WASHINGTON (CN) — A group of U.S.–based plasma collection companies asked the D.C. Circuit Court on Friday to revive its challenge to a law banning noncitizens from entering the country on a visa to get paid for donating their plasma.
Baruch Weiss, an attorney for the five companies, urged the three-judge panel to reverse the lower court’s ruling that only American workers can sue — not businesses — because the only interests protected by the policy is that of American laborers.
Weiss said the government’s claim that the companies or noncitizen donors must prove that they have a “some nexus to international trade or commerce” in order to obtain a B-1 visa is disproven by its own arguments.
“The best way to understand that that position is incorrect is to look at the very specific examples that the government gives in its regulations and in the Foreign Affairs Manual of B-1 qualifying cases,” he said.
The Foreign Affairs Manual advises that consular officers should classify applicants as B-1 if they want to enter the U.S. to “engage in commercial transactions, which do not involve gainful employment in the United States.”
Weiss cited examples of B-1 qualifying cases, including visa approvals for professional athletes to pick up awards and for people to negotiate contracts, to consult with business associates and to participate in scientific, educational, professional, or business conventions, conferences, or seminars.
“What international nexus is there?” he asked.
He also brought up one case in which a construction worker was not allowed to enter the U.S. because his work constitutes “labor,” but his supervisor could because his work constitutes “business.”
“If you’re the supervisor, and not the laborer, you can come in under the B-1 — what international nexus is there?” Weiss asked.
“The government, through the [Board of Immigration Appeals] according to Mr. Yellen’s reading, is saying there is an international nexus requirement, but the government is also … giving examples where there’s clearly no international nexus.”
The only circumstance when an international nexus is relevant to a consular official’s analysis of a visa application is “to determine whether otherwise-local labor is nonetheless permissible under the B-1 visa provision,” the companies said in court filings.
But Judge Douglas Ginsburg pushed back on that argument.
“Why couldn’t all of these occasions for entry be qualified, under the case law of the [Board of Immigration Appeals], as requiring that international connection?” he asked.
The judge, a Reagan appointee, suggested that the construction worker could enter the U.S. under a B-1 visa if the project he is working on was commissioned in Mexico and the litigator could enter if his court business involves affairs outside of the country.
Weiss responded by pointing out that the Foreign Affairs Manual does not explicitly state that an international nexus is required.
“What sort of guidance is that … if you’re giving it to a consular official and you say ‘I’m not going to tell you this — but the most important requirement, that we’re not even going to write down — is that you’ve got to be sure that there’s an international nexus?’” he said.
Meanwhile, Assistant U.S. Attorney Lewis Yelin argued that the need for the international nexus requirement is actually proven by previous B-1 case approvals.
“Every single one of the cases that we have cited, and that opposing counsel has cited, refer to the need for the activity, that is, the noncitizen’s activity, to have a necessary connection to international commerce,” Yelin said.
Friday’s oral arguments were also heard by Judge Neomi Rao, a Trump appointee and Judge Judith Rogers, a Clinton appointee. It is not clear when a ruling will be issued.
The plasma companies that filed the suit in September are CSL Plasma Inc., CSL Behring LLC, Biomat USA Inc., Talecris Plasma Resources Inc. and GCAM Inc.
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