This district court order strongly points out that the US President does not have unbridled authority to set domestic policy regarding employment of non-immigrant foreigners. The order was passed on Thursday and the preliminary injunction takes effect immediately and remains in effect pending completion of the trial or until further orders of this court.
This order is being hailed as a landmark decision, especially since in August, judge Amit Mehta, in another case, had upheld President Trump’s authority to issue the work visa ban.
Owing to President Trump’s ‘Proclamation’ issued in June, foreign nationals outside the US, who were to begin work on an H-1B visa or L-1 (intra company transfer), but did not as yet hold a valid visa as well as their dependants were debarred entry at least until December end. Even those who had travelled to India, for personal reasons, found that they could not obtain a visa stamp, essential for re-entry into the US. Certain other non-immigrant work visa categories were also covered by the travel ban.
This lawsuit against the department of homeland security and other agencies, was filed by a host of business associations, led by the national association of manufacturers. The plaintiffs also included the national retail federation, Technet and the US chamber of commerce. Several large companies including Apple, Amazon, Microsoft had also filed an amicus brief to support the lawsuit.
Greg Siskind, founder partner at the immigration law firm of Siskind Susser explains, “The order is limited to the plaintiffs. However, the main plaintiffs are massive membership organisations, that represent the bulk of US employers. All their members (employer companies) will benefit from the order. Effectively, the Trump administration will have to allow all visas in the categories to be admitted given the size of the plaintiff’s membership. There is also no bar on a company that is currently not a member of one of these associations, from becoming a member and being covered by the order.”
The avowed objective of the travel ban was to protect American jobs – as the pandemic had led to a dire situation. However, the court order points out that “There is no record that the President or any agencies conducted any evaluation regarding the effect on the domestic economy of banning work-related non-immigrant visas. There were no reviews or reports made, showing any negative effect on the US economy. And the plaintiffs had loads of counter-evidence.”
Statements made by heads of US tech companies voicing their disappointment over the proclamation find a place in the order. For instance, Sundar Pichai, Google’s CEO had stated that “Immigration has contributed immensely to America’s economic success and made it a global leader in tech.” Judge White observed that notwithstanding high unemployment rates caused by Covid-19, a large number of vacancies still remained in the areas affected by the ban, such as computer operations, which require high skilled workers.
Cyrus D Mehta, a New York based immigration attorney told TOI, “In this case, judge White correctly found that President Trump did not have the authority to eviscerate broad provisions of the Immigration and Nationality Act (INA) under cover of the Covid-19 pandemic.”
“Although section 212(f) of the INA gives the President broad power to deny entry to foreigners, he finds are detrimental to the interests of the United States, judge White ruled that the President’s justification to do so with the work visa ban had no logical basis. This is because the Congress already had created protections for US workers within the existing visa categories, which the President cannot override through a Proclamation,” added Mehta.
The district court order states, “The Proclamation here deals with a purely domestic economic issue – the loss of employment during a national pandemic. In ‘domestic economic matters’, the national security and foreign affairs justification for policy implementations disappear, and the normal policy-making channels remain the default rules of the game.”
“Manufacturers went to court to challenge the administration’s ban on certain visas because the restrictions both undermined our industry at a critical time and conflicted with the law,” Linda Kelly, senior vice president and general counsel, at The National Association of Manufacturers stated in a press release. “We are grateful that the court recognised the real and immediate harm these restrictions have meant for manufacturers right now and stopped this misguided policy until the court can fully consider the matter,” she added.
The national association of manufacturers, which represents 14,000 US companies, through its spokesperson, sums up by saying that the US is competing with the rest of the word to find and develop top talent to support innovation.
“Today’s decision is a temporary win for manufacturers committed to building that innovation in the US. A long-term win for manufacturers requires policymakers to support meaningful reforms to our immigration laws that recognize the critical link between smart immigration policy and America’s competitive advantage,” it states.