Federal District Court Blocks Enforcement of Nonimmigrant Entry Ban Against Parties to Court Challenge

The Issue

Judge Jeffrey S. White of the Federal District Court for the Northern District of California has enjoined the Departments of State (DOS) and Homeland Security (DHS) from enforcing the Trump administration’s June 22 proclamation that suspended the entry of H-1B, L-1, H-2B and certain J-1 nonimmigrants, as well as their spouses and dependents, through December 31, 2020, with some exceptions.

The injunction is not nationwide in scope. It benefits only the plaintiffs and organizations that are members of the plaintiff trade groups. Plaintiffs include – the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation and Technet, as well as Intrax, Inc., an organization that sponsors cultural exchange programs.

The injunction will remain in place while the ongoing legal challenge to the proclamation continues.  However, DOS and DHS are expected to appeal the ruling. The case is National Association of Manufacturers et al. v. DHS.

A closer look

Judge White’s injunction is part of a closely watched challenge to President Trump’s June 22, 2020 proclamation that suspended the entry of H-1B, H-2B, L-1A, L-1B, certain J-1s, and their dependents and spouse, if:

• they were outside of the United States at 12:01AM EDT on June 24, 2020;
• they do not have a valid U.S. via in one of the restricted visa categories, pursuant to which the foreign national is seeking entry to the United States, and that was valid on June 24, 2020; and
• they do not hold an advance parole or other U.S. travel document that was valid on June 24, or issued after that date.

In his 25-page decision, Judge White ruled that a limited injunction was necessary because the plaintiffs are likely to succeed in their challenge to the entry suspension. The ruling focused on three key areas.

First, the judge found that the proclamation exceeds President Trump’s presidential authority because, while the president has broadest authority to limit immigration based on foreign policy interests, he has less authority to restrict immigration for purely domestic economic interests (i.e., the economic downturn resulting from the COVID-19 pandemic), which is primarily the domain of Congress.    

Second, Judge White held that the proclamation “unlawfully eviscerates” portions of the Immigration & Nationality Act by declaring invalid statutorily-established visa categories in their entirety for the remainder of this calendar year and indefinitely beyond the [December 31] deadline.”

Finally, the Judge called into question the Trump Administration’s efforts prior to issuing the proclamation to evaluate the economic impact that H, L and J workers have on U.S. unemployment. 

Judge White’s injunction is the second he has imposed against a Trump policy this week. This Wednesday, he ordered a nationwide injunction against USCIS’s new fee rule, which was slated to take effect October 2. 

What this means

Unless the government is successful in its appeal to the injunction or in the underlying litigation, foreign nationals sponsored by the plaintiffs or plaintiff member organizations, as well as their spouses and dependents, should be able to apply for H, L or J visas at U.S. consulates and enter the United States while the entry ban is in place. Guidance from the State Department is expected in this regard.

To determine whether your organization will benefit from the injunction, please reach out to your Fragomen representative. Also, as a reminder, even if a foreign national is no longer subject to the injunction based on Judge White’s ruling, they may still be subject to ongoing COVID-19 travel restrictions, and limited consular operations abroad, which could also impede their ability to apply for a visa or enter/reenter the United States. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.