Judge Jeffrey White of the US District Court for the Northern District of California has issued a preliminary injunction halting the June 22nd nonimmigrant visa ban. This is a stinging blow to an Administration that has used the ban to block the entry of hundreds of thousands of H-1B, H-2B, J-1, and L-1 workers and their families.

The order is limited to the plaintiffs. However, the main plaintiffs are massive membership organizations that represent the bulk of the countries employers.  And all of their members will benefit. Effectively, the Administration will have to allow all visas in the categories to be admitted given the size of the plaintiffs’ memberships. The plaintiffs in the case include the National Association of Manufacturers, the National Retail Federation, Technet, J-1 program sponsor Intrax, and the US Chamber of Commerce. There is also no bar on a company that is not currently a member of one of these groups from becoming a member and being covered by the order.

The court initially gave a history of the Proclamation. It is Presidential Proclamation 10052 and it was signed June 22nd and is in place until December 13, 2020. It covers people in the H-1B, H-2B, J-1, and L-1 visa categories who were not in the US on June 24th or in possession of an unexpired visa on that date if they were outside the US. The stated purpose of the Proclamation is to eliminate the threat of taking jobs from American citizens who may find themselves without employment during the “extraordinary economic disruptions caused by the COVID-19 outbreak.

After reciting the history of the case and outlining the covered categories, the judge’s analysis begins with a look at the legal standards applicable to a motion for a preliminary injunction. Plaintiffs must show 1) they are likely to succeed on the merits; 2) they will suffer irreparable harm without relief from the court; 3) the balance of equities tip in their favor and 4) an injunction is in the public interest.

Likelihood of success – The Defendants Threshold Contentions Lack Merit. The government argued the plaintiffs lacked standing because they didn’t allege harm and the Administrative Procedure Act doesn’t apply to presidential actions. The judge found neither argument convincing. The government stated that the plaintiffs alleged harms were vague, but the judge pointed to the numerous declarations outlining in detail the harm suffered by the organization members. As to the APA, the government argued that a final agency action hadn’t been taken but the court also found this unpersuasive.

The court next turned to the question of whether the Proclamation exceeds the President’s powers. The judge reviewed INA 212(f), the section of the law permitting entry ban proclamations. The judge started his analysis by examining the Constitution which reserves the right to regulate commerce and immigration to Congress. Congress has created an elaborate immigration system and determined what grounds govern when a person is inadmissible. Congress has delegated some authority to the President under 212(f) to suspend the entry of any people whose entry to the US would be detrimental to the country’s interests.

Judge White looked at the Hawaii v. Trump decision (the Supreme Court decision upholding the Muslim ban) and noted that the court said the President gets deference. The Supreme Court noted that it matters if the ban is connected to foreign policy. But in Doe #2 v. Trump (the ban on immigrants without health insurance), the 9th Circuit recently found that the 212(f) power is not limitless. A proclamation dealing with a purely domestic economic issue is different. The court in this case found that it’s not foreign policy just because it deals with immigration (citing East Bay Sanctuary Covenant v. Trump from 2020) and they agreed that this was a resetting of domestic policy. Also, if the power was as broad as the government believed, it would be a delegation of authority constitutional violation.

The court also found that the Proclamation “unlawfully eviscerates portions of the INA.” Congress did not delegate authority to eviscerate portions of the statute in which the Congressional delegation of power was made. The Supreme Court found in Hawaii that it does not give the President authority to countermand Congress’s considered policy judgments. The proclamations essentially destroy entire visa categories in the INA. And Congress set up a system to balance the needs of business and American labor so the President’s stated purpose is infringing on Congress’s authority.

The government argued that the Proclamation isn’t an override of the INA, but “an expression of the President’s power to impose additional restrictions on immigration in a time of national emergency.” However, if there is a conflict between the Proclamation and the statute, there’s a problem. Here, the Proclamation doesn’t supplement legislative judgment but rather “explicitly supplants it by refusing admission to all categories of foreign workers.”

Thus, the court found the plaintiffs showed they were likely to succeed on the merits.

The Court next looked at the question of whether the President’s Finding regarding harm to US workers is sufficient. There is no record that the President or any agencies conducted any evaluation regarding the effect on the domestic economy of banning work-related nonimmigrant visas. There were no reviews or reports made showing any negative effect on the US economy. And the plaintiffs had loads of counter-evidence. Thus, the plaintiffs won on this issue as well.

Because the plaintiffs won the other issues, the court didn’t address the question of whether the government had the authority to implement the Proclamation’s provisions.

The judge next turned to the question of irreparable harm. The judge found that the plaintiff associations and their members and Intrax will suffer harm as a result of their limitation on their ability to to hire and retain qualified individuals from abroad. The government argued the harms were based on consulates closing because of COVID and not the visa bans. The judge called this “patently untrue” and noted that many of the consulates are open and processing other kinds of visas.

The government also pointed to the various national-interest exceptions. The judge noted that applying for an exception is expensive. Second, those not eligible for an exception are harmed.  Also, the claim that a policy does not cause harm because there are exceptions to the policy is “a logical fallacy.”

Finally, the judge reviewed the balance of equities and the Public Interest requirements for a preliminary injunction. When the government is a party, these two factors merge. “The Court finds that the public interest is served by the cessation of a radical change in policy that negatively affects Plaintiffs whose members comprise hundreds of thousands of American businesses of all sizes and economic sectors. The benefits of supporting American business and predictability in their governance will inure to the public.”

The judge noted that the plaintiffs are not seeking a “nationwide” injunction of the Proclamation. Instead, the judge is ordering

  1. The Government is enjoined from enforcing Section 2 of Proclamation 10052 with respect to Plaintiffs and, with respect to the association Plaintiffs, their members.
  2. The Government is enjoined from engaging in any action that results in the non-processing of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance, with respect to the Plaintiffs and their members.
  3. The injunction shall take effect immediately and remains in effect until the pending trial or further order of the court.

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