This is a summary of National Association of Manufacturers v DHS, the 5th visa ban case to be filed. Other plaintiffs include the US Chamber of Commerce, the National Retail Federation, TECHNET and Intrax. 1

The case is filed in the US District Court for the Northern District of California. The other four cases are in the DC District. Glad this case is filed elsewhere. A little risky otherwise. 2

The focus of this case is, obviously, how the business sector is impacted by the bans & the negative impact we’ll see on innovation. Relying on INA Section 212(f), the Proclamation effectively repeals entire visa categories of temporary workers – more than 500K this year alone. 3

The purpose is to “clear out this workspace for US workers.” “The Proclamation takes a sledgehammer to the statutes Congress enacted with respect to high-skilled and temporary worker immigration.” Trump doesn’t have the authority to nullify duly enacted statutory provisions. 4

The actions are facially arbitrary and lack a rational connection to the problem identified. The Proclamation failed to take into account the central facets of the problem. 5

Demand for labor in many sectors is extremely high because of the pandemic (e.g. communication technology and healthcare). Computer-related occupations are at historically low unemployment RIGHT NOW. 6

The ban also bars categories of people – including children and spouses not permitted to work – who have no bearing on unemployment in the US. 7

There are many types of harms to business. Employees with special expertise are barred and this reduces US operations which also reduces jobs for US workers. 8

Some companies are furloughing/laying off US workers because they’ve suspended operations depending on temporary workers (includes plaintiff Intrax). 9

Other countries are taking the best talent while US companies are handicapped by the bans. 10

Next up is a discussion of who each party is and then jurisdiction and venue. I’ll skip summarizing as I don’t think it will add much. Except to say that Intrax is headquartered in San Francisco which makes the jurisdiction claim strong. 11

The plaintiffs then summarize the non-immigrant categories in the 6/22 ban and explain INA Section 212(f) which allows the President to bar the entry of people deemed to be detrimental to the US. 12

Now for a recitation of the facts. A discussion of the long-term problems companies are having filling certain positions with US workers and bringing in key workers from abroad actually has the net effect of creating jobs for US-born workers. A number of studies are cited. 13

From 2010 to 2015, foreign STEM workers in the US generated an estimated benefit of $103B for US workers. Also, patenting per capita goes up the more high-skilled immigrants you have. 14

L-1s are key for expanding international business in the US and there is no correlation with hiring US workers and L-1s being in the US. 15

J-1s are a key tool for diplomacy. 1 in 3 current world leaders are alumni of State Dept cultural exchange programs (wow). It positively shapes perceptions of the US. J-1s also help grow local economies (particularly summer workers and camp counselors). 16

J-1 au pairs critical for families with children forced to stay at home because of COVID. 17

The spike in unemployment we’ve seen since February is not in occupations covered by the affected categories of visas. For example, computer unemployment has actually decreased from 2.8% in April 2020 to 2.5% in May 2020 and 2/3 of H-1Bs are in those fields. 18

There are 630K active job vacancies right now in common computer occupations. 19

The Proclamation cites three supposed data points. A) 17M US jobs lost between Feb & April in jobs filled by H-2Bs, B) 20M in US workers lost their jobs in industries filled by H-1Bs & L-1s & the unemployment rate for young people is high & they compete with J-1 workers. 20

The WH is claiming the Proclamation will free up jobs for 525K US workers. But hiring practices will dramatically change in a negative way. For example, L-1s are a central tool for multinational companies to move global talent around. The ban harms these companies. 21

Because employment is durable, the employment decisions made during this period will have lasting & irreparable effects. Talent that picks overseas companies will be with those other companies for years, meaning US employers will pay for a long time. 22

Companies will have lost huge sums spent on recruiting as well as legal compliance. 23

Many companies chose to invest in R&D & in building manufacturing plants in the US on the base of relying on having access to foreign talent. And the ban is causing products to be delayed, services being less resilient and a lack of technological advancement. 24

Rather than protect US jobs, the restrictions will encourage companies to move high skilled roles to Canada. It’s the Canadian Jobs Creation Act. And the US needs these workers to recover from COVID. 25

Now a discussion of H-2Bs. There were no H-2B plaintiffs in the @AILANational case so this is welcome. Plaintiffs noting that H-2Bs go through a rigorous labor certification process to ensure US workers are not passed over. 26

The national interest exceptions don’t cure the harms. They’re narrow & don’t cover vast majority of workers. Only a small fraction of L-1s are covered. & businesses can’t plan around needing natl interest exceptions. Too unpredictable. Doctors are already experiencing this. 27

BTW, kudos to @dlind whose recent pro publica story on doctors is cited. 28

The Proclamation is Arbitrary and Capricious, it Fails to Address Several Critical Aspects of the Problem at Issue and it Fails to Take Account of Essential Evidence. 29

The application of the ban to spouses and kids is noted. How does a 7-year-old impact the US labor market. The area of the economy most impacted has super-low unemployment. US workers don’t have the knowledge & expertise to replace L-1 executives/managers. 30

This is all a pretext. Trump wanted to suspend foreign workers long before COVID. Citing to NY Times story where Stephen Miller was bragging about the master plan. The Proclamation fails to show how it will solve the problem cited and ignores the overwhelming evidence. 31

It ignores the reliance interests that companies have placed when choosing where to site their facilities and structure their operations. [side note – this is the first of the complaints to make this argument.]. Also, employees have relied on an operational visa system. 32

CLAIMS – COUNT I – The Proclamation Exceeds the Authority of the Executive Branch. Cites Hawaii v. Trump, the Sup Court case saying that 212(f) doesn’t allow the President to nullify Congress’s considered judgments on matters of immigration. 33

The Proclamation addresses a purely domestic economic policy problem but the recent 9th Cir case of Doe #1 v. Trump says 212(f)’s powers are limited to foreign policy interests. BTW – this case is in the 9th Circuit so this is a very strong argument. 34

The Proclamation bars visa issuance but 212(f) is limited to entry bars. That exceeds the statute. Reliance interests are ignored. Evidence is ignored. No rational fit between the problem identified and the action taken. 35

COUNT II – Violation of the Administrative Procedure Act; Focuses on the Proclamation being “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 1st, it stops the issuance of visas, something not authorized by 212(f). That just bars entries. 36

Congress’s statutes calibrate labor market protections & the Proc is inconsistent with that intent. The “solution” isn’t rationally related to the problem. The categories aren’t in high unemployment sectors, include people not eligible to work, & won’t result in net new jobs.37

The Proclamation reflects a change in position disregarding without reasoned explanation the substantial economic and other reliance interests in the status quo. It ignored critically important considerations like actual impact on net employment and the reliance of employers. 38

Prayer for relief – declaration the Proclamation is in excess of Trump’s lawful authority; enjoin the visa ban, vacate it and set it aside, award attorney’s fees and costs and award plaintiffs any other relief deemed just. 39

This is another strong case. No surprise given my friend @PaulWHughes at McDermott Will and Emery is the lawyer. I got to know him in the entrepreneur parole litigation. He’s argued a lot of really important immigration cases over the years. 40

So that's it for this one. I'll update you on this and the other four lawsuits as there is news. END OF THREAD 41