We've seen this movie before.
Scene 1: The President issues a proclamation in reliance on his authority to restrict the entry of certain noncitizens under Immigration and Nationality Act (INA) § 212(f) so long as he asserts that allowing them in would be "detrimental to the interests of the United States."
Scene 2: The proclamation creates exceptions to the entry bans based on the national interests of the United States (among other grounds).
Scene 3: Affected parties apply for exceptions; their requests are ignored or denied under opaque or nonexistent administrative procedures; and they sue in federal court.
This was the plot of the three travel-ban proclamations issued in 2017, the last of which the Supreme Court upheld in its 2018 decision, Trump v. Hawaii. After the Supreme Court's ruling, litigation ensued because plaintiffs in several suits alleged that the government's actions (refusing visas under 22 CFR §§ 41.121 and 42.81) conflicted with the proclamation and the statutory authority of the Secretary of State in INA § 104. The litigation continues, having survived a government motion to dismiss, which a federal judge denied on June 5 in Emami v. Nielsen [and] Pars Equality Center v Pompeo (Pars Equality).
Sequels to Travel Ban–The Movie have since spewed forth, as the Congressional Research Service reports:
Issued between January and March 2020, these [Presidential] proclamations collectively suspend the entry of aliens who, within the prior 14 days, have been in mainland China, Iran, the European Schengen Area, Ireland, or the United Kingdom. . . . Also related to COVID-19, a proclamation that took effect on April 23, 2020 suspends the entry of many aliens on immigrant visas for 60 days, for the stated purposes of protecting Americans from job competition during the economic recovery and reducing strain on the domestic health care system.
The latest release, bearing the tongue-tiring title, "Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak," aired on June 22, and a bloodier Director's Cut (thought to be the work of Stephen Miller) premiered on June 29. Together, they extend the immigrant visa ban and bar the entry of foreign citizens requiring work visas in the H-1B, H-2B, L-1, and many J-1 categories along with their dependents (the June Bans) until the end of 2020.
The bans for the listed countries and regions (the Area Bans) created various carve outs, including a subjective one, i.e., if the entry of a noncitizen "would be in the national interest." The June Bans likewise included national-interest exceptions, but if based upon any job- or business-related claims of national interest, they set a very high bar. An economic-imperative exception to the work-visa bans would apparently not be allowed unless the entry of the applicant is shown to be "necessary to facilitate the immediate and continued economic recovery of the United States."
As a practical matter, however, unless a national-interest (or other) exception is granted, neither the Area Bans nor the June Bans make much difference for the immediate future because most consular posts are closed and visa interview appointments are unavailable — except on a showing of emergency (which one can assert if an appointment long into the future is snagged and then the chance to explain appears in the online DS-160 visa application, or the consular post's email can be found or its fax number identified).
So does it make any sense to pursue a national-interest exception to any of the entry bans based on economic exigency? I say, "yes," and here's why.
- There Will Be Blood. As this is written, numerous organizations and individuals are identifying plaintiffs, and polishing off final drafts of soon-to-be-filed complaints and motions for emergency relief that seek to set aside the bans. Fiercely contested litigation often creates unforeseen beneficiaries. The government may try to "moot out" plaintiffs and dismiss a case challenging its exercise of discretion by granting their requests for a national-interest exception. Also, a remedial order granting relief may apply to anyone who asked for a national-interest exception but was refused. Litigation challenging the Area Bans and the June Bans may well succeed given the arbitrary and miserly grounds on which national-interest exemptions have been approved. Based on information reportedly from the U.S. Embassy in Paris, and independently confirmed by this blogger, the "bar is extremely high as to what constitutes national interest":
So far, the only cases considered for a national interest exception are those of intended parents of children to be born through surrogacy in the United States and whose presence will relieve the hospital of the childcare burden during the current national health emergency; and researchers/healthcare workers or employees whose work is directly related to COVID-19 mitigation, treatment, or prevention.
Surely, competent litigators will make much of the exalted national interest in surrogate parenting (albeit important to the affected couples) that is seen by consular officials as trumping far more profound and broadly painful economic impacts.
- The American President. The entry bans are not the only times President Trump has proclaimed on the economy. In a Presidential executive order ("EO"), entitled "Regulatory Relief To Support Economic Recovery," EO 13924 (May 19, 2020), he called on all federal departments and agencies to combat the economic consequences of COVID-19 with "vigor and resourcefulness," provide "exemptions from regulations and other requirements that may inhibit economic recovery [and] . . . use, to the fullest extent possible . . . any emergency authorities that I have previously invoked in response to the COVID-19 outbreak or that are otherwise available to them to support the economic response to the COVID-19 outbreak (emphasis added)." This is the third admonition of the President to urge the Administrative State to go easier on businesses and individuals (I blogged about the earlier two here). He has also trumpeted recent improvements in the unemployment numbers in May and June, noting that the economy is "roaring back." Thus, by wrapping a national-interest/economic-imperative request in presidential garments, and citing government authorities such as, "Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response," it may become easier to assert, with justification, that the grant of a national-interest exception to the bans will "facilitate the immediate and continued economic recovery of the United States."
- Local Hero. Perhaps the most promising visa category under which to consider requesting a national-interest exception based on economic urgency is the L-1 visa category for intracompany transferees. These noncitizens must have at least one year of full time prior employment abroad in a multinational enterprise as a manager, executive or employee with specialized knowledge. This is because U.S. workers' employment prospects are likely not reality-based if they think they could possibly replace an L-1 intracompany transferee. U.S. workers simply lack the requisite "insider" experience. I elaborated on the point in a June 23 interview with Immigration Law 360 Reporter, Suzanne Monyak:
'It boggles the mind to think that the expertise and sophistication of executives and managers, who have been employed by [a multinational] organization, and the specialized knowledge of essential workers with that level of expertise, can be replaced by a U.S. worker,' said Angelo Paparelli . . . . 'No amount of education can substitute for that level of internal experience.'
To enhance the L-1 quest for a national-interest exception, applicants should note that the June Bans did not prohibit the entry of E-1 or E-2 visa holders even though they enter the U.S. in positions comparable to L-1s as executives, supervisors or essential-skills personnel, do not require one year of prior experience, and the entities that would employ them cannot even be owned by American citizens (who lack treaty-country nationality) or U.S. lawful permanent residents (with the same treaty-protected nationality [see 9 FAM 402.9-4(B)e]). Stated differently, E-1 and E-2 entrants presumably do not undermine the U.S. economy and they apparently "facilitate [America's] immediate and continued economic recovery" (or they would have been included in the ban), but — counter-factually — L-1 visa holders somehow threaten our economic well-being, even though they are often owned and operated by Americans and employ U.S. workers.
- Capitalism: A Love Story. H-1B nonimmigrants may also establish a factual basis for a national-interest exemption on economic grounds. Their justifications of enhanced job creation and entrepreneurship would be based on abundant evidence (" Don't Ban H-1B Workers: They Are Worth Their Weight in Innovation"). J-1 nonimmigrants who come here as interns, trainees, teachers, camp counselors, au pairs, or summer work travelers (and heretofore had not been banned) often liked what they saw, and – as immigration lawyers can attest – then returned as H-1B workers or budding entrepreneurs. Both the H-1B and J-1 categories can assert an economic claim of comparable merit to EB-5 immigrant investors who must directly or indirectly create jobs based on economic modeling (but are not subject to the June bans) or international entrepreneurial parolees who likewise are not banned, and whose legal eligibility remains on the books based on a federal court ruling against the Trump Administration in National Venture Capital Association v. Duke). Similarly, U.S. employers of H-2B workers who fill temporary or seasonal needs should be able present a justifiable claim of entitlement to a national interest exception on economic grounds. A labor market test would have been required to qualify in this category (and no qualified U.S. worker would have been found, or else the H-2B visa petition would be denied).
In short, to the degree that economic imperatives must be established to gain a national-interest exception (the economy, after all, is the ostensible raison d'être for the bans), then the underlying economic justifications that caused Congress to create these work visa categories are surely relevant.
Moreover, the immigrant visa ban and the June bans squarely raise the issue of whether these proclamations conflict with the INA (an issue undecided in Trump v. Hawaii). That conflict is litigation fodder, as is the asserted conflict acknowledged in Pars Equality between agency actions in administering the requests for exceptions to the bans and the requirements of the INA and immigration regulations. These ripe and tasty "litigable" issues are reason enough to request national interest exceptions on economic grounds (over and above the chance that the exceptions will be approved).
* * *
In my interview with Suzanne Monyak, I predicted that the entry bans will be as ineffectual as medieval medicine:
[If] international companies decide the restrictions aren't worth it and take their business outside the U.S., it could result in fewer, not more, jobs for Americans. Paparelli compared the proclamation to attempting to solve the U.S.' current economic woes with the medieval practice of bloodletting. 'While other countries are making their destinations more attractive, we're basically pushing people out,' he said. 'And if that won't affect U.S. workers adversely, I don't know what will.'
As I reflect on it, however, the bans ultimately call to mind the Black Knight's sword-fighting scene with King Arthur in Monty Python and the Holy Grail. And, if national-interest exception requests based on economic grounds ultimately prevail, perhaps we can then say, with no sense of irony (but maybe just a smile), "'tis but a scratch."
Originally published 07 July, 2020
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