US judge rejects challenge to Trump’s H-1B ban

US visa

Indian American judge orders State Department to process diversity visa applications by Sept. 30.

A US judge has virtually rejected a challenge to the Trump administration’s twin travel bans barring employment based green card and nonimmigrant work visa applicants from entering the US until the yearend.

Denying a motion for preliminary injunction in five lawsuits challenging two presidential proclamations, District Judge Amit P. Mehta of the US District Court for the District of Columbia left the bans almost entirely intact.

One proclamation concerns employment based green card applicants. The other affects those applying for H-1B, L-1, and J-1 work visas coveted by Indians.

However, Mehta’s Sept. 4 ruling recognized the particular urgency of the Diversity Visa plaintiffs’ situation and granted them injunctive relief, according to the National Law Review.

He ordered the State Department to make good faith efforts to “expeditiously process and adjudicate DV-2020 diversity visa and derivative beneficiary applications” and issue visas to those eligible by Sept. 30 – the deadline for the Diversity Visa program.

Mehta, according to the review, opined that the Presidential Proclamations blocked entry of certain immigrants and non-immigrants, but that did not justify the institution of a “no-visa” policy.

The State Department could not simply decide to suspend visa processing and in so doing, basically “extinguish” this year’s Diversity Visa program, he noted

In ruling against other immigrant and non-immigrant plaintiffs, Mehta distinguished between the harm done to the Diversity Visa applicants who would lose their singular chance to obtain Green Cards if their visas were not adjudicated by Sept. 30 and the situation of other applicants.

RELATED: H-1B archive

In upholding the entry bans, the court relied on the US Supreme Court case Trump v. Hawaii to significantly restrict the scope of judicial review for such bans, Law360 noted.

The court accepted the president’s economic justifications for the bans at face value, and said that the court could not independently determine whether these stated justifications were rationally supported by the evidence, adding that even if the president acted on “plainly false pretenses,” the remedy would lie with Congress, not the court.

On the other hand, the court restricted some of the president’s authority under the bans, contradicting long-standing government interpretation.

In an unprecedented step, the court held that the legal basis of the travel bans — presidential authority under Section 212(f) of the Immigration and Nationality Act — only applies to entry into the US, not to visa issuance, Law360 said.

However, the court refused to order the State Department to resume visa issuance, as this required a finding that the plaintiffs are likely to suffer irreparable harm without preliminary relief.

Because persons affected by the proclamations would remain banned from entry even if they were issued visas, there was no irreparable harm, except in regard to Diversity Visa lottery winners, the court ruled.

READ MORE:

New Jersey firm to pay $345,000 to settle H-1B pay claims (September 16, 2020)

ICE extends employment eligibility verification compliance till Nov. 19 (September 15, 2020)

USCIS gives 60 days grace to naturalization applicants (September 14, 2020)

One Comment

  1. What the people of the court refuse to understand is that about 17 percent of businesses established in the United States are opened by immigrants, more businesses means more jobs. What I fail to understand is that how does suspending the issuance of immigrant visas and visa services protect the labor market? When in reality it’s actually damaging it more.

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