This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh, Fredrikson Immigration Department Chair, is a member.
The Department of State (DOS) released a cable to the field with revised guidance implementing a court order issued on November 18, 2020, in National Association of Manufacturers v. Department of Homeland Security. The revised DOS guidance clarified the court's October 1, 2020, order enjoining the government from enforcing a Trump administration ban on H, L and J nonimmigrants under section 2 of Presidential Proclamation 10052. Applicants are now considered covered by the NAM court's order as long as the petitioner or sponsoring entity is a member of one of the named plaintiff associations at the time of adjudication. The court further ordered that DOS "treat visa applicants covered by the injunction no less favorably than any other nonimmigrant visa applicant." The DOS guidance states that posts should extend the national interest exceptions under the proclamation to applicants covered by the injunction where regional COVID-19-related proclamations are in effect.
DOS said that an applicant is now considered covered by the NAM court order "if the applicant's petitioner, sponsor, or host organization (for J-1 visas) is either one of the named plaintiffs or a member of one of the named plaintiff associations as of the time of interview."
DOS said posts should continue to treat "petition-based work visas (including H's and L's) as Tier 2 (second only to cases involving humanitarian emergencies, applicants contributing to COVID-19 eradication, diplomatic visas which do not require in person appointments, etc.)." To comply with the order, "J-1 intern, trainee, teacher, camp counselor, au pair, or summer work travel program applicants should be considered Tier 2, as well."
An appeal of the October 1, 2020, injunction is pending.
