Here are the main lawsuits against the Trump administration that may make or break the fate of Indians working in the US

Over the last six months, the Trump administration has faced no less than five lawsuits against the June 22 proclamation banning the entry of temporary workers like H-1B visa holders. Tech giants, US business organisations and Indian nationals were among those who filed the lawsuits.

This goes with the overall trend seen in the four years under Trump. As on September 9, close to 105 multi-state lawsuits were filed against the Trump administration by Democrat and Republican attorney generals in the US, states a database on attorney general activities in the US. This is much higher, compared to the eight years of Obama.

Joel Yanovich, an immigration attorney from US-based Murthy law firm, in an earlier statement, had told Moneycontrol that the further the Trump administration goes through with regulatory changes, the more vulnerable they are in the court.

The immigration regulatory changes, especially with regards to H-1B visas, the government brought in since 2017, are the best examples.

Here is a look at the lawsuits that affect Indians, the biggest beneficiaries of these visas.

ITServe Alliance vs US Citizenship and Immigration Services (USCIS)

Since 2017, the Trump administration has been trying to restrict H-1B visa applications by issuing more requests for evidence and resorting to rejections. Two memos issued by the USCIS played a key role as they brought in stringent restrictions on H-1B visa petitioners.

This resulted in multiple lawsuits being filed by ITServe Alliance, which represents over 1,000 IT firms. Reports sugges that the agency has filed as many as 30 lawsuits.

The most significant ones, which favoured the H-1B petitioners, were filed on October 2018 and January 2020. The latter sued USCIS for illegally collecting $350 million for H-1B visa processing .

Earlier in October 2018, the agency challenged the rising rejections of H-1B visas based on two memos issued in 2010 and 2018.

The memos mandated sponsors to specify the assignments for H-1B visas for its entire duration. The employers were also asked to provide itinerary for every location they could be probably working at. This resulted in higher denials and shorter duration of H-1B visas.

In a judgement in March 2020, a US court quashed the memos and declared them unlawful. In addition, the court said that the USCIS is mandated to give justification for shorter duration approved for every H-1B visa.

This was a huge win for IT services firms, whose visa costs and subcontractor costs increased over the last couple of years. Immigration experts pointed out that this would result in improved H-1B approval rates since the judgement.

Indians were expected to reap the benefits of the lawsuit.

Indians account for a majority of the 85,000 H-1B visas issued every year. Of the 1.8 lakh H-1B visas renewed/issued, extended in FY19, Indians accounted for about 1.3 lakh.

Caveat: Proposed changes to tighten the H-1B regulation, which is expected in the coming months, could have a negative impact.

H-4 EAD lawsuits

After H-1B visas, the major focus for the Trump administration relates to the H-4 Employment Authorisation Document (EAD) that allows spouses of H-4 visa holders to work in the US.

In 2015, then President Barack Obama brought in a regulation that allowed the educated spouses of H-1B visa holders to work. Here again, Indians were one of the largest beneficiaries. There are over 1 lakh H-4 visa holders, who are Indian nationals in the US, with a significant share eligible to work.

The lawsuit was filed by Save Jobs USA, a tech worker advocacy group, against the Department of Homeland Security (DHS).

The lawsuit, first filed in 2015, was on grounds that H-4 visas increased the competition in the job market, causing damage to American job prospects in the IT sector.

The DHS has argued that there is no proof that Save Jobs USA members suffered losses. On May 2020, the DHS as a US court not to block work authorisation for H-4 visa holders in the US.

The case is still ongoing and so far has been in favour for H-4 visa holders.

Caveat: The Trump administration is working on an agenda that would block work permit for spouses of H-4 visa holders. While COVID-19 has delayed its implementation, the H-4 EAD ban is still on the agenda.

Lawsuits against Optional Practical Training

In July 2019, WashTech, an American tech workers’ coalition, filed a lawsuit challenging OPT that enabled international students in science, technology, engineering and mathematics (STEM) to work in the US temporarily for three years before or after their graduation.

There are about 2 lakh Indian students in the US, a majority of them enrolled in the STEM. A three-year OPT is an attractive proposition for these STEM graduates as they can secure H-1B visas through the same employer after finishing their three-year OPT.

If WashTech wins, it would be a huge blow for international students, for whom OPT is a key criteria for enrolling in US universities. An H-1B visa holder said that without OPT, US universities would lose sheen for two reasons. US’ tech ecosystem is attractive and one of the main reasons to study here is to get a chance to work for tech firms.

In addition, students take an enormous loan to graduate from the US and without a chance for employment, US will not be attractive.

The case is coming up on December 1, 2020.

Lawsuits during COVID-19

The last six months saw at least half a dozen lawsuits being filed the after Trump signed two executive orders banning entry of immigrants into the US.

Of the six, three pertain to Indian nationals against the entry ban of skilled immigrant workers such as H-1B till the end of the year.

One was filed on behalf of 171 H-1B Indian national visa holders and their families against Trump on July 15. The judgement disappointed them as they did not get any relief. A second lawsuit was filed by the US Chamber of Commerce and other trade organisations on July 22. This lawsuit was supported by tech giants such as Microsoft, Facebook and Apple. The judgement on this lawsuit is expected in the coming days.

Another one was filed by Ranjitha Subramanya, an H-4 visa holder, against the USCIS for delays in printing H-4 EAD cards. At the back of COVID-19, the USCIS delayed printing of EAD cards, a necessary document for H-4 visa holders to continue their work. The inordinate delay caused many to lose their jobs.

The US Federal Court has asked the USCIS to print EAD cards in seven days. Since the USCIS had lost the contract with the company that prints the cards due to budgetary issues, the agency relaxed the norms and allowed these H-4 visa holders with the employment approval to work.