Court Halts Trump’s COVID-19 Work Visa Ban

 Suzanne Monyak  for Law360 reports that a federal judge ruled that President Donald Trump likely overstepped his authority when he blocked new work visas under coronavirus-related restrictions, delivering a victory to the U.S. Chamber of Commerce and technology giants that had challenged the move.  Here is the ruling.

U.S. District Judge Jeffrey White ruled that President Trump lacked the authority to issue the June Proclamation temporarily blocking companies from bringing on new hires from abroad on a number of visas reserved for high-skilled workers, including the H-1B (specialty occupation ), the L (internal transfers), H-2B (guest-worker), and J-1 (cultural exchange) visas.

The Proclamation stated that it was designed to save jobs for U.S. workers during the recession caused by the pandemic. The court ruled that, while the president does have significant powers to suspend the entry of foreign citizens abroad in matters of national security, the president does not have “unbridled authority to set domestic policy regarding employment of nonimmigrant foreigners.”  The court distinguished the Supreme Court’s decision in Trump v. Hawaii upholding the travel ban on national security grounds.

“Indeed, 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,” Judge White wrote in a crisp 25-page opinion. “Such unrestricted authority would be contrary to Congress’ explicit delegation of powers in foreign affairs and national security.”

Judge White, however, limited the relief to the business associations that challenged the visa proclamation, rather than blocking it nationwide. 

The National Association of Manufacturers, as one of the lead plaintiffs in NAM v. Department of Homeland Security, released this statement following the ruling:

“The ruling places an immediate hold on a series of damaging visa restrictions that prevent manufacturers from filling crucial, hard-to-fill jobs to support economic recovery, growth and innovation when we most need it.

“Manufacturers went to court to challenge the administration’s ban on certain visas because the restrictions both undermined our industry at a critical time and conflicted with the law,” said NAM Senior Vice President and General Counsel Linda Kelly. “We are grateful the court recognized the real and immediate harm these restrictions have meant for manufacturers right now and stopped this misguided policy until the court can fully consider the matter.

“We are competing with the rest of the world to find and develop top talent to support innovation in our industry. Today’s decision is a temporary win for manufacturers committed to building that innovation in the United States. A long-term win for manufacturers requires policymakers to support meaningful reforms to our immigration laws that recognize the critical link between smart immigration policy and America’s competitive advantage.”

UPDATE (Oct. 3):  Click here for Peter Margulies’ commentary on the ruling.  He notes that “page 12 n. 3 of his opinion cited the amicus curiae brief by Immigration Law scholars (in which I served as co-counsel with Penn State’s Shoba Sivaprasad Wadhia and Loeb & Loeb’s Neil Nandi and Laura McNally). “

KJ