FGI News and Publications

Federal Judge Issues Preliminary Injunction Against

Trump Block on H, L, J Foreign Workers

On October 1, 2020, a U.S. district judge ruled in NAM v. DHS

against aspects of President Trump’s June 22, 2020,

proclamation that effectively blocked visa issuance to many foreign

workers.

More specifically, the proclamation prevented visa issuance to

intracompany transferees (L-1A and L-1B), skilled workers in

specialty occupations (H-1B), seasonal nonagricultural laborers

responding to proven domestic labor shortages (H-2B), and certain

exchange visitors in work-study programs (J). The plaintiffs

include Intrax, Inc. (a leading operator of cultural exchange

programs), the National Association of Manufacturers (NAM), the

U.S. Chamber of Commerce, the National Retail Federation, and

TechNet. Collectively, the plaintiffs’ members include hundreds

of thousands of U.S. businesses of all sizes and a variety of

economic sectors.

Among other things, the court rejected the government’s

position that the Presidential Proclamation implicated the

President’s foreign affairs powers simply because it affects

immigration. The court noted that this Proclamation deals with a

purely domestic economic issue – the loss of employment during a

national pandemic – and that in domestic economic matters, the

national security and foreign affairs justifications for policy

implementations disappear, and normal policy-making channels are

the default, which includes the traditional pathway of public

rulemaking. Indeed, the court said, “there must be some

measure of constraint on Presidential authority in the domestic

sphere in order not to render the executive an entirely monarchical

power in the immigration context, an area within clear legislative

prerogative.”

The court also noted that the Proclamation at issue nullified

significant portions of the Immigration and Nationality Act (INA)

by declaring invalid statutorily established visa categories in

their entirety for the remainder of this calendar year and

indefinitely beyond that deadline. “Until, at a minimum, the

end of the year, the Proclamation simply eliminates H-1B, H-2B,

L-1, and J-1 visas and nullifies the statutes creating those visa

categories,” the court noted, “and rewrites the carefully

delineated balance between protecting American workers and the need

of American businesses to staff their operations with skilled,

specialized, and temporary workers.” The court said that the

work visa provisions of the INA set out a “finely reticulated

statutory scheme” that “reflects a set of legislative

judgments that the entry of international workers is in the

national interest provided they enter the market under the specific

terms and conditions provided by the statute.” The court found

that the President’s “wholesale elimination of categories

of workers does not supplement this legislative judgment but rather

explicitly supplants it by refusing admission to all categories of

foreign workers.”

The court granted the plaintiffs’ request for a

preliminary injunction pending trial in this action or further

order of the court. The scope of relief applies only to the named

plaintiffs and their members. Some practitioners advise employers

to consider joining NAM or the U.S. Chamber of Commerce to gain

relief under the injunction. The government is expected to

appeal.

Details: NAM v. DHS, order granting plaintiffs’ motion for

a preliminary injunction (Oct 1, 2020), https://www.courtlistener.com/recap/gov.uscourts.cand.362746/gov.uscourts.cand.362746.87.0.pdf</a>;

“Judge Blocks Trump’s Ban on Foreign Workers,” New

York Times, https://www.nytimes.com/2020/10/01/us/foreign-workers-visas-h-1b-trump.html</a>;

“Judge Rules Against Trump’s H-1B Visa Ban: President Is

Not a Monarch,” Forbes, https://www.forbes.com/sites/stuartanderson/2020/10/02/judge-rules-against-trumps-h-1b-visa-ban-president-is-not-a-monarch/#5c6bc32851cc</a>;

“Proclamation Suspending Entry of Aliens Who Present a Risk to

the U.S. Labor Market Following the Coronavirus Outbreak,”

Presidential Proclamation, https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-aliens-present-risk-u-s-labor-market-following-coronavirus-outbreak/

USCIS Issues Guidance on Fee Rule Following

Litigation

On September 29, 2020, a U.S. district court preliminarily

enjoined the Department of Homeland Security from implementing or

enforcing any part of U.S. Citizenship and Immigration

Services’ (USCIS) rule on its fee schedule and changes to

certain other immigration benefit request requirements.

USCIS said that while the rule is preliminarily enjoined, the

agency will continue to:

Details: Court order, Immigrant Legal Resource Center et al.

v. Wolf, et al., https://www.nafsa.org/sites/default/files/media/document/preliminjonfeerule2020.pdf</a>;

USCIS alert, https://www.uscis.gov/forms/filing-fees</a>;

USCIS final rule on fees (Aug. 3, 2020), https://www.govinfo.gov/content/pkg/FR-2020-08-03/pdf/2020-16389.pdf</a>;

Adjudicators Field Manual, chapter 10.9 (https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm10-external.pdf)

and 10.10 (https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm10-external.pdf)

DHS Proposes Rule to Amend Affidavit of Support

Regulations

The Department of Homeland Security (DHS) proposes to amend

its regulations governing affidavit of support requirements.

Certain immigrants must submit an Affidavit of Support

executed by a sponsor who agrees to provide financial support to

the sponsored immigrant and accepts liability for reimbursing the

costs of any means-tested public benefits a sponsored immigrant

receives while the affidavit is in effect. In its October 2, 2020,

notice of proposed rulemaking, DHS proposes to clarify how a

sponsor demonstrates the means to maintain income, such as revising

the documentation that sponsors and household members must submit.

DHS also proposes to modify when an applicant is required to submit

an affidavit from a joint sponsor, who may be a household member

for purposes of executing a Contract Between Sponsor and Household

Member, and who is considered as part of a sponsor’s household

size. DHS also proposes to update reporting and information-sharing

requirements between authorized parties and U.S. Citizenship and

Immigration Services.

Written comments on the proposed rule and related information

collection should be submitted by the deadlines and using the

methods specified in the notice.

Details: DHS notice of proposed rulemaking, 85 Fed. Reg. 62432

(Oct. 2, 2020),

State Dept. Issues Guidance on National Interest

Exceptions for Travelers from the Schengen Area, United Kingdom,

and Ireland

The Department of State (DOS) recently released updated

guidance on national interest exceptions for travelers from the

Schengen Area, United Kingdom (UK), and Ireland. Certain business

travelers, investors, treaty traders, academics, students, and

journalists may qualify for national interest exceptions under

related Presidential Proclamations. Qualified travelers who are

applying for or have valid visas or Electronic System for Travel

Authorization (ESTA) authorization may travel to the United States

following the procedures below:

DOS said it also continues to grant national interest

exceptions for qualified travelers seeking to enter the United

States for purposes related to humanitarian travel, public health

response, and national security.

Federal Judge Rules on

DV-2020 Visas

A U.S. district court judge ruled on September 30, 2020, that

the Department of State intentionally misinterpreted the Trump

administration’s entry ban by not issuing diversity visas. The

court reserved 9,095 DV-2020 visas for issuance after the final

order in the case, which extends the FY 2020 deadline well into FY

2021. The court also granted class status to all non-plaintiffs

whose visas had not been issued when Presidential Proclamation

10014, later extended by Presidential Proclamation 10052, took

effect.

State Dept. Releases Instructions for DV-2022 Visa

Lottery Program

The Department of State (DOS) released instructions on the

diversity visa (DV) program for fiscal year 2022, under which up to

55,000 immigrant visas will be available. Applicants must submit

entries for the DV-2022 program electronically at https://dvprogram.state.gov/ between

noon ET, October 7, 2020, and noon ET, November 10, 2020. DOS

recommends entering earlier in the registration period due to

likely heavy demand and consequent website delays toward the end of

the period. Submission of more than one entry will result in

ineligibility.

There is no cost to register for the program. Applicants must

meet “simple but strict” eligibility requirements. DOS

determines selectees through a randomized computer drawing and

distributes diversity visas among six geographic regions. No single

country may receive more than 7 percent of the available diversity

visas in any one year.

For DV-2022, persons born in the following countries are not

eligible to apply: Bangladesh, Brazil, Canada, China (including

Hong Kong SAR), Colombia, Dominican Republic, El Salvador,

Guatemala, Haiti, Honduras, India, Jamaica, Mexico, Nigeria,

Pakistan, Philippines, South Korea, United Kingdom (except Northern

Ireland) and its dependent territories, and Vietnam.

Details: “Instructions for the 2022 Diversity Immigrant

Visa Program (DV-2022),” https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2022-Instructions-Translations/DV-2022-Instructions-and-FAQs-English.pdf