Trump Urges 9th Circ. To Reimpose Work Visa Ban

By Alyssa Aquino
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Law360 (November 16, 2020, 9:13 PM EST) -- The federal government defended President Donald Trump's work visa ban as a lawful exercise of his power to bar foreigners from the country, urging the Ninth Circuit to reimpose the policy on the businesses that secured a block on it.

The U.S. Department of Homeland Security and the U.S. Department of State pressed the appeals court to overturn U.S. District Judge Jeffrey White's order shielding the U.S. Chamber of Commerce and a coalition of technology giants including Apple and Google from a June proclamation temporarily blocking foreign workers from moving to the U.S. on a number of work visas, such as the H-1B specialty occupation visa, L-visa for internal transfers, H-2B guest worker visa and J-1 cultural exchange visa.

The federal government leaned on the U.S. Supreme Court's 2018 ruling upholding Trump's travel ban against citizens from majority-Muslim countries. In that decision, the high court made clear that the president needed to meet a "sole prerequisite" to ban certain foreigners from entering the country — that he finds their admission be detrimental to the interests of the United States, according to the Friday brief.

"The president made that finding here," the government said.

In his visa ban order, Trump cited data showing that unemployment nearly quadrupled between February and May of this year and that American workers compete against foreign nationals in all economic sectors. He additionally highlighted that more than 20 million domestic workers lost their jobs in industries whose employers are asking for H-1B and L-visa workers. 

"Whether the president's chosen method of addressing a perceived risk to the national interest 'is justified from a policy perspective' is irrelevant, because he need not 'conclusively link all of the pieces in the puzzle before courts grant weight to his empirical conclusions,'" the government said, referencing the high court's travel ban decision.

Targeted visa holders, immigration advocacy groups and businesses have disagreed with the crux of Trump's rationale and said the ban was likely to harm domestic businesses reliant on foreign workers, pressing courts in California and Washington, D.C. to strike it down.

Though Judge White in California was swayed by arguments that the policy was likely illegal, Washington, D.C.'s Judge Amit Mehta was unconvinced by H-1B holders' claims and kept the ban intact.

The government stressed that conflict in arguing that Judge Mehta's order was correct.

Judge White had pulled the visa ban back, finding that the ban addressed the "purely domestic economic issue" of unemployment instead of a national security concern. But Judge Mehta had refused to distinguish whether Trump's economic rationale was strictly a foreign or domestic issue, noting that federal immigration law "simply speaks" to the president's power to bar individuals he finds "detrimental to the United States," the government said.

The government further argued that Trump wasn't required to turn over evidence supporting his findings, pushing back against Judge White's conclusion that Trump's economic rationale had little support. 

Representatives for the business groups or the U.S. Department of Justice didn't immediately respond to Monday requests for comment.

The business groups are represented by Paul Hughes, Michael Kimberly, Sarah Hogarth and William Gaede of McDermott Will & Emery LLP, Linda Kelly, Patrick Hedren and Eric KLenicki of the Manufacturers' Center for Legal Action, and Steven Lehotsky and Michael Schon of the U.S. Chamber of Litigation Center.

The federal government is represented by Aaron Goldsmith and Joshua Press of the Justice Department's Civil Division.

The case is National Association of Manufacturers et al v. DHS et al., case number 20-17132, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Suzanne Monyak. Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

NAM, et al v. USDHS, et al


Case Number

20-17132

Court

Appellate - 9th Circuit

Nature of Suit

2899 Other Statutes - APA Review/Appeal

Date Filed

October 29, 2020

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