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Explained | Judgment on Trump's visa ban likely this week; what it means for Indian H-1B holders and others

Though US consulates have started issuing visas and some of the restrictions have been eased by the state department, the order will be closely watched for its implications for immigrants in an election year.

August 31, 2020 / 01:59 PM IST

A court in the United States is during this week expected to give its judgment on a bunch of petitions challenging the Trump administration’s temporary ban on work visas, including H-1B that is popular among Indian techies, after the hearing was completed on August 27.

The judgment will be watched closely for its implication for immigration and businesses, coming as it does few months ahead of the November 3 presidential election. 

Seeking a second term, President Donald Trump is expected to double down on the “Make America Great Again” pitch and as the country sees record unemployment because of coronavirus, he is expected to go louder with the “Hire American” call. 

Also read: US visa ban | The worst is not yet over for H-1B visa holders

 What happened?


On June 22, Trump through an executive order banned the entry of foreign nationals into the country till the year-end. This included the entry of non-immigrant workers using H-1B, L-1, J-1 and H-2B visas and their dependents. 

The proclamation also extended the ban on immigration, which meant that people outside the US couldn’t process their green cards. 

The Trump administration had claimed that the work visa ban would free up 525,000 jobs for American workers, a figure that has since been hotly contested. 

On August 12, the state department issues a set of guidelines that eased some of the restrictions and allowed the entry of H-1B or L-1 workers returning to the same jobs they had before the visa ban was announced, into the US, including their dependents, H-4 and L-2 visa holders.

Also read: H-1B visa ban may not make that big a dent in top IT firms' revenues. Here's why

Five lawsuits

Soon, five lawsuits were filed against the ban that were later bunched. Close to 20 attorneys appeared for the petitioners.

Of the five, three lawsuits Mohemmed/Aker/Fonjong vs Trump represented diversity lottery winners. These are green-card lottery winners from countries that have less than 50,000 people in the US. 

Indian H-1B visa holders were represented in the so-called Panda vs Trump plea that not only took up the cause of affected techies but their families as well. Technology giants such as Facebook, Microsoft and Apple backed the petition. 

The Gomez vs Trump plea challenged the decision to suspend the issuance of green cards.

The case was heard in the United States District Court for the District of Columbia by Judge Amit P Mehta.

 What happened during the hearing?

Geoffrey Forney, an attorney representing the H-1B workers, pointed out that the proclamation covered all categories, without even checking if that particular job market was vulnerable or not. 

Most of the H-1B workers are employed in the tech sector that has reported the least number of job losses and has a shortage of talent.

Attorneys also questioned the administration’s move to introduce new eligibility requirements visa renewal. These new guidelines issued by the state department cover the entry of H-1B and other non-immigrant workers. 

They require H-1B visa holders to prove that they indeed contribute to the recovery of the US economy in the post-COVID-19 world. They need to be working in areas such as healthcare, critical infrastructure support or food and agriculture. It is left to the discretion of consular officers to determine if they meet the criteria.

There is also another requirement that these workers be paid 15 percent more than the prevailing wage rate. 

Stuart Anderson, Executive Director, National Foundation for American Policy, an immigration policy think tank, said in his Forbes article that the conditions such as wage rates were not mentioned in the US regulation and could be challenged.

After hearing the arguments, Judge Mehta raised questions about consulates not being open to process visas and the scope of Trump’s presidential authority, reports said.

 What happens now?

Over the last two weeks, consulates began functioning, though in a limited fashion, to process visas. In India, consulates started issuing H-1B renewals from August 17.

However, as Anderson wrote in his Forbes article, this will have no bearing on lawsuits as the recent guidelines can hamper immigrants’ chance to get a visa despite being eligible.

That is why the order, expected this week, will be important. In case the order is not favourable, it can be challenged in a higher court.

If it is positive, it will have to be seen if the judge gives immediate relief to the visa holders by expediting the process or will it allow certain categories to be processed immediately and others the proper procedure. 

Curtis Morrison, an immigration attorney representing one of the cases, said in a video explainer the judge knew of the hardships faced by the plaintiffs. How the judgment will readdress the damage caused by the visa ban remains to be seen.
Swathi Moorthy
first published: Aug 31, 2020 01:59 pm
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