After outgoing US President Donald Trump extended the ban on entry of highly skilled worker visas such as H-1B to March 31, 2021, immigration attorneys had said President-Elect Joe Biden would lift the ban after he assumes charge on January 20, 2021.
Leading up to the US elections, Biden had promised to lift the visa ban imposed under the Trump administration, including H-1Bs.
Of course, recent times have also seen courts grant preliminary injunction to plaintiffs who challenged the Presidential proclamation on grounds that the President exceeded his authority under Section 212 (f) of the Immigration and Nationality Act (INA).
Section 212 (f) of INA provides the President the authority to ban or restrict the entry of any aliens or of a class of aliens “for such period as he shall deem necessary.” That is how the June 2020 proclamation, which banned entry of non-immigrant workers with visas such as H-1B, came to be.
However, it might not be as easy, thanks to a recent judgement.
What was this judgement?
On December 31, 2020, the US Ninth Circuit court (appeals court) upheld the Presidential authority under Section 212 (f) of INA in a lawsuit related to Proclamation 9945.
The proclamation issued on October 4, 2019 banned the entry of immigrants who would financially burden the US healthcare system. This included people who lack health insurance after arriving in the country within 30 days of their entry and those who are unable to pay for healthcare costs in the US.
The order was effective November 3, 2019. This proclamation was challenged in the District Court of Oregon demanding a temporary restraining order on the proclamation. In November 2019, the plaintiffs were granted a preliminary injunction blocking the administration from implementing the order.
However, the US appeals court reversed the temporary restraining order and upheld that “the Proclamation was within the President’s statutory authority.”
Okay. So why is this even relevant to the current H-1B or skilled worker visa ban issue?
This decision, says immigration attorney Cyrus Mehta in a blog, might make it tough to challenge the proclamation issued on grounds that it exceeded Presidential authority under Section 212 (f) of INA.
Take for instance the lawsuit (NAM v. Trump) challenging the June proclamation filed by a group of trade organisations and business groups. These include the US Chamber of Commerce, National Association of Manufacturers (NAM), National Retail Federation, TechNet, a technology organisation whose members include Accenture, Facebook, and Google, and Intrax Inc, a California-based cultural exchange firm.
In October 2020, Judge Jeffery S White granted a preliminary injunction on grounds that the President exceeded his authority granted to him under INA in banning non-immigrant visa holders from entering the US. However, this is only applicable for the plaintiffs and their member organisations leaving other firms that employ highly skilled immigrants.
According to Mehta, “The Ninth Circuit’s ruling in the healthcare proclamation case … may have jeopardized NAM v. Trump, already limited in its application, since the decision in NAM v. Trump was based partly on the idea that the healthcare Proclamation exceeded presidential power.”
“It might also give ammunition to those who may wish to challenge Biden’s authority to rescind Proclamation 9945 and the extended Proclamations 10052 and 10014 (which banned the entry of non-immigrant guest visa workers immigrants respectively in to the US to protect American jobs),” he added.
This is important given that Indians are the largest beneficiaries of the H-1B visa and other skilled immigrant worker visas.
So, what now?
Well, though the judgement could give ammunition to those who want to challenge Biden’s authority to rescind proclamations, he still can rescind them.
Revoking proclamations would need the new government to provide a detailed reason for rescinding. The good news is that there is enough research data on the impact the proclamation had on the US economy.
So what kind of data are we talking about, and how much will that help?
According to multiple research reports, the proclamation banning skilled workers into the US had an adverse impact on the economy. American research agency Brookings noted in a report that the June 22 proclamation resulted in a $100 billion loss for Fortune 500 companies in the US.
These firms include Alphabet Inc, Apple and IT firms such as Cognizant that are the top H-1B employers.
A research paper by the National Bureau of Economic Research noted that restrictions like banning entry of skilled workers would trigger offshoring to low-cost countries like India, and this in turn would impact the US economy.
US policy think tank National Foundation for American Policy (NFAP), too, pointed out that areas where skilled workers are deployed saw a lower unemployment rate.
The unemployment rate in computer-related occupations, where the majority of the H-1B workers has been employed, has been the lowest, at 3.5 percent, in September 2020. In addition, Stuart Anderson, Executive Director, NFAP, pointed out in his report last year that job vacancies increased by 4.7 percent to 655,386 in September compared to 625,702 in April-May 2020.
According to Mehta, given that these proclamations, including the ban on skilled workers into the US, the Biden administration should be able to give “ample and well-reasoned justifications.”