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This is Big: Visa Pathway Opens for Foreign Workers Seeking H-1B; H-2B; L-1 and J-1 Visa Stamps

An important court ruling yesterday by Judge Jeffrey S. White of the U.S. District Court for Northern District of California has opened a visa pathway for temporary workers and their employers.

On June 22, 2020 President Trump issued a Presidential Proclamation 10052 (“Visa Ban”) which suspended the issuance of four types of visas:  H-1B; H-2B; L-1 and J-1, and also prohibited the admission into the U.S. until at least December 31, 2020 of persons subject to this Visa Ban.  Our past alerts on this Visa Ban may be accessed here.

The President claimed that he issued this Visa Ban purely for domestic economic reasons: to protect the U.S. labor force in the wake of the pandemic. But there is a strong argument that the President overstepped his authority in issuing this Visa Ban, since the underlying rationale of this Proclamation related to domestic policy-making (as opposed to keeping immigrants out of the U.S. for national security reasons).  Further, by a stroke of his pen, the President wiped out the availability of four categories of work visas specifically enacted into law by Congress.

Because the Proclamation allows for such limited exceptions to its broad reach, this Visa Ban has adversely impacted thousands of employers and temporary workers across the United States.  People who are subject to it simply cannot get L-1 or H-1B visa stamps at US Consulates abroad while the ban is in place (unless they fit into an exception/exemption based on the nature of their work). 

As noted above, yesterday, the U.S. District Court for the Northern District of California upheld a legal challenge to this Visa Ban filed by plaintiffs including Intrax, Inc., the U.S. Chamber of Commerce (AmCham); the National Association of Manufacturers (NAM), the National Retail Federation, and TechNet.  The above-referenced association plaintiffs had filed the lawsuit on behalf of their association members claiming that the Proclamation exceeded the President’s authority and that it violated the Administrative Procedures Act (APA).   Now that the federal court in California has enjoined this Ban, members of the plaintiff associations can benefit from the injunction.  This means if an employer can show it is a member of one of these associations, or becomes a member of one of them, it can argue that the injunction applies both (a) when its employees apply for a visa abroad in one of these categories, and (b) when seeking to enter the U.S. in one of these otherwise banned visa categories.  

Joining a Plaintiff association is a straightforward matter.  For example, a company can join the American Chamber of Commerce by paying a fee of $250. U.S. Consulates should honor proof of membership in a plaintiff association in considering visa applications for one of these impacted visa categories.

It is rare to be able to take advantage of a legal ruling in this way, and all U.S. employers who depend upon their valued H-1B, H-2B, L-1 and J-1 workers, should immediately try to leverage this opportunity presented by this injunction.

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©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume X, Number 276
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About this Author

Susan J. Cohen, Immigration Attorney, Mintz Law Firm
Member / Founding Chair, Immigration Practice

Susan is a nationally recognized immigration lawyer. As Chair of Mintz’s Immigration Practice, she works with corporate clients to address their immigration challenges. Susan is very active in the American Immigration Lawyers Association (AILA) and has contributed to federal and state immigration regulations. She is frequently quoted in the media. She is also an editor of Mintz’s Immigration Law blog and has been recognized as a “Top Author” by JD Supra. Susan helped to lead a Mintz team that worked with the ACLU of Massachusetts and others to obtain a temporary...

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