Fighting the Government’s Immigration Rules and Decisions in Court: Effective or a Waste of Funds?

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Fighting the Government’s Immigration Rules and Decisions in Court: Effective or a Waste of Funds?

If your foreign employees have been negatively affected by some of the government’s immigration rules and policies, or if an adverse decision was made regarding a petition you filed on behalf of one of your employees, you may wonder if suing the government could be effective as a strategy to overturn the policy or decision.

One recent example of successful litigation shows that it might be. On June 22, 2020, the Trump Administration issued Presidential Proclamation 10052 (“PP 10052”). Section 2 of PP 10052 suspends the entry of H-1B, L-1, H-2B and certain J-1 nonimmigrants to the US through December 31, 2020, unless they fall under one of several enumerated exceptions. Various organizations (including the National Association of Manufacturers, the US Chamber of Commerce, the National Retail Federation, Technet and Intrax) sued the US Department of State (DOS) and the US Department of Homeland Security (DHS) to prevent the application of Section 2. On October 01, 2020, a California Federal Court sided with the plaintiff organizations and enjoined the DOS and DHS from enforcing Section 2 of PP 10052. On November 18, the DOS issued a cable ensuring that consular officers would take into consideration the October 01 decision in the adjudication of visa applications for the employees of said organizations.

While the scope of the decision is limited to the named plaintiffs and their member organizations, it is significant in that it shows that suing the Federal Government with respect to its immigration decisions and policies can be worthwhile. This would be consistent with recent other significant legal victories against DHS, including:

  • December 04: a New York Federal court ordered DHS to fully reinstate the DACA (“Dreamer”) program which had been severely curtailed under the Trump Administration
  • December 03: a California Federal court barred DHS from enforcing its extremely restrictive public charge rule in close to 20 states

Please do not hesitate to contact us if you want to discuss immigration options for your foreign employees and whether litigation could be one of them.