Dear Sophie: Now that a judge has paused Trump’s H-1B visa ban, how can I qualify my employees?

On Thursday, October 1, a federal judge issued a temporary injunction that halted a presidential proclamation issued in June suspending the issuance of visas for some foreign workers until at least December 31, 2020.

The Trump administration asserted that the COVID-19 pandemic and its ensuing economic impacts made it necessary to impose a moratorium on issuing new green cards, but Judge Jeffrey S. White of the U.S. District Court for the Northern District of California ruled that:

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 …

To explain how employers can respond to the judge’s order, TechCrunch columnist and Silicon Valley-based immigration lawyer Sophie Alcorn has written a supplemental column.

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Dear Sophie:

I just saw yesterday’s news that a judge issued a temporary injunction on the presidential proclamation that halted the issuance of H, L and J visas for individuals abroad, but that it only protects companies in the plaintiff organizations. We have several new hires waiting for visa interviews outside of the U.S. How can they now qualify to get visas to come to the U.S.?

— Supercharged in Sunnyvale

Dear Supercharged:

I’m thrilled that Judge Jeffrey S. White of the U.S. District Court for the Northern District of California temporarily halted President Trump’s June proclamation, which suspended the issuance of H, J, L and other temporary work visas to individuals abroad.

Judge White found that Trump overstepped his authority and exercised “monarchical power” by barring these work visas, adding that it’s in the public interest to uphold the power of Congress in determining immigration matters. The executive proclamation “completely disregards both the economic reality and the preexisting statutory framework,” the judge wrote, “without any consideration of the impact on American firms and their business planning.”

The judge issued his order in response to a lawsuit filed in July by business groups against the Department of Homeland Security and the State Department. The suit challenged the legality of the June proclamation, which suspended the issuance of H-1B and other temporary work visas — and corresponding dependent visas — at U.S. embassies and consulates.

The order requires U.S. Citizenship and Immigration Services (USCIS), an agency within Homeland Security, and the State Department to resume processing and issuing the following visas to the plaintiff organizations that brought the lawsuit:

• H-1B visas for specialty occupations, which means if you have an approved H-1B petition from the March 2020 H-1B visa lottery, your H-1B visa beneficiary could proceed for an interview consular processing.
• H-2B visas for temporary nonagricultural workers.
• H-4 visas for the dependent spouse and children of H-1B and H-2B visa holders.
• J-1 visas for interns, trainees, teachers, camp counselors, au pairs or the summer work travel program.
• J-2 visas for the dependent spouse and children of J-1 visa holders.
• L-1 visas and Blanket L petitions for managers and executives or specialized knowledge workers.
• L-2 visas for the spouse and children of L-1 visa holders.

However, the preliminary injunction only applies to members of the plaintiff organizations. Therefore, it may be prudent for your company to seek membership in one of the following plaintiff organizations, such as the U.S. Chamber of Commerce, in order to seek inclusion in the protected group to qualify for visa interviews for your employees:

• National Association of Manufacturers
• U.S. Chamber of Commerce
• National Retail Federation
• TechNet
• Intrax Inc.

Judge White’s preliminary injunction remains in effect until a final ruling in the case — or an appeal of the case. An appeal appears likely given that last month in a separate case, Judge Amit P. Mehta of the U.S. District Court of the District of Columbia declined to halt both the June proclamation and one issued in April barring green card applicants from entering the U.S.

Also last week, another piece of welcome news affecting immigration came from Judge White: In a separate case, he blocked USCIS’s new fee rule that was slated to go into effect on Oct. 2, 2020. The new rule would have dramatically increased the fees for applying for many immigration and naturalization benefits, including visa and green card petitions.

I’m glad to hear that your visa candidates, particularly for H-1B visas, are only awaiting visa interviews at a U.S. embassy or consulate. That’s because USCIS is expected to issue a new rule shortly that is designed to further restrict the issuance of H-1B visas. The new rule is expected to narrow which jobs qualify for an H-1B specialty occupation visa, limit or even exclude H-1B beneficiaries working at a third-party worksite, and significantly increase the minimum wage rate for H-1B recipients.

Remember that travel restrictions remain in place that bar foreign nationals who have been in any of the following countries during the past 14 days from entering the U.S.:

• China
• Iran
• The European Schengen areas of Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Monaco, San Marino and Vatican City
• United Kingdom
• Republic of Ireland
• Brazil

We often recommend that any new hires consider traveling to a country not on this list for at least a 14-day layover before proceeding to the U.S.

Congrats and best wishes!

Sophie

Adding to the recent string of good news in immigration, the Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced it will now issue PERM labor certifications electronically to employers, which should result in faster notifications. Employers must file for a PERM labor certification if they sponsor an employee for either an EB-2 or an EB-3 green card. The OFLC must approve a PERM application before an employer can submit an EB-2 or EB-3 green card petition to USCIS.

Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!

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