Federal Court Bars Government from Enforcing Presidential Proclamation’s Suspension of Nonimmigrant Visas Against Thousands of U.S. Businesses

Burr & Forman

Burr & Forman

Earlier this year, President Trump issued a Presidential Proclamation restricting foreign nationals from entering the United States on certain temporary work visas through at least December 31, 2020 (“the Proclamation”).  On October 1, 2020, a California District Court issued an order barring the government from enforcing the visa ban, but only against several large corporate associations and their members.  The associations include the National Association of Manufacturers, the Chamber of Commerce of the United States of America, Technet, Intrax, Inc., and the National Retail Federation.  While the order is not a general nation-wide injunction, it effectively exempts hundreds of thousands of American businesses across a broad range of economic sectors while future litigation on the Proclamation continues.

The Court’s Order

The Proclamation was originally implemented by the Trump administration as a measure aimed at protecting U.S. workers from job competition during the economic recovery related to the COVID-19 pandemic. The Court found an injunction was proper, in part, because the Proclamation unlawfully eviscerates portions of the Immigration and Nationality Act.  The Court also noted the President exceeded his Constitutional authority by limiting the entry of foreign nationals based on a purely domestic consideration—the foreign national’s effect on unemployment.  The order is likely to be appealed, which may affect how long the injunction remains in place.

What is Next?

While the injunction is in place, individuals sponsored for a visa in the affected categories by the associations acting as plaintiffs in the case, including their member organizations, can obtain the otherwise restricted visas.  The affected visa categories include H-1B and L-1 visas, among others.  It remains to be seen whether the government might stop enforcement of the Proclamation while the injunction is in place due to the practical difficulties of enforcing it with so many entities protected by the order.  Businesses affected by the Court’s order should be prepared to demonstrate their membership in the affected association in order to take advantage of the decision.

Continued Difficulties

Even after removing the Proclamation as an impediment, employers may still face challenges in sponsoring new employees for nonimmigrant visas.  For example, foreign nationals are required to interview at a U.S. Embassy or Consulate abroad in order to obtain a visa.  Many Embassies and Consulates closed for months during the spring and summer of 2020 due to COVID-19.  As a result, foreign nationals are experiencing significant delays in scheduling appointments.  Additionally, travel restrictions due to COVID-19 remain in effect for many countries.  Currently, foreign nationals present in China, Iran, the European Schengen Region, the United Kingdom, Ireland, and Brazil for the fourteen-day period prior to attempting entry to the United States will be denied entry unless they qualify for a National Interest Exception or some other exemption.

The immigration landscape has continued to change throughout 2020.  With the upcoming Presidential election in November, more changes should be expected.  The Burr & Forman immigration team will continue to monitor developments and provide updates.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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