Thread by @gsiskind

Warning - About to post a 50+ threaded tweet summarizing the @ailanational suit challenging the 4/22 and 6/22 travel bans that aim to shut down immigration to the US. It's a 100+ page complaint so there's a lot to cover.

525,000 people impacted by WH estimate. Approximately 20,000 employers impacted. 2

The Proclamation is part of a series of measures intended to shut down congressionally authorized immigration to the US. References reduction of refugee admissions & coming furlough. 3

Forgot to mention the case is Gomez v. Trump. Same name as the 4/25 suit because this is an amendment. Same judge and court (DC District). 3.1

With the new ban (an extension on the 4/22 one), Trump has indefinitely separated families, thrown the business plans of US firms into chaos, limited visa categories allowing 100s of 1000s of people to live and work in the US and rejected decades of Congressional judgment. 4

Trump bases the bans on “the extraordinary economic disruptions caused by the COVID-19 outbreak” & by a need to “protect unemployed Americans from the threat of competition for scarce jobs” by foreign nationals. Trump leaves open the door to indefinite extensions. 5

The bans rest on a fatally flawed assumption – that jobs are a zero-sum game with each immigrant displacing one US worker. Congress has rejected this premise and so has the overwhelming economic research that associates more immigration with more US workers' jobs. 6

The ban also bars many people who won’t even be in the work force. And these people won’t be using their purchasing power which means there will be a bet loss in jobs for US workers. 7

The WH estimates 525,000 workers will be prevented from entering. Aside from hurting the economy, the bans separate families, a bedrock of the US immigration system. 8

The ban hurts other groups. Workers who have been working for years in the US caught without notice overseas and unable to reenter. DV winners who will lose out on their once in a lifetime opportunity if they don’t complete processing by 9/30. Separated families. 9

The infliction of these harms is egregious considering Congress already weighed & rejected these proposals. The June ban seeks to rewrite immigration law, imposing harsh new restrictions that Congress has rejected and which are contrary to the Immigration and Nationality Act. 10

The court has the authority to review based on the Administrative Procedure Act and the Due Process Clause of the 5th Amendment. Plaintiffs are requesting the court enjoin the Proclamation in its entirety. In other words, this is for everyone, not just the plaintiffs. 11

AILA next sets out the reasons the DC District Court has jurisdiction. I don’t think this will be a serious issue of contention in this case. 12

The next part of this case is setting out a description of each plaintiff. There are dozens listed. Many more may be added if AILA amends the suit (which is possible). The good news is that even if the government tries to moot out people, there’s a long list of people to add. 13

Some of the plaintiffs include

-A green card holder who is an essential worker and whose wife is a 2nd preference family immigrant visa applicant
-A green card holder sponsoring her husband. She is pregnant
-A green card holder sponsoring his minor children 14

-US citizens sponsoring parents, children and siblings
-A green card holder sponsoring her unmarried minor son
-DV winners 15

-A transportation company in New Jersey that sponsors H-1Bs and L-1s
-A tech company sponsoring H-1Bs
-Nonprofit J-1 exchange programs for interns an au pairs
-A manufacturer employing L-1s 16

-A landscape contractor in in Michigan who sponsors H-2Bs
-The Committee of Interns and Legal Residents-SEIU, a labor union that represents physicians at America’s teaching hospitals 17

The Defendants are Donald Trump, William Barr, Mike Pompeo and the Department of State and Chad Wolf and the Department of Homeland Security. 18

The suit then recites the factual allegations. This section reviews all of the sections of law concerning the impacted visa categories the EO is ignoring – family and employment based green cards, DVs, and the various impacted nonimmigrant visa categories – Hs, Ls and Js. 19

The suit then gives background on both the April and June bans including how the State Department has implemented them (including citing various @travelgov tweets). 20

The suit mentions a DHS website announcement saying the Proclamation directs it “to use all available tools to transition to a merit-based immigration system.” Congress has passed no law that would change the nature of how visas are allocated under the system it created. 21

Now for the legal arguments. The Proclamation Conflicts with Congressional Policy & Its Own Stated Goals. 22

All established economic research contradicts the Proclamations’ stated economic goals. “Indeed, they appear to have been created out of whole cloth and without any consideration of the issues.” 23

The premise of the 6/22 EO rests on a flawed premise – that the bans protect US workers because foreign-born workers displace and disadvantage US workers during periods of high unemployment. Decades of economic research discredit this fallacy. 24

Congress agrees that immigration is not a zero-sum game. Immigrants expand job opportunities and create jobs through innovation, entrepreneurship and spending money. Immigrants complement US workers and don’t compete with them and they stimulate the economy. 25

Congress has three times in the past four years refused invitations to curtail legal immigration. 26

The Proclamation actually hinders recovery of both the economy and the labor market. Barring immigrants will make the economy less productive. 27

There are other reasons the Proclamation is irrational. The ban suspends visa issuance for 1000s of people who cannot and won’t seek employment in the US. This includes kids, the elderly, retiree, the disabled, students and nonimmigrant spouses not permitted to work 28

It also bans people who, as a precondition for approval (e.g. PERM, H-2B), had to go through a labor market test to show a lack of available US workers. Same for J-1 summer workers and trainee/interns since employer must certify hiring doesn’t displace US workers. 29

H-1Bs and L-1s play critical roles in job preservation and creation and actually alleviate the effects of “the extraordinary economic disruptions caused by the COVID-19 outbreak.” Many are IT professionals playing a key role in helping the US workforce work remotely. 30

Many H-1Bs are patenting new technologies and barring them denies US companies opportunities to grow and forces companies to offshore US jobs to countries where they are able to hire skilled foreign workers (like Canada). 31

Many of the fields where H-1Bs are working are in fields with very low unemployment. Total employment in the US in top 20 occupations being filled by H-1B workers (85% of all H-1Bs) actually increased by 185K from 1/20 to 5/20. 32

The US unemployment rate for IT occupations used by 66% of H-1B workers was 2.8% in April & 76% of H-1B workers are in fields with low unemployment. Hence, the Proclamation does the opposite of what it is purported to do. 33

The Proclamation is similarly irrational for the Ls which are issued to managers, executive and specialized knowledge employees of multinational companies. These are not fungible workers where Americans can just step in. 34

These positions are critical for job creation in the US because foreign firms require critical on-the-ground leadership. Note – I can’t imagine a foreign company feeling comfortable operating a major operation in the US without assurances their key people will be banned. 35

The complaint now moves on to discussing harms being suffered by the plaintiffs. 540K individuals and 20K employers impacted. Harms suffered by families separated and employers that are economically damaged. 36

The complaint then moves on to harms suffered by DV lottery winners. Some of the plaintiffs are in that category. Some have been applying for many years unsuccessfully, are in health care occupations, are entrepreneurs, are highly educated and highly skilled. 37

Then a discussion of harms faced by family-based immigrants is discussed. One of the plaintiffs is an essential employee in food distribution married to a woman just accepted to an Ivy League school. The couple has been separated 2 ½ years. 38

Another is a dad separated from his kids while his mother in the home country cares for them. Obviously, there’s zero benefit to US workers if they are barred from coming. Or any kids for that matter. 39

Then there is a discussion of harms based on the H-1B, J-1 and L-1 bans. The economic harms to a plaintiff who hires L-1As as well an employer of H-2Bs are explained. Then an H-1B employer, an H-1B worker and the union representing doctors in residency programs. 40

Important – the plaintiffs are requesting class certification including four sub-classes – DV winners, parents of adult US citizens, family preference green card applicants and employers and employees using the H-1B, H-2B, J-1 or L-1 categories. Basically everyone. 41

Noting that there are 525,000 impacted people so this is the most practical way to handle and the class members have common issues in law and fact with the named plaintiffs. Plus, it’s easy for the govt to figure out who the members of the class are. 42

Cause of Action 1 – Violation of the APA Sect. 706(2) – DOS is preventing the issuance of visas for Plaintiffs who are eligible. 212(f) bars entry and not the issuance of visas. DOS failed to consider all relevant facts and circumstances and gives no rational explanation. 43

DOS implementation is arbitrary, capricious and an abuse of discretion in violation of APA Section 706(2). Also contrary to constitutional right, power, privilege or immunity because it denies family members their protected right to family unity without due process. 44

Cause of Action 2 – Violation of APA Section 706(2). The national interest exceptions violate the APA. No standards have been announced nor policies & procedures. If they have, they’re reviewable as final agency action and are arbitrary, capricious & abuse discretion: 45

-A) Defendants actions are based on legal error, failed to consider relevant factors, or are contrary to the Proclamation and lack a rational explanation especially in light of reliance interests. Therefore – arbitrary, capricious and abuse of discretion. 46

-B) Plaintiffs constitutional rights not to be deprived of their liberty interest in family reunification and rights to petition for visas for family members without due process. 47

Cause of Action 3 – Ultra Vires – Violation of INA Section 212(f). Congress has created the system for consular officers to issue visas. 212(f) doesn’t permit the ban on issuing visas – just entry. 48

Cause of Action 4 – Ultra Vires – Violation of INA Section 212(f). Pres must find the entry to be “detrimental” to the interests of US. No findings provided by Pres & statements which Proclamation relies on not supported by evidence & are unreasonable. 49

Cause of Action 5 – Ultra Vires– DV subclass –INA says DV winners remain eligible to receive a visa only through end of fiscal year (9/30). Pres isn’t authorized to override provisions of INA via 212(f). The Proc renders void peoples’ statutorily guaranteed eligibility. 50

Cause of Action 6 – Separation of Powers/Nondelegation Doctrine – Constitution gives Congress the power to “establish a uniform Rule of Naturalization” and to “exclude aliens” or “prescribe terms” upon which they may come to the US. 51

Congress has crafted a complex & balanced system of visas & considered the effects on the US economy. Labor market protections are built in. They haven’t delegated this to the Pres. Doe v. Trump says 212(f) can’t be used by Pres to address wholly domestic matters (This KEY). 52

Cause of Action 7 – Violation of Due Process Clause of the 5th Amendment – US citizens and lawful permanent residents have a constitutionally protected liberty interest in family unity and are entitled to due process. 53

Prayer for Relief –

-A national injunction shutting down both the 4/22 and 6/22 bans.
-A declaration the bans are unlawful and set aside AND 54

-An order setting aside the agencies’ implementation of the bans and compelling them to set up policies/procedures for national interest exceptions
-Attorney fees and expenses
-Other relief the court deems just 55

[THE END]