On Thursday, October 1, 2020, a U.S. District Judge ruled that President Trump exceeded his authority when he issued his Proclamation 10052 on June 22, 2020. The proclamation suspended entry of certain foreign nationals who hold nonimmigrant visas issued on or after June 24, 2020 in the H-1B, H-2B, J, or L categories. The proclamation also extended the expiration date of an earlier proclamation, issued on April 22, 2020 that suspended entry into the U.S. of certain foreign nationals who held immigrant visas issued on or after April 24, 2020.  

In July, the U.S. Chamber of Commerce members of the National Association of Manufacturers and the National Retail Federation, groups representing tech giants like Microsoft and Amazon filed a suit in U.S. District Court (NAM v. DHS), claiming that the President exceeded his authority by overruling immigration laws passed by Congress. In his ruling on October 1, Judge Jeffrey S. White of the U.S. District Court for the Northern District of California agreed with the plaintiffs. The injunction takes effect immediately and enjoins the Department of Homeland Security (DHS) from implementing Proclamation 10052 with respect to the plaintiffs and from engaging in any actions that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories.

Judge White focused his ruling on three areas:

  1. Congressional Delegation of Authority in Domestic Affairs: Judge White argued that Congress has delegated authority to the President to suspend or restrict aliens in certain circumstances, but that this changes “where the authority exercised by the President is outside the suspension of entry of aliens based on foreign policy interests.”[1] The judge concluded that the President’s power is not limitless to suspend entry of aliens into the United States.
  2. The Proclamation Eviscerates Parts of the Immigration and Nationality Act: Judge White concluded the Presidential Proclamation nullifies significant portions of the Immigration and Nationality Act “by declaring invalid statutorily-established visa categories in their entirety for the remainder of this calendar year and indefinitely beyond that deadline.”[2]
  3. The Finding Is Insufficient: The judge cites the absence of any record that the President or any federal agencies at his instruction “conducted any evaluation regarding the effect on the domestic economy of banning work-related nonimmigrant visas at issue here.”[3] In addition, Judge White noted a significant mismatch of facts regarding the unemployment caused by the proliferation of the pandemic and the classes of noncitizens who are barred by the Proclamation. Among the exhibits that the judge referenced was a June 2020 report from the National Foundation for American Policy (NFAP) that showed that the U.S. employment rate in computer occupations remained stable, and even declined in occupations that aligned with those of H-1B visa holders, from January through May of 2020.[4] While the stated purpose of Presidential Proclamation 10052 is to aid U.S. workers, the judge found that the “the Proclamation completely disregards both economic reality and the preexisting statutory framework.”

Please note that the injunction applies only to the named plaintiffs in NAM v. DHS and is not a nation-wide injunction. Nevertheless, the judge’s order affects thousands of American businesses of all sizes from a cross-section of sectors. In addition, the order is also at odds with an earlier decision reached by a federal judge in Washington D.C., which ensures that the ultimate determination will be made by an appeals court.[5] The injunction will remain in effect pending trial.