H-1B Visa Guidance Means Trump Likely Expects To Lose In Court

Interesting interview with immigration lawyer  H. Ronald Klasko and Stuart Anderson (Canadian tech immigration advantage):

Recent guidance issued by the U.S. Department of State to provide more exceptions to a presidential proclamation that banned the entry of H-1B and L-1 visa holders signals the Trump administration likely expects to lose in federal court. Examining a chronology of events supports this view.

–        On June 22, 2020, the Trump administration issued a presidential proclamation (P.P. 10052) that suspended the entry of foreign nationals on H-1B, L-1 and certain other temporary visas until at least December 31, 2020. The proclamation extended another proclamation, P.P. 10014, which suspended the entry to the United States of most immigrant visa applicants.

–        On July 15, 2020, Wasden and Banias, LLC filed a motion for preliminary injunction on behalf of 174 Indian nationals, asking a court to compel the State Department “to issue decisions on the plaintiffs pending requests for H-1B and H-4 visas.”

–        On July 31, 2020, the American Immigration Lawyers Association, Justice Action Center and Innovation Law Lab filed a motion for a preliminary injunction to enjoin the presidential proclamations on behalf of families, employers and organizations.

–        On August 10, 2020, 52 prominent companies and organizations filed an amicus brief in a lawsuit against the June proclamation brought by the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet and Intrax. In the amicus brief, companies provided examples of how the proclamation harmed U.S. employers by blocking access to talented professionals, executives and others.

–        On August 12, 2020, just two days after the amicus brief from companies was filed, the State Department issued new guidance that broadened the “national interest exceptions” to the June 22nd proclamation (and P.P. 10014) to provide, at least in theory, more ways that foreign nationals and their employers could overcome the suspension on entry contained in the proclamations.

To explore the reasoning and implications behind the Trump administration’s legal maneuvers, I interviewed H. Ronald Klasko, managing partner and founding member of Klasko Immigration Law Partners, LLP. Klasko has practiced immigration law for more than three decades.

Stuart Anderson: Why do you think the State Department issued a guidance memo on August 12th that added more exceptions to the proclamation’s ban on H-1B, L-1 and other visa holders?

H. Ronald Klasko: In my opinion, the answer is obvious. The government’s attorneys likely advised that there is a very good chance that an injunction enjoining the implementation of the nonimmigrant (temporary) visa ban will be issued by one or more of the federal court judges in the pending litigations challenging the legal authority for the issuance of the ban.

The guidance memo appears to be an attempt to address many of the specific issues raised in the declarations and the amicus briefs regarding the prejudice and irreparable harm that this ban is inflicting on companies and foreign nationals. To me it is a clear sign that the administration is cognizant of the likelihood that it will be unsuccessful in avoiding the preliminary injunction unless it attempts to ameliorate the most harmful effects of the proclamation.

I do not believe that this tactic will be successful in preventing the issuance of an injunction because it does not address the legality of the ban. I believe the arguments challenging the legality of the ban are strong.

In addition, I assume that the lawyers involved in the various lawsuits challenging the ban will raise a number of issues, including some or all of the following: 1) the State Department guidance is not binding; 2) its issuance violates the Administrative Procedure Act (APA); and 3) the guidance is an attempt to impose the administration’s wish list for new H and L requirements, which it had planned to issue through regulation, by imposing these new requirements at the consular level as ways to be granted national interest exceptions to avoid the visa ban.

Presently there are no separate H or L requirements at the consular level. Rather, qualifications for these visas are based on a set of regulatory requirements at U.S. Citizenship and Immigration Services (USCIS) that can be reviewed by the courts. The State Department guidance memo creates a new set of requirements for the issuance of these visas that do not exist in the regulation.

By placing the requirements in a State Department guidance memo, it puts them in the context of national interest exceptions that are discretionary determinations and arguably non-reviewable in the courts. In contrast, USCIS adjudications and regulations can be challenged in court.

Anderson: Are there other reasons why the administration issued these measures on H-1B and L-1 visas in the guidance memo rather than in a regulation through the Department of Homeland Security?

Klasko: If the guidance were done through Administrative Procedure Act (APA) rulemaking, the process for notice and comment would be very lengthy time-wise. If the regulation were issued without notice and comment, it would be immediately challenged in the courts. In addition to the timing issue, many of the changes contained in the guidance memo would be subject to challenge as being inconsistent with the statute. (See here.)

Anderson: How would recent immigration memos and regulations be affected if Chad Wolf and Ken Cuccinelli are found to have been unlawfully holding their posts at the Department of Homeland Security and U.S. Citizenship and Immigration Services as the Government Accountability Office concluded?

Klasko: It likely will not impact the nonimmigrant visa ban and the immigrant visa ban, which were implemented through presidential proclamations rather than through memos or policies issued by the Department of Homeland Security (DHS) or USCIS. However, it could definitely be an issue in litigation challenging policies emanating from DHS or USCIS, such as public charge, asylum changes and possibly challenges to possible H-1B regulations.

Anderson: Do think the State Department guidance was helpful to companies and visa applicants?

Klasko: The State Department guidance is helpful in that it creates some possibilities for ameliorating the impacts of the nonimmigrant visa ban for at least some foreign nationals and companies. However, it is an example of a memo where there is less than meets the eye. It creates out of whole cloth an extremely document-intensive process with new requirements completely independent of the (document-intensive) process necessary to obtain USCIS approval of the H or L petition. Companies will have to document conformity with all new standards and requirements with no interpretations and with no certainty if, when and how the consular officers will adjudicate the national interest exceptions (NIEs).

Let’s look at how this will work. First, before there can be an adjudication of the NIE, the foreign national will have to be approved for an emergency appointment at the consulate, which requires proof that the travel is of an emergent nature.

Second, the consular officers will have to adjudicate the national interest exception application subject to no standards or guidance. Who knows how long it will take consular officers to complete these adjudications given that they already have extremely lengthy backlogs from 5 months of closure and they have never had to adjudicate these types of applications previously? This doesn’t even mention the fact that travel bans are still in effect for Schengen, UK, Ireland, China and Brazil.

None of this even addresses how difficult it will be to meet the language of the guidance memo. Most H-1Bs who are not resuming ongoing employment in the U.S. must meet a very difficult standard: their travel must be “necessary” to facilitate the “immediate and continued economic recovery of the U.S.” Think about it, how many H-1Bs are necessary to facilitate the immediate and continued economic recovery of the U.S.?

If the applicant meets those requirements, he then must show that he is making a “significant” and “unique” contribution to an employer meeting a critical infrastructure need. Uniqueness has never been a requirement of the immigration law. If it is really interpreted as requiring that the H-1B be the only person who could possibly do the job, the entire memo may be illusory. One other note: If the applicant is performing or could perform the functions of the position remotely from outside the U.S., he apparently doesn’t qualify.

For L-1s, it is not enough to be a manager or executive, which is the statutory and regulatory requirement. Under the State Department guidance, it is necessary to be a “senior level” executive or manager, which has no definition or guidance. Also, the statutory and regulatory requirement for an L-1 is that the transferee has been employed by the employer for at least 1 year. The State Department guidance requires multiple years of employment. How many years is multiple years?

In summary, the State Department guidance is better than no guidance at all, but possibly not much better.

Anderson: What do you think will happen between now and the end of the year on high skill immigration?

Klasko: I think in the coming months there is a good chance that the nonimmigrant ban and the immigrant ban will be enjoined by at least one federal court. I think that it is possible, and even likely, that there will be additional presidential proclamations of highly questionable legality attempting to implement further restrictions on high skilled immigration. I also think it is possible, or even likely, that there will be an effort to restrict high-skilled immigration through the regulatory process, possibly avoiding the notice and comment rulemaking required by the Administrative Procedure Act. I think litigators will be busy.

Source: https://www.forbes.com/sites/stuartanderson/2020/08/19/h-1b-visa-guidance-means-trump-likely-expects-to-lose-in-court/?utm_source=newsletter&utm_medium=email&utm_campaign=follow&utm_campaign=follow&cdlcid=5e4bc7f55b099ce02faa6b40#69373e5f15ab

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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