In April and June, numerous Presidential Proclamations suspended entry of thousands of legal immigrants and nonimmigrants least until December 31, 2020, using the COVID-19 pandemic as the reason. This is despite the fact that legal immigration has been proven to bring economic growth.
One proclamation affects family-based, diversity visa, and employment based “Green Card” applicants. Another affects those applying for H-1B, L-1, and J-1 visas.
The web of COVID-19 travel restrictions and exemptions has led to a lawsuit seeking to block any further implementation of the proclamations. The plaintiffs and amici in Domingo Arreguin Gomez et al. v. Donald Trump et al. include diversity visa applicants, family-based immigration applicants, advocacy groups, employers, and 21 states. Judge Amit P. Mehta held a hearing on August 27, 2020, on a motion for injunctive relief.
In support of their motion, the plaintiffs contended the Trump Administration is exploiting the COVID-19 crisis to prevent immigration of the sort the President has long opposed. They argued the record does not support the Administration’s contention that allowing immigrants into the U.S. will exacerbate unemployment. They stated that the only evidence on this issue indeed proves the opposite – immigrants are important to the economic recovery. The plaintiffs distinguished U.S. Supreme Court precedent from the Travel Ban case (Trump v. Hawaii), which held that the President has great deal of power in terms of preventing the entry of foreign nationals based upon national security concerns, as long as the policy is not based solely on guesswork. The Gomez plaintiffs argued, however, that this case is very different because there is a clear lack of reasoned decision-making, in violation of the Administrative Procedures Act (APA). Another difference is that the proclamations are adding new visa eligibility requirements – something only Congress can do.
At the hearing, there was sharp argument about how much work is being done by the Consulates and how much more they could be doing at this time. While all of the plaintiffs are being subjected to various levels of hardship due to the proclamations, diversity visa applicants are in a particular bind. If their cases are not adjudicated by the end of the fiscal year (September 30, 2020), they will lose their chance to apply for permanent residence.
Judge Mehta said he will issue his decision as soon as possible.
If an injunction is issued in this case, employers with employees in H-1B, L-1, and J-1 status may be able to move forward with their currently stymied employment and business plans. Jackson Lewis attorneys will provide updates in this important case as soon as they become available.