Feds Flout Trump Work Visa Ban Injunction, Biz Groups Say

By Hannah Albarazi
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Law360 (November 2, 2020, 5:58 PM EST) -- The U.S. Chamber of Commerce and technology giants told a California federal judge Saturday they are "gravely concerned" the Trump administration is flouting an injunction against the president's ban on new work visas under coronavirus-related restrictions, saying visa requests appear to be falling into an "administrative black hole."

Business groups that succeeded in blocking President Donald Trump's June proclamation told U.S. District Judge Jeffrey White that they have evidence that the federal government is not complying with the court's October preliminary injunction, stating that at least five U.S. consulates appear to be refusing to process or intentionally delaying the processing of nonimmigrant work visas.

The groups asked the court to clarify its injunction to remove any doubt regarding the government's obligations, to order limited discovery into the government's compliance and to consider sanctioning the government.

The groups say the U.S. Department of State delayed issuing guidance to the consulates for more than a week after the preliminary injunction came down and then failed to instruct them to comply with the order.

Evidence suggests that U.S. consulates and embassies in Brazil, France, India, Italy and the Philippines are not processing individuals within the scope of the injunction or are failing to do so in a timely manner, the groups told the court.

This is "facial noncompliance with the court's order," the business groups said.

"Requests for visas from those plainly encompassed within the court's order have fallen into an administrative black hole, with no reasonable explanation forthcoming," the groups said, noting that some applicants have been informed that the delays are caused by the government's need to verify that they are members of the groups under the scope of the injunction.

But the business groups say there is a simple verification process that should not take more than a few days to complete and that verification should not be "an opportunity for the administration to drag its feet and flout the orders of this court."

In October, Judge White ruled that Trump likely overstepped his authority when he blocked new work visas under coronavirus-related restrictions, delivering a victory to the Chamber and technology giants that challenged the move.

The court's decision marked a setback for the Trump administration, which has relied heavily on its broad legal authority to bar the entry of foreign citizens to enact severe restrictions on legal immigration.

Judge White found that Trump did not have the authority to issue his June proclamation temporarily blocking companies from bringing on new hires from abroad on a number of visas reserved for high-skilled workers, including the H-1B specialty occupation visa, the L visa for internal transfers, H-2B guest-worker visas and J-1 cultural exchange visas. 

The proclamation, purportedly issued to free up jobs for American workers during the COVID-19 pandemic, has been met with an onslaught of litigation brought by would-be immigrants, technology giants and business associations.

During oral arguments in September, Judge White had wrestled with his own authority to review Trump's proclamation and the rationale behind it. In its 2018 ruling upholding Trump's travel ban, the U.S. Supreme Court found the president has broad authority to suspend the entry of foreign citizens when he determines it is in the national interest.

Judge White asked the government for more evidence supporting the rationale behind Trump's proclamation, but the U.S. Department of Justice's Joshua Press said that none was necessary.

Judge White wrote in his October opinion that "there must be some measure of constraint on presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative."

Rather than blocking the president's visa proclamation nationwide, Judge White limited the relief to the business associations that challenged it. Those groups, which include the Chamber and a coalition of technology giants that counts Apple and Google among its ranks, had argued that the visa restrictions would inflict severe economic harm by preventing them from transferring executives to U.S. offices and attracting foreign talent.

The U.S. Chamber of Commerce alone has roughly 300,000 members, so many of the U.S. businesses seeking to hire foreign workers fall under the injunction.

Judge White's ruling stands in conflict with a D.C. federal judge's ruling in a separate case brought by Indian citizens stuck abroad, where the judge had refused to block the president's ban on H-1B visas.

In their Saturday motion, the business groups also told Judge White that since the court issued its injunction, named plaintiff Intrax, a cultural exchange company, has seen its situation materially worsen.

While Intrax program participants received dozens of U.S. visas pursuant to the proclamation's national interest exception waivers, it has received almost no visas since the issuance of the injunction.

"This concerning course of conduct must stop," the business groups said, urging the court to intervene.

Representatives for the White House and the Justice Department didn't immediately respond to requests for comment Thursday. A State Department spokesperson declined to comment on pending litigation.

The business associations are represented by Paul W. Hughes, Michael B. Kimberly, William G. Gaede III and Sarah P. Hogarth of McDermott Will & Emery LLP.

The federal government is represented by Joshua S. Press of the DOJ's Civil Division.

The case is National Association of Manufacturers et al. v. U.S. Department of Homeland Security et al., case number 4:20-cv-04887, in the U.S. District Court for the Northern District of California.

--Additional reporting by Suzanne Monyak. Editing by Jay Jackson Jr.

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