Status of Current Challenges to Presidential Proclamations

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Status of Current Challenges to Presidential Proclamations

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On April 22, 2020 and June 22, 2020 President Trump signed two Presidential Proclamations suspending the entry of certain immigrants, those applying for permanent residence, and nonimmigrants, those coming to the United States temporarily for work.  These Proclamations have had massive impacts on the lives of, quite literally, hundreds of thousands of individuals, and as a result, several large-scale challenges to these proclamations have been made.  Here is the current state of just a few major lawsuits challenging the proclamation:

Challenging the Proclamations as a Whole:

The American Immigration Lawyers Association (AILA), in conjunction with the Justice Action Center, Innovation Law Lab, and Mayer Brown LLP has taken on the Herculean task of challenging the entirety of the Presidential Proclamations as unlawful in the case Gomez, et al. v. Trump, et al.  While the case initially challenged the April 22nd proclamation alone, on July 17, 2020, AILA and their partners amended their complaint to challenge the additional bans found in the June 22 proclamation.  In conjunction with the massive complaint spanning over 100 pages, on July 31st AILA and their partners filed a motion for a Preliminary Injunction seeking to block the implementation of the Proclamations entirely.

Challenge as it applies to Diversity Visas:

Individuals selected for a Diversity Visa face a unique challenge that other immigrants impacted by the proclamation do not.  By law, without being issued their immigrant visa by a consulate prior to September 30th, the end of the Fiscal Year, they permanently lose their ability to receive their immigrant visa, and thus their green card, through their selection in the Diversity Visa lottery.  As such, two major lawsuits have been filed seeking expedited relief for these individuals.  These are Mohammed, et al. v. Trump, et al., filed by the Law Office of Curt Morrison and the Law Office of Rafael Urena, and Aker et al. v. Trump, et al., filed by Kuck Baxter Immigration, LLC, Siskind Susser PC, and your very own Joseph & Hall, P.C.

Motions for Temporary Restraining Orders and Preliminary Injunctions have been filed in both cases, and while rulings have not been made on these motions at the time of this writing, the cases are rapidly developing, and given that less than two months remain before those who have been selected for Diversity Visas in Fiscal Year 2020 lose their ability to immigrate, a decision should be forthcoming quickly.

Challenge as it applies to H-1B Visas:

One final case to watch is filed by the law firm Wasden Banias, LLC, which just a few months ago won a major victory for H-1B holders and employers in the case ITSERVE Alliance v. Cissna.  Defending the rights of businesses and high skilled workers once again in the case Panda, et al. v. Wolf et al., Wasden Banias, LLC has also, on July 15, 2020, filed for a preliminary injunction to prevent the government from applying the Proclamation in the adjudication of H-1B and H-4 visa applications.  As of the time of this writing the Motion for a Preliminary Injunction remains pending, but the parties have been ordered to attend a conference with the judge in early August, and a ruling on the Preliminary Injunction should soon follow.

Overall, Judges are now faced with motions for injunctions requesting immediate relief for immigrants and nonimmigrants in a wide range of currently banned categories.  Relief has not yet been granted in the above cases, and the cases listed are far from the only challenges to the Proclamations, but the massive backlash from businesses, law firms, and major legal organizations should give those impacted by the proclamation some hope that the overbroad restrictions will be short lived.

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