Federal Judge Issues Injunction Against Presidential Proclamation 10052
On Thursday, October 1, 2020, a U.S. District Judge ruled that
President Trump exceeded his authority when he issued his
Proclamation 10052 on June 22, 2020. The proclamation suspended
entry of certain foreign nationals who hold nonimmigrant visas
issued on or after June 24, 2020 in the H-1B, H-2B, J, or L
categories. The proclamation also extended the expiration date of
an earlier proclamation, issued on April 22, 2020 that suspended
entry into the U.S. of certain foreign nationals who held immigrant
visas issued on or after April 24, 2020.
In July, the U.S. Chamber of Commerce members of the National
Association of Manufacturers and the National Retail Federation,
groups representing tech giants like Microsoft and Amazon filed a
suit in U.S. District Court (NAM v. DHS), claiming that
the President exceeded his authority by overruling immigration laws
passed by Congress. In his ruling on October 1, Judge Jeffrey S.
White of the U.S. District Court for the Northern District of
California agreed with the plaintiffs. The injunction takes effect
immediately and enjoins the Department of Homeland Security (DHS)
from implementing Proclamation 10052 with respect to the plaintiffs
and from engaging in any actions that results in the non-processing
or non-issuance of applications or petitions for visas in the H, J,
and L categories.
Judge White focused his ruling on three areas:
- Congressional Delegation of Authority in DomesticAffairs
: Judge White argued that Congress has delegatedauthority to the President to suspend or restrict aliens in certain
circumstances, but that this changes “where the authority
exercised by the President is outside the suspension of entry of
aliens based on foreign policy interests.”1 The judge concluded that the
President’s power is not limitless to suspend entry of aliens
into the United States.
- The Proclamation Eviscerates Parts of the Immigrationand Nationality Act:
Judge White concluded thePresidential Proclamation nullifies significant portions of the
Immigration and Nationality Act “by declaring invalid
statutorily-established visa categories in their entirety for the
remainder of this calendar year and indefinitely beyond that
deadline.”2
- The Finding Is Insufficient: The judge citesthe absence of any record that the President or any federal
agencies at his instruction “conducted any evaluation
regarding the effect on the domestic economy of banning
work-related nonimmigrant visas at issue here.”3 In addition, Judge White noted a
significant mismatch of facts regarding the unemployment caused by
the proliferation of the pandemic and the classes of noncitizens
who are barred by the Proclamation. Among the exhibits that the
judge referenced was a June 2020 report from the National
Foundation for American Policy (NFAP) that showed that the U.S.
employment rate in computer occupations remained stable, and even
declined in occupations that aligned with those of H-1B visa
holders, from January through May of 2020.4 While the stated purpose of
Presidential Proclamation 10052 is to aid U.S. workers, the judge
found that the “the Proclamation completely disregards both
economic reality and the preexisting statutory
framework.”
Please note that the injunction applies only to the named
plaintiffs in NAM v. DHS and is not a nation-wide
injunction. Nevertheless, the judge’s order affects thousands
of American businesses of all sizes from a cross-section of
sectors. In addition, the order is also at odds with an earlier
decision reached by a federal judge in Washington D.C., which
ensures that the ultimate determination will be made by an appeals
court.5 The injunction will remain
in effect pending trial.
Footnotes
https://www.forbes.com/sites/stuartanderson/2020/10/02/judge-rules-against-trumps-h-1b-visa-ban-president-is-not-a-monarch/#6f9b688051cc
https://www.forbes.com/sites/stuartanderson/2020/10/02/judge-rules-against-trumps-h-1b-visa-ban-president-is-not-a-monarch/#6f9b688051cc
https://www.forbes.com/sites/stuartanderson/2020/10/02/judge-rules-against-trumps-h-1b-visa-ban-president-is-not-a-monarch/#6f9b688051cc
4. https://nfap.com/wp-content/uploads/2020/08/Updated-Analysis-of-Employment-Data-for-Computer-Occupations.NFAP-Policy-Brief.June-2020.pdf
5. https://www.nytimes.com/2020/10/01/us/foreign-workers-visas-h-1b-trump.html
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