The future of U.S. immigration policy and the fate of thousands of H-1B, L-1 and other visa holders rests in the hands of a federal judge. Arguments were heard on a preliminary injunction filed by businesses against the Trump administration’s June 2020 proclamation to suspend the entry of foreign nationals on H-1B, L-1, H-2B and (most) J-1 temporary visas. The critical question before District Judge Jeffrey S. White: Does the president possess essentially unlimited power to override immigration laws passed by Congress and block any visa holder from entering the United States?
At the September 11, 2020, hearing in the U.S. District Court for the Northern District of California, Paul Hughes of McDermott Will & Emery, counsel for the plaintiffs, framed the issues before the court as follows: If Congress delegated unlimited authority to the president under Section 212(f) of the Immigration and Nationality Act (8 U.S.C. § 1182(f)), the law is unconstitutional as an unlawful delegation of authority by Congress. If the authority is not unlimited, then there are limits to the president’s authority based on rational standards, the Supreme Court’s decision in Trump v. Hawaii and the 9th Circuit decision in Doe v. Trump.
“I think the principle is there ultimately has to be a reasonable connection between the stated problem and the action that is ultimately taken,” said Hughes. The plaintiffs in the case are the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet and Intrax.
The plaintiffs focused on the Trump administration’s claim the proclamation is a reasonable use of the president’s authority under Section 212(f) of the Immigration and Nationality Act (INA). “The Proclamation exceeds the President’s powers under Section 212(f) because it directly conflicts with congressional judgments embedded in the INA: Congress specified that certain guest worker programs are in the national interest, but, for more than six months, the Proclamation nullifies those statutes,” according to the plaintiffs’ reply brief in support of the motion for preliminary injunction. “And, in so doing, the Proclamation fails to make a reasonable finding, which the Ninth Circuit holds is requisite for the use of Section 212(f) to address a domestic problem. These limitations are essential to ensure that Section 212(f) effects a bounded – and thus constitutional – delegation of authority to the Executive.”
The plaintiffs’ focus may have improved the chances for the judge to grant a preliminary injunction. “The plaintiffs did a good job identifying one of the contradictions in the government’s defense,” said Greg Siskind of Siskind Susser in an interview. “The government argues that Section 212(f) gives the president extremely broad power to ban people. But if you buy that argument and that Congress’ immigration framework can be ignored, then this is an unconstitutional delegation of the Constitution’s requirement that Congress regulate immigration.”
“The plaintiffs’ lawyer also did a good job showing that all the past examples since the law was created in 1952 fit into three types and none are nearly as broad as this,” said Siskind. “They either are limited to a particular country, members of a particular organization or people who engage in certain dangerous behaviors. All uses filled in gaps in the Immigration and Nationality Act rather than overriding it. This proclamation clearly rewrites the law and that’s different than what the Supreme Court allowed in Trump v. Hawaii (the Muslim travel ban case).”
The hearing started with Judge White stating two key issues in the case are the factual basis for the proclamation and was it supported by law, and the legal basis for the proclamation.
Joshua Press, an attorney for the Department of Justice (DOJ), argued a president does not need for a proclamation to be supported by a record “at all.” He said Section 212(f) is “clear and concise” and “all that a president actually needs to make is a finding.” He said a 212(f) proclamation issued by President Bill Clinton against Sudanese nationals was only one sentence. In response to a question from Judge White, Press said nonetheless, there is a factual or evidentiary record that supports the proclamation, and stated that there is a supply and demand issue and millions of workers have lost their jobs during the pandemic. At the judge’s request, Press read from parts of the proclamation. (See here for the government’s opposition to plaintiffs’ motion for preliminary injunction.)
The judge asked Paul Hughes to respond to the government’s citation of Trump v. Hawaii and the decision in the Gomez v. Trump (issued September 4, 2020). Judge White stated that Judge Amit P. Mehta in the Gomez case “seems to say” only a minimalist finding is necessary by the president.
Hughes replied that the “place to begin” is the Ninth Circuit’s recent decision in Doe v. Trump that upheld a preliminary injunction against the Trump administration’s proclamation to impose a health insurance mandate on new immigrants. Hughes said the Ninth Circuit decision “strongly indicated” that the president could not satisfy the requirement of findings with virtually no factual findings or “minimal reasoning.” Hughes noted the administration engaged in a much more elaborate process in the proclamation at the center of Trump v. Hawaii than in the June 2020 employment visa ban proclamation.
The key part of the Ninth Circuit decision reads: “The panel acknowledged that the President is owed broad deference with respect to this provision [212(f)], but nonetheless concluded at this juncture, for two reasons, that the Plaintiffs are likely to succeed in refuting the government’s contention that § 1182(f) legitimizes the Proclamation: 1) the Proclamation’s perfunctory time limitations do not comport with the textual limits of § 1182(f); and 2) § 1182(f) does not provide the President with limitless power to deny visas to immigrants based on purely long-term economic concerns.”
Hughes also pointed to the Supreme Court’s Department of Commerce v. New York decision that, in his words, required “a rational connection” between the facts and the claims made by government officials. He noted that is a standard that predates the Administrative Procedure Act.
In response to a question from Judge White, Hughes attacked the administration’s argument about “supply and demand” and that all workers are fungible. Hughes noted the administration itself does not believe all workers are fungible, pointing to the exemptions included in the proclamation for workers in the food supply or in medical fields responding to Covid-19. “The straightforward answer is employment is not fungible,” said Hughes. Because somebody is unemployed in one job does not mean the individual has the skill set to satisfy other jobs, he said, adding, “I don’t think the proclamation can legitimately rest on the notion that there is broad fungibility because the proclamation itself recognizes there is not broad fungibility.”
Judge White asked what principle should be used to evaluate the proclamation. “I think the principle is there ultimately has to be a reasonable connection between the stated problem and the action that is ultimately taken,” said Hughes. He argued the proclamation does not make a connection between the H-1B and L-1 categories and Covid-19-related unemployment.
In a potentially signficant exchange, Hughes noted the L-1 category for intracompany transferees is limited to individuals who have worked for their company for at least one year. “That’s the very definition of a non-fungible employee,” said Hughes. “Somebody who is suffering from Covid-related unemployment is not going to have a year or more extensive experience working for a particular employer.” (He said, given the labor certification requirements, H-2B visa holders are also not fungible.)
“Paul Hughes noted that the L-1 category requires someone to have at least a year’s experience with the company, which is obviously not fungible,” said Greg Siskind. “The government response here was particularly weak.”
DOJ’s Press said that L-1 visa holders could work remotely. But if that was the case, why would companies go to the trouble of transferring them into the United States? Press stated that the number of L-1 visa holders was “relatively, pretty rare” because the company has to bring in an upper-echelon executive or someone with “extraordinary ability” to supply needed services to that company. “I think most of these affected companies would involve not the type of services and sectors and jobs that the president was most concerned about,” said Press. “But people can actually sort of do those jobs remotely is really what I’m getting at here. And I don’t see the emergency, much less irreparable injury, to any of the companies as to why those employees cannot be brought in. I don’t think there’s been anything on the record at all from them when it comes to the L-1’s.”
The plaintiffs’ complaint and other documents specified harm companies have experienced due to the proclamation blocking L-1 visa holders from entering the United States. An executive at a company “was slated to transfer to the U.S. on an L-1 visa to manage a $1.2 billion business portfolio that works with more than 4,000 businesses across the United States,” according to the plaintiffs. “Due to Covid-19, he was unable to get a visa appointment at the U.S. consulate before the consular posts closed, and now he is subject to the proclamation. The time zone difference between India and the U.S.-based headquarters has made it difficult for him to manage his new team.” Other examples were provided, including statements in an amicus brief signed by 52 companies and organizations.
Far from “rare,” the State Department issued 733,487 L-1 visas between 2000 and 2019, including 76,988 in FY 2019. An L-1 visa holder must be a manager or executive, or possess “specialized knowledge” of a company’s “product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.” As one technology company executive told me, “There’s a lack of logic to say someone on an L-1B visa with ‘specialized knowledge’ would affect a U.S. worker. These individuals are crucial to working on long-term projects and to developing products for export to global markets.”
In its complaint, the plaintiffs cited a National Foundation for American Policy analysis of Bureau of Labor Statistics (BLS) data that showed the unemployment rate for individuals in computer occupations remained stable in the United States between January and May 2020. That was data available at the time the June proclamation was issued suspending the entry of H-1B visa holders. The judge asked about an amicus brief filed by the group U.S. Tech Workers that said the unemployment rate was higher in “computer and mathematical occupations.” Hughes explained that the National Foundation for American Policy used Bureau of Labor Statistics data and focused on computer occupations because DHS statistics showed computer occupations most closely match up with the positions in which H-1B visa holders are employed. Ironically, it is not a question of competing methodologies, since the Trump administration did not cite the unemployment rate for “computer and mathematical occupations” in its proclamation.
Near the end of the hearing, Hughes argued a preliminary injunction was necessary to prevent irreparable harm to companies. As an example, he pointed to Intrax, which operates 6 exchange programs, “five of which – summer work travel, au pair, intern, trainee and camp counselor – are entirely shut down by the Proclamation. . . . As a result of the Proclamation, Intrax has already had to furlough a significant percentage of its staff members, and the remaining staff have taken large pay cuts. The Proclamation is thus directly causing a loss of U.S. jobs at Intrax and other J-1 sponsors across the Nation,” according to the complaint.
Plaintiffs argued a significant distinction the judge should keep in mind is that Trump v. Hawaii did not override the Immigration and Nationality Act but imposed screening requirements not legislated upon by Congress. In contrast, the June 2020 proclamation and the requirements for exemptions in the August 12, 2020, State Department guidance contradicted provisions in U.S. immigration laws that Congress passed. “The court found in Trump v. Hawaii the screening requirements was an area where there was a gap and there was not an affirmative statement by Congress that the president’s proclamation was directly contradicting,” said Hughes. “It was an area where the president could fill in the gaps. That’s simply not the case here.”
Without a preliminary injunction or a favorable decision for the plaintiffs, the ban on entry could remain in place for years and could even be expanded. After Trump v. Hawaii, the administration added more countries to the travel ban while keeping the ban largely intact. In 2020, administration officials became further emboldened and used Section 212(f) to block the entry of almost all immigrants and employment-based temporary visa holders to the United States. In few immigration cases have the stakes been this high.