December 1, 2021

Volume XI, Number 335

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Judge Issues Preliminary Injunction Against Nonimmigrant Ban

Judge Jeffrey S. White has granted the plaintiffs’ request for preliminary injunction preventing the continued enforcement of the Presidential Proclamation suspending the entry of certain individuals in H, L, and J status (Nonimmigrant Ban) in National Association of Manufacturers et al. v. Department of Homeland Security et al.

This ban has been creating uncertainty for employers and their intra-company transferee employees, high-skilled workers, seasonal laborers, cultural exchange visitors, and dependents who have been stuck abroad since June. The injunction applies solely to the named plaintiffs and their members: the National Association of Manufacturers, the Chamber of Commerce of the United States, the National Retail Federation, Technet and Intrax, Inc. According to the court, the members of these associations include hundreds of thousands of American businesses of all sizes and across all economic sectors.

Judge White determined that the Nonimmigrant Ban likely exceeded the authority of the Executive Branch. Although the U.S. Supreme Court has held that the President has broad authority to prevent the entry of foreign nationals when foreign policy is involved (as in the Travel Ban 3.0 case, Judge White stated that because the Nonimmigrant Ban is based purely on domestic economic policy, the President’s power is not unbridled. In this situation, the President cannot nullify the carefully balanced statutory framework passed by Congress regarding nonimmigrant visas. Judge White was also troubled by the fact that nothing in the record showed there was an evaluation of the effect this ban would have on the national economy. Rather, according to Judge White, the evidence indicated the Nonimmigrant Ban disregarded economic reality.

In balancing the equities, Judge White found an injunction was justified in part because of the injuries suffered by the plaintiffs, including “disruption of their operations, interference with existing employees, the closing of open positions, furlough or lay-offs of employees, substantial pay cuts, threatened loss of prospective customers, shutting down of entire programs, inability to make capital investments and the likelihood that some businesses or cultural programs will have to cease operations altogether.”

Judge White is the same judge who had earlier stopped the USCIS’ fee rule from going into effect.

Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 276
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About this Author

Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National...

(402) 391-1991
Michael H. Neifach Jackson Lewis Employment visa Lawyer border security matters attorney
Principal

Michael Neifach is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is a recognized leader on immigration, visa and border security matters, and he is Co-Leader of the firm's Immigration practice group.

Mr. Neifach has held senior positions at the White House Homeland Security Council, U.S. Department of Homeland Security, and U.S. Immigration and Customs Enforcement (ICE). He served as General Counsel at ICE from July 2007 through January 2009. Following his government service, Mr. Neifach oversaw...

(703) 483-8300
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