Court Blocks Executive Order Ordering the Suspension of Entry for NonImmigrants

On October 1st , a federal judge issued a preliminary injunction against the Trump administration’s June 2020 proclamation that suspended the entry of foreign nationals on four categories of work visas (H-1B, L-1, H-2B and most J-1 temporary visas). In issuing his ruling, U.S. District Judge Jeffrey S. White ruled the president does not possess the power of a monarch to cast aside immigration laws passed by Congress.           

The order prevents the State Department and Department of Homeland Security (DHS) 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.”

Issued on June 22, 2020 and known as Presidential Proclamation 10052 The president had said that his proclamation, initially effective until December 31st, would protect Americans from foreign competition for jobs amid soaring unemployment caused by the coronavirus pandemic. In his proclamation, he described the entry of additional workers under work visas as an “unusual threat to the employment of American workers.” The proclamation had also restricted the ability of American companies with global operations and international companies with U.S. branches to transfer foreign executives and other employees to the United States for extended assignments. In addition to this, the proclamation had blocked visas for the spouses of foreigners who are employed at companies in the United States.

In reaching his decision, Judge White said the proclamation did not address the problem it purported to tackle, namely to lift the economy by providing job opportunities for Americans. Specifically, he found that the government had failed to present any evidence that the foreign nationals whom the proclamation suspended from entry would have had a detrimental effect on the country’s economic recovery if permitted to enter the United States.

In issuing its decisions the court also concluded the following:

1. Plaintiffs suffered an injury caused by the Defendant and an injunction would remedy that injury.

2. The Administrative Procedure Act did not apply to the issuance of the Proclamation. Because of that Plaintiffs did not need to challenge a final agency action taken by the Defendant. It was sufficient for Plaintiffs to challenge the proclamation. 

3. The proclamation exceeded presidential authority in violation of the domestic affairs and Congressional Delegation of Power and in violation of the Immigration and Nationality Act. Congress, not the president, has the power to set immigration policy, and although Congress may delegate authority to the president to act with respect to immigration when foreign relations or national security are implicated, such delegated authority does not extend to issues involving domestic policy. Because the proclamation’s visa suspension “deals with a purely domestic economic issue – the loss of employment during a national pandemic,” the court held that it was outside the president’s realm of power to enact.

Scope:

The court’s preliminary injunction is limited in scope; it does not enjoin DHS from enforcing the visa suspension completely. Rather, the injunction temporarily bars DHS from enforcing the suspension against only the plaintiff organizations and their members, which include the National Association of Manufacturers, the Chamber of Commerce of the United States of America, the National Retail Federation, Technet, and Intrax, Inc.

Practically speaking, however, the impact of the preliminary injunction is quite broad. As the court notes in its order, the plaintiff organizations’ members “comprise hundreds of thousands of American businesses of all sizes and from a cross-section of economic sectors.” Nevertheless, foreign national employees of companies that are not members of any one of the plaintiff organizations remain subject to the proclamation’s visa suspension provision.

Aftermath:

The preliminary injunction remains in effect pending trial, unless overturned on appeal. DHS has yet to provide guidance on how it will direct consulates to comply with the court’s order. 

Please click here to read the decision.

If you have any more questions about this matter, please call Blaszkow Legal, PLLC.

Posted in Immigration Law

Recent Posts