Nonimmigrant Worker Ban Exceeds Presidential Authority

By Jeffrey Gorsky
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Law360 (June 30, 2020, 4:31 PM EDT) --
Jeffrey Gorsky
Jeffrey Gorsky
President Donald Trump recently issued another proclamation, this time aimed at preventing certain nonimmigrant workers from entering the U.S.

The new proclamation, titled "Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak," can be criticized for many reasons — immigration advocates would challenge the basic premise that these temporary workers are a threat to the U.S. labor market — but one aspect of the ban in particular cannot be rationally defended.

The ban includes a class of foreign nationals who, because they are not seeking employment, or even capable of working, are not a threat to U.S. workers.

The underlying legal basis for the travel ban is Section 212(f) of the Immigration and Nationality Act, which allows the president, by proclamation, to bar entry of a foreign national or class of foreign nationals upon a finding that their entry would be detrimental to the interests of the U.S.

The new proclamation identified the economic downturn as the justification for the ban, stating:

The entry of additional workers through the H-1B, H-2B, J, and L nonimmigrant visa programs, therefore, presents a significant threat to employment opportunities for Americans affected by the extraordinary economic disruptions caused by the COVID-19 outbreak.

The ban, however, is not limited temporary workers — it also includes persons "accompanying or following to join" the temporary workers — i.e., their spouse and children. There is no justification in the proclamation for including family dependents in the ban.

Some of these spouses are eligible to apply for employment authorization — spouses of L visa holders can apply for employment authorization as can a limited set of spouses of H-1B and J visa holders. Children, however, are not eligible for employment authorization. Nor are most H-1B spouses, or any spouses of H-2B workers. Moreover, even spouses who are eligible to work may not be seeking employment in the U.S.

These individuals are still subject to the ban even though they present no threat to U.S. employment, and the ban does not provide exceptions for individuals who are not seeking work or capable of taking up work.

An example illustrates how inclusion of family members can lead to absurd results. An L visa holder, who frequently travels between the U.S. and European offices of a multinational company, is stuck in Europe because of another travel ban currently in place that bars anyone who has been physically present in the Schengen region from coming to the U.S. unless they have been outside that region for 14 days.

She would not be subject to the new proclamation, which exempts current visa-holders, because she holds a valid L visa. Therefore, she plans to return to the U.S. once the physical presence ban is lifted. However, she is about to have a baby.

The newborn child will be subject to the new travel ban because, unlike the child's mother, the child will not have a visa valid at the time of the effective date of the ban. As a result, the mother can return to her employment in the U.S., but the infant is barred from the U.S. on the legal grounds that the infant's admission would be detrimental to the interests of the U.S. as a threat to U.S. employment.

The president's April 22 proclamation suspending entry for many immigrant visa classifications had similar flaws — it bars minor children and others who are not part of the labor market from entering the U.S. on the basis that they are a threat to the U.S. labor market.

Neither proclamation allows for an exception if the person is not going to be engaged in employment — the ban's waiver provision requires that the individual's entry is in the "national interest." Therefore, a substantial number of people will be barred from the U.S. without an opportunity to argue for a waiver, even though they do not pose any threat to U.S. jobs, which is the sole justification for the ban.

The overbroad reach of the proclamations exceeds presidential authority and make these bans vulnerable to a court-ordered injunction.

Jeffrey Gorsky is senior counsel at Berry Appleman & Leiden LLP

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. 

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