Nat'l Ass'n of Mfrs. v. U.S. Dep't of Homeland Sec.

• Decision Date: 01 October 2020
• Docket Number: Case No. 20-cv-04887-JSW
• Citation: 491 F.Supp.3d 549
• Court: U.S. District Court — Northern District of California
• Parties: NATIONAL ASSOCIATION OF MANUFACTURERS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

491 F.Supp.3d 549

NATIONAL ASSOCIATION OF MANUFACTURERS, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Case No. 20-cv-04887-JSW

United States District Court, N.D. California.

Signed October 1, 2020

Michael B. Kimberly, Pro Hac Vice, Paul W. Hughes, III, Pro Hac Vice, Sarah P. Hogarth, Pro Hac Vice, McDermott Will Emery LLP, Washington, DC, William G. Gaede, III, McDermott Will & Emery LLP, Menlo Park, CA, for Plaintiffs.

Glenn M. Girdharry, Joshua Samuel Press, United States Department of Justice, Aaron Steven Goldsmith, U.S. Department of Justice Office of Immigration Litigation, District Court Section, Washington, DC, for Defendants.

ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Re: Dkt. No. 31

JEFFREY S. WHITE, United States District Judge

Now before the Court is a motion for a preliminary injunction filed by the National Association of Manufacturers, Chamber of Commerce of the United States of America, National Retail Federation, Technet, and Intrax, Inc. (collectively "Plaintiffs"). The Court has considered the parties’ papers, relevant legal authority, the parties’ arguments at the hearing, and the full record provided in the case.¹ For the reasons that follow, the Court GRANTS Plaintiffs’ motion.

On June 22, 2020, the President issued Presidential Proclamation 10052 ("Proclamation 10052" or "the Proclamation"), which suspends entire visa categories for four sets of nonimmigrant work visas for a period lasting until December 13, 2020, and with discretion to be continued "as necessary." The Proclamation is entitled Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak . The stated purpose of the Proclamation is to eliminate the threat of taking jobs from American citizens who may find themselves without employment during the "extraordinary economic disruptions caused by the COVID-19 outbreak." 85 Fed. Reg. 38,263 at 38,264 (June 25, 2020).

Broadly speaking, the visa categories at issue here provide for: (1) intra-company transfers to non-citizens already employed by American businesses; (2) highly-skilled workers coming to America temporarily to perform services in a specialty occupation for which they are uniquely qualified; (3) seasonal laborers responding to proven domestic labor shortages; and, (4) cultural exchange visitors in a variety of work-study programs nationwide. The question presented to the Court for its review is not whether the Proclamation is good public policy, but rather (1) whether the stated legal basis for the issuance of the Proclamation is supported by law, and (2) whether the stated factual premise for the issuance of the Proclamation is supported by the evidentiary record, including the findings within the Proclamation itself.

BACKGROUND

A. Factual Background.

On April 22, 2020, the President signed Proclamation 10014 ("Proclamation 10014"). See Presidential Proclamation 10014, Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak , 85 Fed. Reg. 23,441 (Apr. 27, 2020). Proclamation 10014 suspended the entry of all immigrants into the United States for 60 days unless they qualified for an exception to the Proclamation. Proclamation 10014 also directed "[w]ithin 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend ... other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers." Id. at 23,442.

Two months later, on June 22, 2020, the President issued Proclamation 10052 – the proclamation at issue in this matter – extending the suspension of entry pursuant to Proclamation 10014 through December 31, 2020, with discretion to continue its efficacy "as necessary." See 85 Fed. Reg. at 38,263. The President explained that the extension was necessary as the 60-day timeframe set by Proclamation 10014 was insufficient for the United States labor market to stabilize and that "the considerations present in Proclamation 10014 remain." Id.

In addition to extending the suspension of entry of immigrants, Proclamation 10052 also suspended entry of foreign nationals seeking admission on temporary nonimmigrant visas, with limited exceptions. The President announced that the Secretary of Labor and the Secretary of Homeland Security, having reviewed the nonimmigrant programs as formerly directed, had "found that the present admission of workers within several nonimmigrant visa categories also poses a risk of displacing and disadvantaging United States workers during the current recovery." Id. The Proclamation states that "[u]nder ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy. But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers." Id. The Proclamation states that "[t]he entry of additional workers through the H-1B, H-2B, J, and L nonimmigrant visa programs ... presents a significant threat to the employment opportunities affected by the extraordinary economic disruptions caused by the COVID-19 outbreak." Id. at 38,264. The President, exercising his authority under 8 U.S.C. sections 1182(f) and 1182(a), "determined that entry, through December 31, 2020, of certain aliens as immigrants and nonimmigrants would be detrimental to the interests of the United States," including suspension of all H-1B, H-2B, J, and L nonimmigrant temporary workers. Id.

Defendants U.S. Department of State and U.S. Department of Homeland Security are charged with implementing the entry ban on nonimmigrant workers as set forth in Section 2 of the Proclamation. The U.S. Department of State has ceased processing or issuing visas in the impacted categories during the time the Proclamation has been in effect. The U.S. Department of Homeland Security also has paused the processing of certain new nonimmigrant visa applications.

1. Visa Categories at Issue.

The Immigration and Nationality Act ("INA") governs the admission of noncitizens into the United States. See generally , 8 U.S.C. §§ 1101, et seq. Specifically, the INA provides for various categories of nonimmigrant visas for noncitizens planning to enter the United States temporarily and/or for limited and specific purposes. See id. §§ 1101(a)(15) ; 1184. The Proclamation at issue here eliminates these nonimmigrant visa categories.

a. L Visa Category.

The L visa category allows multinational corporations to sponsor visas for temporary intra-company transfers to the United States. These visas are issued to noncitizens who have "been employed continuously for one year by a firm or corporation ... and who seek[ ] to enter the United States temporarily in order to render [their] services to the same employer" and will perform a "managerial" or "executive" function (L-1A visas) or have certain "specialized knowledge" about the company's product or processes and procedures (L-1B visas). See id. §§ 1101(a)(15)(L) ; id. § 1184(c)(2)(B) (defining "specialized knowledge"); see also 8 C.F.R. §§ 214.2(l)(1)(ii)(B)-(D). L-2 visas are available for accompanying spouses and minor children. 8 U.S.C. § 1101(a)(15)(L).

b. H Visa Category.

The H1-B visa category enables employers in the United States to hire qualified foreign professionals in "specialty occupation[s]" requiring "theoretical and practical application of a body of highly specialized knowledge" and a "bachelor's or higher degree." Id. §§ 1184(i)(1), 1101(a)(15)(H)(i)(b). Prior to hiring a H1-B nonimmigrant, an employer must first file a labor condition application with the Department of Labor and must identify the specialty occupation position and the specific location of employment. In its application, the employer must also attest that the position will pay a prevailing wage, that the position will not adversely affect other workers, and that the company has provided certain forms of notice regarding the position. Id. §§ 1182(n)(1)(A)-(D). New H1-B visas are capped at 65,000 per year, with an additional 20,000 positions available to individuals with an advanced degree earned from a higher education institution within the United States.

The H2-B visa category enables employers in the United States to hire foreign nationals "to perform ... temporary service of labor" in non-specialized, non-agricultural sectors, "if unemployed persons capable of performing such service or labor cannot be found in this country." Id. at § 1101(a)(15)(H)(ii)(b); see also 8 C.F.R. § 214.2(h)(6). In order to hire a H2-B employee, an employer must certify to the Department of Labor that it has attempted to recruit domestic workers for the position, but that no such workers are available, and that temporary employment of a H2-B visa worker will not adversely affect the wage rates or working conditions of similarly employed domestic workers. See 8 C.F.R. §§ 214.2(h)(6)(iii)(A)-(D), 6(iv)(A). H2-B visas are limited to 66,000 per year.

H-4 visas are available to "the alien spouse and minor children" of a noncitizen entering under one of the other H visa categories. 8 U.S.C. § 1101(a)(15)(H) ; 8 C.F.R. § 214.1(a)(2).

c. J Visa Category.

The J visa category allows approved applicants to participate in work- and study-based cultural exchange visitor programs. See 8 U.S.C. § 1101(a)(15)(J). The regulations under this provision establish 15 categories of exchange program eligibility, including trainees, teachers, au pairs, and summer work and travel for foreign students. 22 C.F.R. §§ 62.1, 62.4. In order to qualify,...