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June 27, 2022

Immigration Litigation: Waging Legal Battle Against Government Actions

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THE SITUATION:

United States immigration policy, already a hot-button issue, attracted particularly intense international scrutiny during the Trump presidency: The administration took a variety of actions over the years to bar people, including foreign workers, from entering the US. In response, a range of institutions and corporations affected by those government actions sought relief in the courtroom.

THE CHALLENGE:

In the run-up to the 2020 presidential election, against the backdrop of the COVID-19 pandemic, President Trump issued a Proclamation banning a swath of more than 200,000 temporary workers from coming into the country. From senior executives transferring to the US on L-2 visas to tech employees with specialized skills entering on H-1B visas—and many others in between—these workers would not be permitted to cross the border into the US, a development that alarmed and outraged the business community.

At around the same time, the administration was also working on a series of regulations to significantly alter the H-1B visa program. Companies use H-1B visas, granted to applicants via an annual lottery system, to hire foreign nationals for positions requiring highly technical skills. While any company employing workers on H-1B visas stood to lose based on the proposed changes, certain industries faced a greater risk because of their heavy reliance on H-1B visas to fill technical or specialized roles for which domestic talent is in short supply. The government's move would aggravate labor shortages in the tech and healthcare industries in the midst of the pandemic.

To challenge the government's actions, several plaintiffs, including the US Chamber of Commerce and the National Association of Manufacturers, turned to a McDermott legal team led by Paul Hughes.

OUR OBJECTIVE:

The team outlined litigation strategies that would 1) allow workers from other countries to continue entering the US, and 2) save the H-1B program. To demonstrate the broad, adverse effects of discontinuing the H-1B program, Paul and the team proactively worked to bring universities across the country into the coalition of plaintiffs.

THE OUTCOME:

In response to Presidential Proclamation 10052, which suspended the issuance of temporary work-based visas, the McDermott team secured a preliminary injunction from the district court. The victory allowed workers to continue entering the US, providing complete relief to clients including the National Association of Manufacturers, the US Chamber of Commerce and the National Retail Federation.

The challenges did not end with the court victory. The team also waged a fierce—and ultimately successful—battle with the Department of Justice, the Department of Homeland Security and the State Department to operationalize the order vacating the regulations, repeatedly going back to court for further enforcement.

Over more than a year of litigation, with no precedent to lean on, the team also used a novel legal argument to convince the court to vacate all four regulations the Trump administration had attempted to put in place to strangle the H-1B visa program. A key piece of the strategy, requiring a great deal of legwork, included bringing six universities into the mix as plaintiffs: Stanford University, Cornell University, the University of Southern California, the California Institute of Technology, the University of Utah and the University of Rochester all signed on because of the McDermott team's efforts.

GO FURTHER:

In addition to pinpointing the right forums for advancing their clients' interests, the team used two hallmarks of the Government and Regulatory Litigation practice to secure the victories:

Creating a high-impact plaintiff coalition: To frame a powerful, sympathetic narrative and create an effective piece of litigation, the team often brings together institutions and corporations with overlapping interests—in the case of the H-1B litigation, universities and technology companies. To avoid focusing entirely on tech, the team proactively sought plaintiffs within the academic community, which also leans on H-1B visas for diverse, highly skilled workforces from outside the US. Because the Universities of Rochester and Utah serve rural areas through their health systems, the team was also able to center some of the litigation story around the specialized healthcare made possible in those communities because of the H-1B program.

Working closely with the media: In addition to their highly skilled, impactful work on the legal side, the team makes a point of developing strong relationships with journalists to disseminate their clients' story to the public in a favorable light. In the H-1B litigation, they curated thoughtful, related stories that would help win the hearts of the press and public, which can influence outcomes in court.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

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