Visa Lawyer Blog
It’s been just a few days since President Trump signed his long awaited executive order entitled, “Proclamation Suspending the Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” and already it is being challenged in federal court.
On April 25, 2020, the first of what is sure to be many lawsuits, Doe v. Trump, was filed in the United States District Court for the District of Oregon challenging the President’s new executive order.
The lawsuit was filed by several individuals and the organization Latino Network against President Trump and the federal government.
Plaintiffs in this case have filed an emergency motion for a temporary restraining order to block the government from enforcing the new executive order, because the executive order does not contain exceptions that preserve the opportunity to request urgent or emergency services for immigrant visa applicants, including for children of immigrants who are at risk of aging out of their current visa eligibility status “by the simple passage of time.”
The lawsuit is concerned specifically with children who are in danger of aging out of their place in the visa queue because they do not have access to emergency services that would have otherwise been available had the proclamation not been issued.
“Without access to such emergency services, children whose underage preference relative status will result in unnecessary and prolonged family separation “for years—or even decades,” the lawsuit says.
What is a temporary restraining order?
A temporary restraining order is a short-term court order that requires the defendant in a case to cease a specific action. A temporary restraining order can be issued by a judge early on in a lawsuit to stop the defendant from engaging in or continuing harmful actions. Choosing whether to grant a temporary injunction is up to the court’s discretion.
A temporary restraining order can be extended by filing a preliminary injunction, which is a court order preventing the defendant from acting to preserve the status quo pending a final ruling in the lawsuit. In this case in particular, plaintiffs ask the court to grant a temporary restraining order for 21 days, to be extended by a preliminary injunction.
What does the lawsuit say?
The lawsuit challenges the Proclamation on the basis that it harms children of lawful permanent residents who need access to previously available emergency and urgent consular processing services to prevent the loss of their immigrant preference status—and their place in the visa queue.
The Immigration and Nationality Act (INA) defines a child as a person who is both unmarried and under 21 years old. If someone applies for lawful permanent resident (LPR) status as a child but turns 21 before being approved for LPR status (also known as getting a Green Card), that person can no longer be considered a child for immigration purposes. This situation is commonly referred to as “aging out” and often means that these applicants would have to file a new petition or application, wait even longer to get a Green Card, or may no longer be eligible for a Green Card.
Under current immigration law, a beneficiary who turns twenty-one before her application is processed or a visa becomes available in her preference category loses her qualifying “child” status (aka “ages out”) and thus becomes ineligible for her preference relative classification.
Before the Proclamation was issued, children who were in danger of “aging out” had the opportunity to seek emergency consular interviews when visas were available to them and the “age-out” would occur to preserve their place in preference category, but all of that changed when the order was passed.
Now children who face an imminent risk of “aging out” of their preference status, are entirely unable to access consular processing and visa adjudication services—meaning that their current visa eligibility will be extinguished.
If an injunction were issued in this lawsuit who would be protected?
An injunction in this lawsuit would stop the government from enforcing the Presidential Proclamation against beneficiaries who need to request emergency and urgent consular processing of their immigrant visa to preserve their place in the visa processing queue and their ability to receive visas under their current preference category.
What about others affected by the order? Would they receive protection?
This lawsuit in particular does not ask for broader protection. It is possible that the judge would use his or her discretion to broaden the protections, although unlikely given that broader protections were not asked for in the lawsuit. However, do not despair, more lawsuits are certain to be filed asking for more broader protections.
What happens next?
The court is in the process of scheduling an emergency oral argument. Once the judge has ruled on the injunction, we will post an update on our blog.
Track the progress of this lawsuit here.
Follow our New Facebook Group for COVID 19 and EO Updates
We have created a new facebook group to address the impact of the executive order and other changing developments related to COVID-19. Follow us there.
For other COVID 19 related immigration updates please visit our Immigration and COVID-19 Resource Center here.
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