those visa categories,” the court noted, “and rewrites the carefully delineated balance between protecting American workers and the need of American businesses to staff their operations with skilled, specialized, and temporary workers.” The court said that the work visa provisions of the INA set out a “finely reticulated statutory scheme” that “reflects a set of legislative judgments that the entry of international workers is in the national interest provided they enter the market under the specific terms and conditions provided by the statute.” The court found that the President’s “wholesale elimination of categories of workers does not supplement this legislative judgment but rather explicitly supplants it by refusing admission to all categories of foreign workers.”
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 applies only to the named plaintiffs and their members. Some practitioners advise employers to consider joining NAM or the U.S. Chamber of Commerce to gain relief under the injunction. The government is expected to appeal.
Details: 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, https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/
USCIS Issues Guidance on Fee Rule Following Litigation
On September 29, 2020, a U.S. district court preliminarily enjoined the Department of Homeland Security from implementing or enforcing any part of U.S. Citizenship and Immigration Services’ (USCIS) rule on its fee schedule and changes to certain other immigration benefit request requirements.
USCIS said that while the rule is preliminarily enjoined, the agency will continue to:
  • Accept USCIS forms with the current editions and current fees; and
  • Use the current regulations and guidance to adjudicate applications and petitions. This includes accepting and adjudicating fee waiver requests as provided under Adjudicator’s Field Manual chapters 10.9 and 10.10.
DHS Proposes Rule to Amend Affidavit of Support Regulations
The Department of Homeland Security (DHS) proposes to amend its regulations governing affidavit of support requirements.
Certain immigrants must submit an Affidavit of Support executed by a sponsor who agrees to provide financial support to the sponsored immigrant and accepts liability for reimbursing the costs of any means-tested public benefits a sponsored immigrant receives while the affidavit is in effect. In its October 2, 2020, notice of proposed rulemaking, DHS proposes to clarify how a sponsor demonstrates the means to maintain income, such as revising the documentation that sponsors and household members must submit. DHS also proposes to modify when an applicant is required to submit an affidavit from a joint sponsor, who may be a household member for purposes of executing a Contract Between Sponsor and Household Member, and who is considered as part of a sponsor’s household size. DHS also proposes to update reporting and information-sharing requirements between authorized parties and U.S. Citizenship and Immigration Services.
Written comments on the proposed rule and related information collection should be submitted by the deadlines and using the methods specified in the notice.
Details: DHS notice of proposed rulemaking, 85 Fed. Reg. 62432 (Oct. 2, 2020), https://bit.ly/2EVJKhY
State Dept. Issues Guidance on National Interest Exceptions for Travelers from the Schengen Area, United Kingdom, and Ireland
The Department of State (DOS) recently released updated guidance on national interest exceptions for travelers from the Schengen Area, United Kingdom (UK), and Ireland. Certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under related Presidential Proclamations. Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) authorization may travel to the United States following the procedures below:
  • Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. Those applicants who are found to be otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.
  • Business travelers, investors, academics, J-1 students, journalists, and treaty traders who have a valid visa in the appropriate class, an ESTA authorization that was issued before Presidential Proclamations’ 9993 or 9996 effective dates, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception, should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.
DOS said it also continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.
A U.S. district court judge ruled on September 30, 2020, that the Department of State intentionally misinterpreted the Trump administration’s entry ban by not issuing diversity visas. The court reserved 9,095 DV-2020 visas for issuance after the final order in the case, which extends the FY 2020 deadline well into FY 2021. The court also granted class status to all non-plaintiffs whose visas had not been issued when Presidential Proclamation 10014, later extended by Presidential Proclamation 10052, took effect.
State Dept. Releases Instructions for DV-2022 Visa Lottery Program
The Department of State (DOS) released instructions on the diversity visa (DV) program for fiscal year 2022, under which up to 55,000 immigrant visas will be available. Applicants must submit entries for the DV-2022 program electronically at https://dvprogram.state.gov/ between noon ET, October 7, 2020, and noon ET, November 10, 2020. DOS recommends entering earlier in the registration period due to likely heavy demand and consequent website delays toward the end of the period. Submission of more than one entry will result in ineligibility.
There is no cost to register for the program. Applicants must meet “simple but strict” eligibility requirements. DOS determines selectees through a randomized computer drawing and distributes diversity visas among six geographic regions. No single country may receive more than 7 percent of the available diversity visas in any one year.
For DV-2022, persons born in the following countries are not eligible to apply: Bangladesh, Brazil, Canada, China (including Hong Kong SAR), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
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