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IMMIGRATION JANUARY 08, 2021 | The Indian Eye 40
extending the immigrant and nonimmigrant visa Bans:
the last Gasps of 212(f) Jurisprudence under trump
cyrus d. mehta & green card applications, pandemic, and a desire on Biden the unpleasant 212(f). Id. at 10. The Ninth
and restricts some nonim- to preserve as many jobs choice of rescinding the Circuit rejected this ar-
kaitlyn BOx*
migrant visa categories. as possible for American Proclamation come Jan- gument and upheld the
Proclamation 10052 of workers. This reasoning uary 20, likely to be a po- healthcare proclamation,
n the last day
of 2020, Trump June 22, 2020, itself an ex- stands in sharp contrast to litically unpalatable move citing to Trump v. Hawaii
pansion of Proclamation Trump’s recent boast that given that unemployment in stating that INA § 212(f)
Oissued a Pres- 10014, curtailed the entry unemployment rates have rates will probably remain grants the President broad
idential Proclamation of individuals who were fallen below 6.7%. It ap- high in the coming months discretion to restrict entry.
extending two previous
Proclamations – Procla- outside the United States pears that the Proclama- as the pandemic drags on, Id. at 22; Trump v. Ha-
mation 10014 (Suspension without a visa or other im- tion is actually the Trump or letting the Proclamation waii, 138 S. Ct. 2392, 2407
of Entry of Immigrants migration document on administration’s last effort expire on its own on March (2018). The court rea-
Who Present a Risk to the the effective date of the at restricting the immi- 31, 2021. Regardless of soned that INA § 212(f)
proclamation and were gration of highly skilled which strategy the Biden limits the President’s au-
United States Labor Mar- seeking to obtain an H-1B workers before Presi- administration chooses to thority in three ways – the
ket During the Economic visa, H-2B visa, L visa or dent-elect Biden takes of- pursue, would-be immi- President must find that
Recovery Following the
2019 Novel Coronavirus certain categories of the fice in January. The exten- grants and highly-skilled entry of a certain class of
Outbreak) and Proclama- J visa. Our previous blog sions continue to rely on foreign workers can take immigrants is detrimental
tion 10052 (Suspension discusses Proclamation INA 212(f), which gives comfort in the fact that the to U.S. interests, the lim-
of Entry of Immigrants 10052 in detail. the president broad pow- Proclamation will be rela- itations on entry imposed
Trump’s latest Proc- er to suspend the entry of tively short lived.
and Nonimmigrants Who lamation extends the re- foreign nationals whose must be “temporally lim-
If the Biden adminis- ited”, and the President
Present a Risk to the Unit- strictions imposed by the entry would be detrimen- tration chooses to rescind must properly identify the
ed States Labor Market
During the Economic previous Proclamations to tal to the interests of the the proclamations before “class of aliens” who are
Recovery Following the March 31, 2021. The ad- US. While invoking INA March 31, they must be subject to the restrictions.
2019 Novel Coronavirus ministration’s stated ratio- 212(f), Trump has invent- mindful of a recent Ninth John Doe #1 v. Trump at
Outbreak). Proclamation nale for the Proclamation ed new law regarding visa Circuit decision which has *22-26. The Ninth Circuit
is high unemployment categories outside what also upheld the Trump ad- also indicated that anoth-
10014, signed in April due to the COVID-19 Congress enacted through ministration’s invocation er potential limitation is
2020, suspends certain
the Immigration and Na- of 212(f), this time as the that a proclamation may
tionality Act. Trump relied authority for Presidential not “expressly override”
on INA 212(f) to issue the Proclamation 9945, “Sus- a provision of the INA,
various iterations of the pension of Entry of Im- which may exist where the
travel ban and Presidential migrants Who Will Finan- statute solves the “exact
Proclamation 9822, which cially Burden the United problem” as the procla-
banned individuals who States Healthcare System, mation. Thus, even if the
cross the Southern bor- in Order to Protect the healthcare proclamation
der between ports of entry Availability of Healthcare overlapped with the public
from applying for asylum Benefits for Americans.”, charge ground of inadmis-
in the United States, to which barred immigrant sibility at INA 212(a)(4),
cite only a few examples. visa applicants for en- the imposition of an addi-
Another example where tering the United States tional ground of inadmis-
the Trump administration unless they could demon- sibility via INA 212(f) will
invented the law, as dis- strate the ability to acquire not be viewed as the proc-
cussed in a prior blog, was health insurance within lamation overriding the
in the exceptions to Proc- 30 days of entry or pay for public charge provision.
lamation 10052. One ex- healthcare expenses on Finding that Proclamation
m of ception can be availed of their own. John Doe #1 9945 did not exceed any of
CYRUS D. MEHTA & PARTNERS PLLC by showing that the H-1B v. Trump, No. 19-36020, these limitations, the court
worker is being paid 15% D.C. No. 3:19-cv-1743- upheld it as a valid exercise
over the prevailing wage. SI, *1-2 (9th Cir. 2020). of the President’s authori-
The additional wage re- In Doe #1 v. Trump, the ty under INA § 212(f). Id.
quirement is entirely ab- plaintiffs alleged, among at *26.
sent from the INA. other causes of action, The Ninth Circuit’s de-
Like planting a time that Proclamation 9945 cision in Doe #1 v. Trump
bomb, the Trump ad- exceeded the President’s may, unfortunately, make
2 6th Floor
ministration has foisted authority under INA § it more difficult to chal-
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