Class Action Can Help First-Time Hs, Ls, and Js Overcome Presidential Proclamation

A class action filed by the National Association of Manufacturers (NAM) may provide relief for H, L, and J applicants who would not otherwise be able to apply for a visa at a consulate abroad. The suit was filed in response to Presidential Proclamation 10052 (6/22/20, amended 6/29/20), which suspended entry of nonimmigrants in the following categories: H-1B, H-2B, J (for aliens participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program), and L, along with their spouses and children. NAM, joined by several prominent business organizations filed suit in federal court opposing the proclamation and was successful; the court enjoined enforcement.

Thus, if a petitioner of a J-1, H-1B, H-2B, or L-1 is a member of any of the following organizations that joined the NAM lawsuit, the beneficiary will not be subject to the proclamation’s entry restrictions:

• the National Association of Manufacturers,
• the U.S. Chamber of Commerce,
• the National Retail Federation,
• TechNet, and
• Intrax, Inc.

Companies can take advantage of this lawsuit by becoming a member of one of the above organizations, if they are not already. In the case of J-1 applicants, they should be prepared to demonstrate, at the time of the consular interview, that the J-1 program is sponsored by an entity that is a named plaintiff, or a member of one of the named plaintiff organizations. Intrax is a named plaintiff in NAM and is a sponsoring entity for certain J-1 programs, but any J-1 applicants who are sponsored by an entity other than Intrax or who claim the host organization employer is a named plaintiff or member of named plaintiffs’ association, and who believe they are covered by the NAM court’s order, should raise that with the consular officer at the time of visa interview.

With regard to H-1B, H-2B, and L-1 applications, they must be prepared to demonstrate that a U.S. employer/petitioner is a named plaintiff or member of any of the named plaintiff associations. Applicants may provide evidence — such as a letter issued by one of the named plaintiffs to the applicant’s petitioner attesting that the petitioner is a member in good standing of one of the named plaintiff associations — directly to the consular officer at the time of visa interview.

The NAM court’s order also enjoined the government from enforcing section 2 of Presidential Proclamation, which extended entry restrictions to H-4, J-2, and L-2 applicants who would accompany or follow to join the principal H-1B, H-2B, J-1, or L-1 applicants. Accordingly, consular officers will not apply the restrictions to these derivative applicants if the principal applicant is covered by the NAM court’s order.

However, posts with reduced services due to local conditions and available resources, may not be able to routinely process H, L, or J visa applications. However, at those posts, H, L, and J visa applicants may request emergency appointments following the guidance provided on posts’ websites. The Proclamation is not considered as a factor when posts review requests for emergency appointments.