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Federal Court Limits Enforcement of Presidential Proclamation 10052 Suspending Entry of Certain Nonimmigrants

6 Oct

On June 22, 2020, President Trump issued Presidential Proclamation 10052, suspending until December 31, 2020, the admission to the United States of most H, J, and L nonimmigrants.  A group of plaintiffs filed suit seeking an injunction against the proclamation, and on October 1, 2020, the Federal District Court for the Northern District of California issued an injunction barring enforcement of Presidential Proclamation 10052 against the plaintiffs and their members. 

The injunction only bars government “from engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance, with respect to the Plaintiffs and the members of the Plaintiff associations.” 
 
Most consulates are scheduling appointments several months out, with very limited appointment availability in 2020.  In order to request an earlier appointment, applicants must request an expedited appointment and meet certain criteria.  Since the return of limited visa processing, the Department of State has generally considered an applicant’s qualification for a National Interest Exception to Presidential Proclamation 10052, as evidence that the applicant also merits an expedited visa appointment.  By indicating the Presidential Proclamation will not be taken into account in connection with requests for expedited visa appointments, it appears that eligibility for a National Interest Exception to that proclamation also will not be taken into account.  Such a move could disadvantage many applicants who would qualify for an NIE but not necessarily for an expedited visa appointment under the traditional criteria for requesting expedites.

Because so few visa appointments are available before Presidential Proclamation 10052 is scheduled to expire on December 31, 2020, and because the injunction does not require the Department of State to make more appointments available or to offer more expedited visa appointments, it is possible that few applicants will benefit from the injunction, even those applicants employed by the plaintiffs. 
 
The government may appeal the injunction, and the injunction could be “stayed,” or halted, pending further litigation.  It is too early to tell whether and when such an appeal might occur; however, given the system for scheduling visa appointments and relative unavailability of such appointments absent approval for expedite, the Government may have limited interest in pursuing appeal. 
 
Foster LLP will continue to monitor developments in connection with the Presidential Proclamations impacting eligibility for admission to the United States and will make future updates available via the Foster LLP website at www.fosterglobal.com