OAKLAND, Calif. (CN) — President Donald Trump’s executive order suspending certain work visas through the end of the year will devastate scores of industries that rely on seasonal and specialty workers, organizations representing hundreds of U.S. businesses affected by the sweeping proclamation argued in federal court Friday.
Paul Hughes, counsel for the U.S. Chamber of Commerce, National Association of Manufacturers, National Retail Federation, and other industry groups urged U.S. District Judge Jeffrey White to enjoin Trump’s June proclamation, which he said the president imposed without factual basis or reasoning.
Trump cited the coronavirus pandemic-driven economic downturn when he signed the order temporarily barring entry, with limited exceptions, to foreign workers through the H-1B, H-2B, J-1 and L-1 labor pipelines. The order applies to workers in specialized industries like tech, seasonal laborers, cultural exchange program participants, and executives seeking intra-company transfers to the U.S.
The proclamation incited a legal challenge from businesses claiming it would decimate their bottom lines and upend the Immigration and Nationality Act’s visa regulations.
In a motion for a preliminary injunction, Microsoft said Trump’s proclamation is blocking the transfer of a French national who has worked for the company since 2011. Amazon has also argued that its business is being disrupted by a senior manager’s inability to return to the U.S. after a visit abroad.
Companies seeking to hire non-citizens for temporary construction and landscaping jobs say they face severe labor shortages because of the order. Gentle Giant Moving Company says it stands to lose an estimated $8 to $10 million in revenue because they are foreclosed from hiring 83 seasonal workers.
“Without these critical H-2B workers, many businesses, a significant portion of which are small and operate on thin profit margins, cannot expand their operations. In many cases, these businesses must downsize when their company cannot meet their seasonal workforce needs, and in the worst-case scenarios, these businesses night be forced to close permanently, putting the American workers at threes businesses out of a job,” U.S. Chamber of Commerce immigration policy executive Jon Baselice wrote in a court filing.
Hughes, the plaintiffs’ attorney, said, “The companies are at risk of failing, of going insolvent if the proclamation continues. They are losing the entirety of their revenue while this proclamation is in effect.”
Pointing to the Ninth Circuit’s decision in Doe v. Trump, Hughes said the proclamation must have some rational foundation. In that case challenging an executive order requiring immigrants to prove they either had or could afford health insurance, the appellate court held that Trump’s proclamation was issued “with virtually no factual findings, minimal reasoning, and an extremely limited window for public comment, raising serious questions as to whether the president has effectively rewritten provisions of the INA.”
Hughes said the same standard applies here.
"There has to be a reasonable connection between the problem and the action that is ultimately taken,” he said. “There must be some basis to say that individuals who would enter in the H, J, or L categories would have a relationship to Covid-19 unemployment.”
Judge White asked Hughes how his argument squares with Section 1182 (f) of the Immigration and Nationality Act, which empowers the president to "for such a period as he shall deem necessary, suspend the entry of all aliens or any class of aliens ... or impose on the entry of aliens any restrictions he may deem to be appropriate.”
“The INA is basically saying he can suspend them or impose any restrictions he may deem appropriate — how is that contradictory?” White asked.
Hughes said the section also "requires a president to engage in reasoned, orderly decision making.”
Arguing for the government, Justice Department attorney Joshua Press said Trump does not need a factual record to support his proclamation.
“All the president actually needs to make is a finding for an entry ban. In this case, the president consulted with the departments of Labor and Homeland Security,” Press said. “It's unchallenged that millions of U.S. workers have lost their jobs, including immigrants already here and working. It’s really as simple as the law of supply and demand, which undergirds this case. The plaintiffs’ argument is built on their disagreement with that economic proposition, but it is not for them to make that call and it's not for the judiciary to substitute their discretion in economics.”
Press added that courts are not meant to second-guess the executive branch with their own policy judgments. "This is not meant to be a jab at your honor or any district court — it's just that the immigration system is regularly tied into foreign affairs and it is difficult for the judiciary to make these kinds of judgments,” he said.
The executive branch’s position is bolstered by the U.S. Supreme Court’s ruling in Hawaii v. Trump upholding the president’s travel ban on immigrants from predominantly Muslim countries, Press said. Chief Justice John Roberts wrote in his majority opinion that the ban was supported by §1182 (f).
Press asked White to deny the injunction on that basis, but also argued that irreparable harm falls much harder on American workers than on the businesses importing foreign labor.
“When it comes to irreparable harm, if you look at the millions of jobs lost by the workers in the United States, they' re hurting far worse than the plaintiffs in this case,” he said.
White took the arguments under submission. In deciding whether to grant the industry groups’ request to block the proclamation, he will likely look to U.S. District Judge Amit Mehta’s ruling this month in Gomez v. Trump. Mehta partially halted an April proclamation that suspended the processing and issuance of new green cards and effectively barred entry to winners of the 2020 diversity visa, colloquially known as the green card lottery.
Mehta ordered the administration to process all 2020 lottery applications as quickly as possible before Sept. 30. But he also found the plaintiffs not likely to succeed on their constitutional challenge to the proclamation.
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