DOS Issues Update on Court Order Regarding Proclamation Suspending Entry of Aliens Who Pose a Risk to the U.S. Labor Market
On June 22, President Trump issued a Presidential Proclamation 10052 (PP 10052) suspending certain nonimmigrant visas until December 31, 2020. Effective June 24, the proclamation prohibits foreign nationals, and any foreign nationals accompanying or following to join them, from entering the U.S. under the H-1B, H-2B, J, or L nonimmigrant visa classifications.
Lawsuit Challenging the Proclamation’s Legal & Factual Bases
On July 21, 2020, Intrax, Inc. (a leading operator of cultural exchange programs), together with four associations – the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, and TechNet – filed a complaint in California Federal Court seeking to invalidate PP 10052 based on the theories that (1) it exceeds the authority of the executive branch and (2) it violates the Administrative Procedures Act.
Based on the plaintiffs’ arguments, the court granted their motion for a preliminary injunction on October 1, 2020, with the injunction remaining in effect until trial or further court order. An injunction is a court order that requires an entity to cease doing a specific action, and preliminary injunctions are those granted before or during a trial. Preliminary injunctions aim to preserve the status quo until a final judgment is issued in the pending litigation.
The injunction prohibits the Department of Homeland Security from:
- Implementing, enforcing, or carrying out the suspension and limitation on entry provisions of PP 10052; and
- Engaging in any action that results in the non-processing or non-issuance of applications or petitions for H, J, and L visas which would be eligible for processing without PP 10052.
These stipulations are narrowly applied only to the plaintiffs and members of their associations.
Department of State Updates Based on the Preliminary Injunction
The Department of State (DOS) issued two updates to the proclamation based on the court’s grant of the preliminary injunction:
- On October 2, 2020, DOS announced PP 10052 would not be taken into account in making emergency appointments at embassies and consulates.
- On October 9, 2020, DOS announced that any J-1, H-1B, H-2B, or L-1 applicant sponsored by, petitioned by, or whose petitioner is a member of one of the named plaintiffs in the suit challenging PP 10052 is no longer subject to PP 10052’s entry restrictions
As mentioned above, the named plaintiffs include Intrax, Inc., the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, and TechNet. The four association plaintiffs have members comprising of hundreds of thousands of U.S. businesses, notably including Microsoft and Amazon.
Under the October 9th update, hundreds of thousands of businesses can sponsor or petition for J-1, H, and L visas on behalf of employees, and the employees (and their accompanying dependents) will not be prohibited from entering the U.S. under PP 10052. The current injunction only applies to the named plaintiffs and members of their associations. All other businesses are still subject to the restrictions of PP 10052, at least until a final judgment is issued in court.
If you have any questions about how the DOS updates may affect you or your employee’s immigration plans, be sure to contact Berardi Immigration Law to speak with one of our attorneys!
Published 15 October 2020