H-1B lawsuit

Major H-1B Lawsuit Challenges Visa Ban

Major U.S. business organizations filed a new H-1B lawsuit challenging a recent Proclamation that blocks foreign nationals from entering the United Sates to work. The organizations claim that the Proclamation “takes a sledgehammer” to the statutes Congress enacted with respect to high-skilled and temporary worker immigration. The Proclamation at issue banned the entry of workers in several key non-immigrant visa categories, including H-1B and L-1, until December 31, 2020.

H-1B status is available to foreign nationals who temporarily perform services in a specialty occupation. A specialty occupation is one that requires theoretical and practical application of a body of highly specialized knowledge and attainment of a bachelor’s or higher degree in the specific specialty. As part of the H-1B application process, employers must obtain an approved labor condition application from the Department of Labor. There is a numerical limitation of H-1B visas available each year.

L-1 status is available to foreign nationals who have been employed abroad continuously for one year by a company and seek to enter the United States temporarily to render services to a company with a qualifying corporate relationship to the foreign company. The foreign national may work in a managerial, executive, or specialized knowledge capacity.

The plaintiffs in the H-1B lawsuit are the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, TechNet and Intrax.

The National Association of Manufacturers is the largest manufacturing association in the United States, representing 14,000 members across every industrial sector and in all 50 states. 54% of Fortune 500 manufacturers are NAM members.The NAM is a 501(c)(6) nonprofit organization headquartered in Washington, D.C.

Established in 1912, the U.S. Chamber of Commerce is the world’s largest business organization representing companies of all sizes across every sector of the economy. It represents approximately 300,000 direct members and indirectly represents the interests of more than 3 million companies and professional organizations. The U.S. Chamber of Commerce is a 501(c)(6) nonprofit organization headquartered in Washington, D.C.

Established in 1911, the National Retail Federation is a retail trade association made up of members from all phases of the retail industry, including department stores, specialty, discount, catalog, internet and independent retailers, restaurant chains and grocers, as well as businesses that supply goods and services to retailers. The NRF is a 501(c)(6) nonprofit organization headquartered in Washington, D.C.

TechNet is a national, bipartisan network of technology CEOs and senior executives that promotes the growth of the innovation economy by advocating a targeted policy agenda at the federal and state level. TechNet represents over 3 million employees and countless customers in the fields of information technology, e-commerce, the sharing and gig economies, advanced energy, cybersecurity, venture capital, and finance. TechNet is a 501(c)(6) nonprofit organization headquartered in Washington, D.C.

Intrax is a premier cultural exchange company that operates multiple Department of State-designated exchange programs that bring participants to the United States on J-1 visas. Intrax is incorporated under the laws of the State of California and has its principal place of business in San Francisco, California.

Plaintiffs filed the H-1B lawsuit in the United States District Court, Northern District of California (San Francisco Division). Plaintiffs allege that Proclamation 10052 inflicts severe economic harm on a wide range of American businesses across all economic sectors and they seek injunctive and declaratory relief. Plaintiffs take the position that American innovation is the foundation of its economy and highly-skilled foreign nationals working in the country is needed to further that innovation. They also point to studies showing that immigration is a net-positive for the employment of American citizens.

COVID-19 has had a dramatic impact on U.S. unemployment. The last two weeks of March saw record numbers of new unemployment filings and the Bureau of Labor Statistics reported a 14.7% total unemployment rate in April. The Administration is taking the position that the Proclamation is necessary to protect American workers during these extraordinary times. According to a June 2020 analysis by the Federal Reserve, the lowest rate of unemployment the economy can sustain is likely between 3.5% and 4.5%.

Silver Immigration will continue to monitor the H-1B lawsuit and provide updates as they occur.