AILA Challenges the Trump Administration’s Visa Ban Proclamation in Court

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Pasricha & Patel

On April 22, 2020, President Trump signed an Executive Order to suspend the entry of foreign nationals for a period of 60 days, citing the need to protect the U.S. domestic workforce during COVID 19 crisis.

Specifically, foreign nationals that fall under the following categories would not be allowed entry into the United States:

1) If the foreign national was outside the United States on the effective date of this proclamation;

2) If the foreign national did not have an immigrant visa that is valid on the effective date of this proclamation;

3) If the foreign national did not have an official travel document other than a visa that is valid on the effective date of this proclamation, or one that is issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

Then, on June 22, 2020 President Trump followed up with his initial Proclamation and extended the visa entry ban for another 60 days to last until December 31, 2020.

In addition to extending the denial of entry of foreign nationals who fit in the categories listed above, several new categories were added to that list:

1) An H-1B or H-2B Visa applicant, or any alien accompanying or following to join such alien;

2) J Visa applicants to the extent the alien is participating as an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien

3) L visa applicant, and any alien accompanying or following to join such alien

There are exceptions to the visa ban though. They include:

1) Any lawful permanent resident of the United States;

2) Any alien who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1), of a United States Citizen;

3) Any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain (in addition to the healthcare fields);

4) Any alien whose entry would be in the national interest as determined by the Secretary of State, Homeland Security, or their respective designees.

Also, individuals who are in the healthcare field and who are considered essential to the fight involving COVID 19 crisis, and also individuals who are critical to law enforcement, defense, diplomacy, and national security will also be exempt from this visa ban.

On April 28, 2020, the American Immigration Lawyers Association (AILA), Justice Action Center and Innovation Law Lab challenged the first proclamation issued by President Trump in court. Then, with the release of the second Presidential Proclamation on June 22, 2020, AILA amended their initial argument on behalf of families, employers, and organizations that are challenging the June 22, 2020 proclamation.

AILA’s main argument against the Presidential Proclamations is that there is no credible evidence that these foreign nationals would take jobs away from U.S. workers. AILA argues that the U.S. government’s own labor statistics contradict the Presidential Proclamation because immigration helps to stimulate the economy by creating jobs and improving working conditions for Americans. Twenty two (22) states and the District of Columbia have also filed their briefs in support of AILA, collectively arguing that these Presidential Proclamations are harming their citizens and are not helping the economy.

This legal action is still ongoing. And depending on the outcome of this legal challenge, either the Presidential Proclamations will be reversed, or they will be revised to limit the scope of the affected foreign nationals. In fact, the U.S. Department of State has already issued various National Interest Exceptions that broaden the exceptions to the visa bans. It appears that the Trump administration had issued these proclamations without citing credible evidence saying that foreign nationals are hurting U.S. interests, and the U.S. Department of State is trying to limit the impact of the visa bans to just first-time visa applicants.

Due to the everchanging immigration laws and regulations, we will continue to keep an eye on the situation and should there be any further developments in this area, we will be sure to let our readers know. We do suggest readers to continue to visit our site to keep up to date with any further developments. And we encourage you to contact our office for more formal consultation should you have any specific questions.