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Trump’s Ban on Employment Visas Lifted for Plaintiffs by Federal Judge

On October 1, 2020 Judge Jeffrey S. White of the U.S. District Court for the Northern District of California issued a preliminary injunction to stop the continued enforcement of President Trump’s ban for the lawsuit plaintiffs on certain employment-based non-immigrant visas such as the H-1B, H-2B, L-1A, L-1B, and J-1 visas, which are some of the most popular employment-based visas for applicants with university degrees, management experience, or trainee positions. President Donald Trump signed Presidential Proclamation 10052 on June 22, which suspended the issuance of visas in certain non-immigrant (temporary) worker categories from July 24 until December 31, 2020.

Photo by Gstudio on Adobe Stock

The preliminary injunction, issued in the case National Association of Manufacturers et al. v. Department of Homeland Security et al., means that certain foreign national employees will now be able to apply for non-immigrant visas impacted by the ban, as well as gain entry to the United States in those categories. It should be noted however, that the injunction is temporary and the ban could be re-instated with a final decision on the underlying case or a subsequent decision by another federal court.

The June 22, 2020 Presidential Proclamation 10052 suspended the issuance of H-1B, H-2B, L-1A/B, and J-1 visas to foreign nationals at United States embassies and consulates abroad. The Proclamation also prohibited entry into the United States by people subject to the ban. The ban was scheduled to last until at least December 31, 2020 with the option to renew. According to the Proclamation, the ban was implemented to protect United States jobs due to unprecedented unemployment resulting from the COVID-19 epidemic.

In making his decision to issue the injunction, Judge White, of the U.S. Court for the Northern District of California, determined that the Trump Administration exceeded its authority in issuing the Proclamation. While the Supreme Court has determined that the President has broad authority to limit immigration, this authority is limited to foreign policy issues. Because the ban focused on a domestic issue – protecting United States jobs – Judge White determined that the ban fell outside the President’s authority. Additionally, Judge White noted that there was little evidence of a coherent economic necessity for the ban.

The L-1A Visa applies to managers and executives. Photo by Anna Shvets on Pexels.com

The injunction, while welcome, does not impact all potential beneficiaries of the affected visa-types. The injunction is limited to employees (or potential employees) of the companies and members of the associations who initially brought the case in which the injunction was issued. This includes Intrax, Inc., TechNet, U.S. Chamber of Commerce, National Association of Manufacturers (NAM), and the National Retail Federation (NRF). An employer does not need to show that they were a member of one of the organizations on the date the injunction was issued. Therefore, a potential workaround to this benefit for applicants who were not plaintiffs in this lawsuit is to join these organizations, such as the US Chamber of Commerce, NAM, and NRF. An employer can join one of the organizations and then potentially argue the injunction applies to them (thus allowing their foreign national employees to apply for a affected visa-type and gain entry to the United States).

An applicant who is applying from outside the US would still need to be able to schedule an interview at their country’s consulate, and receive an approved visa. Many consulates around the world continue to be closed, or to have restricted availability and appointment types due to COVID-19. As this is breaking news that has not yet played out in practice, we will continue to monitor the situation and provide legal updates.

The Grady Firm works with dynamic employers and employees across the country to prepare successful employment-based visa and Green Card applications. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.

This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.


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