The Latest on Immigration Litigation

Klasko Immigration Law Partners, LLP
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The Trump Administration has taken numerous actions to stem the flow of immigrants to the U.S. What is not well known is that these efforts include measures of questionable legality that have the effect and likely the purpose of reducing or eliminating most categories of legal immigration. This will be the subject of an upcoming podcast.

In addition to litigation that our firm has undertaken on behalf of our clients, Ron Klasko is serving his third term as Chairman of the Litigation Task Force of the American Immigration Lawyers Association. Under Ron’s leadership, the Task Force and AILA’s Director of Federal Litigation have undertaken many significant federal court litigations challenging the Administration’s anti-legal immigration measures. This blog will address some of the most significant pending lawsuits.

The President has issued two proclamations that together ban the entry to the US through at least December 31, 2020, of almost all new immigrants (permanent residents) (with the exception of certain immediate relatives and EB-5 investors) and most people coming to the US on nonimmigrant visas for work-related purposes, including H-1B, H-2B, L-1, and many J-1 exchange visitors. AILA is co-counseling on litigation in the D.C. District Court challenging these proclamations on the basis that they are beyond Presidential authority and that they are not justified as being urgently necessary to address unemployment during the pandemic. In addition to this litigation, separate litigation filed in California by the U.S. Chamber of Commerce and the National Association of Manufacturers seeks to overturn the nonimmigrant visa ban. Rulings on Motions for Preliminary Injunction in both cases are expected in September.

AILA’s Litigation Task Force spearheaded the filing of a class action lawsuit challenging USCIS’ unprecedented and arguably unlawful interpretation of “specialty occupation”, which has led to unprecedented numbers of RFEs and denials of H-1B petitions. After filing the lawsuit, USCIS approved the previously denied H-1B petitions of the named plaintiffs. Additional plaintiffs have now been added, and the lawsuit is moving forward.

The Administration has taken numerous actions to restrict or eliminate family immigration to the U.S. In addition to the immigrant visa ban, two of the actions relate to the imposition of a health care insurance requirement and the addition of arduous and often unattainable requirements to prove that a family member will not be a “public charge.”

On October 4, 2019, President Trump issued a Presidential Proclamation barring the entry to the U.S. of immigrants who cannot prove that they already have approved health insurance for coverage in the U.S. This requirement would have had the practical effect of preventing many immigrants from coming to the U.S. AILA and others filed a federal court complaint seeking to enjoin the healthcare insurance requirement in the federal district court in Oregon. The litigation has resulted in an injunction preventing the government from implementing this onerous requirement. The injunction is presently on appeal.

Various individuals and groups filed lawsuits seeking to enjoin USCIS and Department of State regulations creating unprecedented new evidentiary requirements to overcome the presumption that immigrants will be public charges upon entering the U.S. Multiple federal courts enjoined these new requirements, and a nationwide injunction remains in effect during the pendency of various appeals. In addition to these lawsuits challenging the public charge regulations, AILA filed separate litigation challenging specific aspects of USCIS’ implementation of the new regulations (if they are allowed to go into effect). No action is expected on this litigation unless the nationwide preliminary injunction on the public charge requirement is lifted.

The first litigation initiated under the auspices of AILA’s Litigation Task Force was litigation challenging a USCIS Policy Memorandum that attempted to overturn retroactively a legal interpretation that had existed for over 20 years. As explained in this blog, USCIS has agreed that F, J, and M nonimmigrants do not accrue unlawful presence for purposes of the 3 and 10-year bar unless and until there is an explicit finding that they had violated their status. This interpretation was negotiated by Ron Klasko (who was then General Counsel of AILA) with INS General Counsel. The new policy memo would have resulted in many students and scholars being barred from the U.S. for 3 or 10 years based on unknowing, technical or minor violations of status. Ron served as co-counsel on litigation challenging the Policy Memorandum both on the basis that its publication failed to follow the requirements of the Administrative Procedure Act and that the interpretation is violative of the statutory definition of unlawful presence. A federal district court in North Carolina agreed and issued a nationwide preliminary injunction and Order overturning the USCIS Policy Memorandum. Although the government initially filed an appeal, it recently withdrew the appeal, resulting in the Policy Memorandum being permanently enjoined.

Challenging the actions of the Trump Administration to severely limit legal immigration through litigation has been successful in blocking the implementation of some of the actions altogether, at least delaying the implementation of others. As a leading immigration litigation attorney in the US, Ron Klasko has led the effort to inspire and train immigration attorneys across the country to use litigation as a powerful tool in not only fighting for the rights of companies and immigrants in the US but also fighting for justice and due process in the pursuit of the American dream.

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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