Judge Halts Trump’s Order to Suspend Work Visas

President Donald Trump wraps up his speech at a campaign rally at Fayetteville Regional Airport, Sept. 19, 2020, in Fayetteville, N.C. (AP Photo/Evan Vucci)

OAKLAND, Calif. (CN) — President Donald Trump overstepped his authority in issuing a sweeping proclamation suspending certain types of non-immigration work visas through the end of the year, a federal judge said Thursday in a ruling barring the order from being applied to dozens of companies and members of industry groups that opposed it.

Trump cited the pandemic-driven economic downturn when he temporarily barred entry, with limited exceptions, to foreign workers through the H-1B, H-2B, J-1 and L-1 labor pipelines. His April proclamation applies to workers in specialized industries like tech, seasonal laborers, cultural exchange program participants and executives seeking intra-company transfers to the United States. 

A coalition of groups representing thousands of American businesses, including the  U.S. Chamber of Commerce, National Association of Manufacturers, National Retail Federation, Microsoft, Amazon and cultural exchange group Intrex all sued to block its enforcement, saying if left in place, the restrictions would upend the Immigration and Nationality Act’s visa regulations and trigger severe labor shortages.

At a hearing in September, the Justice Department argued that Trump had the authority to issue the proclamation under a U.S. Supreme Court ruling upholding the president’s travel ban on immigrants from predominantly Muslim countries.

U.S. District Judge Jeffrey White found the high court’s ruling inapplicable to the visa proclamation, writing, “In contrast to the Muslim Proclamation that was before the Supreme Court in Hawaii III, the Proclamation here deals with a purely domestic economic issue – the loss of employment during a national pandemic.”

White also wrote that the authority Congress delegated to the president to restrict or suspend foreign entry into the United States has its limits, and that Trump exceeded them. 

“Congress’ delegation of authority in the immigration context . . . does not afford  the President unbridled authority to set domestic policy regarding employment of nonimmigrant foreigners,” White wrote. “Indeed, 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.”

He said Trump’s proclamation “eviscerates” rather than supplements the Immigration and Nationality Act.

“Until, at a minimum, the end of the year, the proclamation simply eliminates H-1B, H-2B, L-1, and J-1 visas and nullifies the statutes creating those visa categories,” he wrote. “The Proclamation, by its explicit terms, rewrites the carefully delineated balance between protecting American workers and the need of American businesses to staff their operations with skilled, specialized, and temporary workers.”

Preexisting visa prisons in the INA are already structured so as not to threaten American  jobs, White said. 

“Unlike the Muslim Proclamation, here, the president’s wholesale elimination of categories of workers does not supplement this legislative judgment but rather explicitly supplants it by refusing admission to all categories of foreign workers,” he wrote.

He cited by way of example the H-2B visa for temporary nonagricultural workers, for which the Department of Labor requires employers to certify that there are insufficient number of qualified U.S. workers available and caps at 66,000 per year.

“The pre-existing law already guarantees that issuance of an H-2B visa will not disadvantage American native-born workers,” White wrote. “Regardless, the proclamation eviscerates the visa category in its entirety.”

“The proclamation attempts to wholly remake immigration laws in a way that conflicts with what Congress has enacted,” said Paul Hughes, an attorney for the industry groups, in a phone interview Thursday evening. “The statutes Congress adopted are responsive to the economic condition in the U.S. such that the issuance of visas is tied to prevailing domestic conditions. Congress knew how to take into account the fact that there is cyclical economic contraction in the U.S. and it addressed that in the statutory scheme.”

White also noted that the Trump administration did no evaluation of how banning work-related visas would affect the U.S. economy or employment rates, and offered no evidence to support its assertion that foreign workers are stealing American jobs.

“The statistics regarding pandemic-related unemployment actually indicate that unemployment is concentrated in service occupations and that large number of job vacancies remain in the area most affected by the ban, computer operations which require high-skilled workers,” White wrote, adding, “Further, based on actual facts in the record, the court finds that the public interest is served by cessation of a radical change in policy that negatively affects plaintiffs whose members comprise hundreds of thousands of American businesses of all sizes and economic sectors.”

“My clients are enormously grateful at the sweeping victory that Judge White issued,” Hughes said. “He was very careful and took care to address the full spectrum of issues in a way that is both cogent and accessible to the general public. Many millions are deeply affected by this order.”

In a statement Thursday, U.S. Chamber of Commerce immigration policy executive Jon Baselice called the ruling “a great victory for American businesses and our nation’s economy.”

An attorney for the Department of Justice referred Courthouse News to its deputy spokesperson, who did not return a request for comment by press time.

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