Federal Judge Grants Preliminary Injunction in Case Challenging Nonimmigrant Visa Ban

The US District Court for the Northern District of California has issued an order temporarily enjoining President Trump’s proclamation suspending the entry of certain temporary workers.  On June 22, 2020, President Trump signed Proclamation 10052, Section 2 of which suspended the entry of foreign nationals seeking admission in four visa categories of substantial importance to US companies—H-1B, L-1, H-2B, and certain J-1 visas—for the remainder of the calendar year and laid the groundwork for regulatory changes to transform when and how employers can sponsor foreign workers to work in the United States. For a full discussion of the Proclamation, please see our blog post, Trump Order Suspends Major Visa Categories, Including H-1B and L-1, Through the End of the Calendar Year, With Rulemaking Restrictions to Follow. The ban only applied to individuals in these categories who were outside the United States when the Proclamation took effect; were not in possession of a nonimmigrant visa on that date; and had no other authorization to travel to the United States, such as a transportation letter, an appropriate boarding foil, or an advance parole authorization.

Proclamation Challenged

On July 21, 2020, Plaintiffs, including Intrax, a leading operator of cultural exchange (“J-1”) programs and four trade organizations, including the National Association of Manufacturers (“NAM”), the US Chamber of Commerce (the “Chamber”), the National Retail Federation and TechNet, on behalf of their respective members, brought an action in the Northern District of California challenging the authority of the executive branch to issue Proclamation 10052 and alleging that the implementation of the proclamation by various departments violated the Administrative Procedures Act (“APA”).  The court heard oral arguments on Plaintiffs’ motion for preliminary injunction on September 11, 2020, and Judge Jeffrey White, finding insufficient support in the record for defendants’ position that the prospective nonimmigrants would take the jobs of US workers in the aftermath of the COVID-19 pandemic, issued  the preliminary injunction on October 1, 2020.

Plaintiffs, on the other hand, submitted what Judge White described as a “plethora of evidence of injury,” including “evidence that their businesses have and will likely continue to suffer harm as a result of the limitation on their ability to hire and retain qualified individuals from abroad. These injuries have or will result in the disruption of business operations, interference with existing employees, the closing of open positions, the furlough or laying off of employees, substantial pay cuts, threatened loss of prospective customers, shutting down of entire programs, inability to make capital investments, and the likelihood that some businesses or cultural programs will have to cease operations altogether.”

Defendants argued that there are exceptions to the nonimmigrant visa restrictions that may benefit some plaintiffs whose admission would serve the “national interest.” The court found that applying for a national interest exemption under the recently issued State Department guidance is expensive and would likely fail to relieve the irreparable injury for all but a few applicants.  Finally, the Court found Defendants’ claim that “a policy does not cause harm because there are exceptions to the policy” is “a logical fallacy.”

Scope of the Relief

The court made a point of describing the injunctive relief it was ordering as being narrowly tailored to relieve the harm suffered by Plaintiffs:

Plaintiffs seek to enjoin application of the Proclamation against their members. Plaintiffs do not seek, and the Court does not grant, a ‘nationwide’ injunction of the Proclamation. See Hawaii III, 138 S. Ct. at 2424-25 & n.1 (noting that ‘nationwide’ injunction is a misnomer and explaining that there is no issue where plaintiffs only seek an injunction for themselves) (Thomas, J., concurring).

While the court has noted that the injunction applies only to the organizational plaintiffs and their respective members, the organizational plaintiffs in this case represent hundreds of thousands of American businesses of all sizes and economic status.

Conclusion

In light of the fact that most US consulates continue to operate at reduced capacity due to COVID-19 concerns and the fact that geographically-based policies continue to restrict arrivals from certain countries, e.g., the Schengen Area, the practical effect of Thursday’s preliminary injunction on the number of nonimmigrant visas issued may take some time to manifest itself.

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