A new trial hopes to save H-1B visa holders and their spouses and children that the Trump administration will not grant a visa or allow to enter the United States. Filed on behalf of 174 Indian nationals, including 7 minor children, the lawsuit, the first to challenge the recent presidential proclamation, requests a court to compel the State Department “to make decisions on the plaintiffs pending the applications for H-1B and H- 4 visas “, to prohibit the Department of Homeland Security from refusing entry to the United States” and to declare illegal the “restriction on the issuance of new H-1B or H-4 visas or the admission of new H-1B or H-4 visa holders ”. ”
On June 22, 2020, Donald Trump issued a Presidential Proclamation (Proclamation 10052) which suspended the entry of foreign nationals on temporary visas H-1B, L, H-2B and J until at least December 31, 2020. White House Councilor Stephen Miller is said to be the chief architect of the proclamation. The proclamation justified the new visa restrictions with little economic data. More importantly, from a legal standpoint, the proclamation overrides key provisions of the US immigration law.
The lawsuit, filed on behalf of the plaintiffs by Wasden Banias, who earlier this year won a major legal victory against the Trump administration’s H-1B visa policies, argues that the President’s authority under section 212 (f) does not extend to the neutralization of specific parts of the Immigration and Nationality Act (INA). “This case presents a question left open by Trump c. Hawaï . . . whether [Section 212(f)] allows the president to override certain provisions of the Immigration and Nationality Act. See Hawaii, 138 S. Ct. At 2411 (“We can assume that §1182 (f) does not allow the president to expressly override specific provisions of the INA.)”, Write the complainants. “Unlike the contested ban HawaiiProclamation 10052 prevails over a detailed and reticulated legislative scheme, and subverts the legislative compromises of Congress, regulating the employment of foreign nationals and meeting the needs of American employers. ”
The complaint, filed with the United States District Court for the District of Columbia, points out that Congress specified the rules under which H-1B visa holders could work in the United States and balanced the interests of American workers and employers. An employer is required to pay to an H-1B visa holder the higher of the salary in force or the actual salary that he pays to similar employees, to publish a notice when an H-1B professional is on a site and undertakes other obligations, note the complainants.
The complaint seeks to protect H-1B professionals, including those who have successfully completed the labor certification process and have approved immigrant petitions. These people wait for their priority date to obtain permanent residence, a wait that can take many years for Indian nationals. “The law requires employers to obtain certification from the Department of Labor (DOL) that there are no qualified, capable and willing American workers available to fill the employer’s employment opportunity,” said the complaint. “To obtain labor certification, current DOL regulations require an employer to make a good faith commitment to recruit American workers before obtaining certification. . . including post advertising. . . and demonstrating that the possibility of employment is clearly open to any qualified American worker. ”
The complaint also notes that Congress “sought to increase employers ‘continued access to skilled workers in countries where immigrant visas have been long awaited” under the United States’ 21st Century Competitiveness Act (AC 21 ), adopted in 2000. “In light of the long backlogs of immigrant visas, based on the AC21 extensions, it is common for nationals of certain countries to have had H-1B visa status for years”, according to the complainants. “As such, long-time US residents, often with US citizen children, must go to their consulate of origin when traveling abroad if they do not have a current” visa ” . ”
The complaint describes the ordeal of one family after another affected by the presidential proclamation. The first registered applicant (redacted name) is an H-1B visa holder with an approved immigrant petition in the second preference category based on employment. His wife is eligible for an H-4 visa, and the couple have a one-year-old child who is a US citizen. The family “recently traveled from the United States to India. While in India, they applied to the appropriate consulate for a non-immigrant visa, either an H-1B or an H-4, by electronically submitting a DS160. As of June 22, 2020, no consular officer had made a final decision on one of these pending DS160s. . . . The defendants’ refusal to make a decision on these pending DS160s causes material prejudice to [the family] . . . and is illegal. ”
Jonathan Wasden, who has filed a complaint with Bradley Banias and Geoffrey Forney, argues that apparently the proclamation is supposed to be for economic reasons, its magnitude makes it a non-immigrant ban (temporary visa holder). “It’s too broad,” Wasden said in an interview. “It targets a lot of people who don’t even work.” In the fourth cause of action, the complaint states that “the defendants’ refusals to issue visas or to consider applications for admission completely ignore an important aspect of the problem, mainly that H-4 minor children do not work”.
The causes of action for the complaint are as follows: “The proclamation of the suspension of the entry of foreign nationals returning to the United States to resume employment under approved H-1B petitions constitutes a ultra vires attempt to regulate the national economy. . . [and] subverts the proper balance of Congress interests reflected in the text. “The complaint adds that the proclamation also violates the law on administrative procedure, since the proclamation” was published outside the jurisdictional limits of the INA [Immigration and Nationality Act]. «
The third cause of action indicates that the proclamation is illegal because “under the ABS [Administrative Procedure Act] the executive may not withdraw, suspend, revoke or cancel a license unless it gives notice and gives the opportunity to comment. . . The granting by USCIS of a petition to classify a foreign national as non-immigrant H-1B or non-immigrant H-4 constitutes the granting of a license within the meaning of the APA. ”
The trial will not be the last to challenge the presidential proclamation of June 22, 2020. If successful, the latest lawsuit against the Trump administration would help many families and could later allow other H-1B professionals and their spouses and children to obtain visas and enter the United States. The final result of the trial, said Jonathan Wasden: “The president is not a king. He cannot invalidate decades of immigration law simply because Stephen Miller whispers in his ear and says it. “