Major lawsuit filed to save families from Trump H-1B visa ban

A new lawsuit hopes to save H-1B visa holders and their spouses and children who will not be granted visas or allowed to enter the United States by the Trump administration. Filed on behalf of 174 Indian citizens, including 7 minor children, the legal action, the first to challenge the recent presidential proclamation, requests a court to compel the State Department “to issue decisions on the plaintiffs pending requests for H-1B and H-4 visas “, to prohibit the Department of Homeland Security from denying entry to the United States” and to declare illegal the “restriction on the proclamation to issue new H-1B or H-4 visas or to admit new holders of H-1B or H-4 visa. “

On June 22, 2020, Donald Trump issued a Presidential Proclamation (Proclamation 10052) that suspended the entry of foreign nationals on temporary H-1B, L, H-2B and J visas until at least December 31, 2020. The advisor from the White House, Stephen Miller. He is believed to be the main architect of the proclamation. The proclamation justified the new visa restrictions with little financial data. More importantly, from a legal perspective, the proclamation overrides the key provisions of the United States immigration law.

The lawsuit, filed on behalf of the plaintiffs by Wasden Banias, which earlier this year won a significant legal victory against the Trump administration’s H-1B visa policies, argues that the authority of the president under Section 212 (f) it does not extend to override specific parts of the Immigration and Nationality Act (INA). “This case presents an open question by Trump v. Hawaii . . . either [Section 212(f)] allows the president to override particular provisions of the Immigration and Nationality Law. See Hawaii, 138 S. Ct. at 2411 (“We can assume that §1182 (f) does not allow the President to expressly override particular INA provisions),” the plaintiffs write. “Unlike the ban challenged in HawaiiProclamation 10052 nullifies a detailed and reticulated legal regime, and subverts legislative commitments in Congress, regulating the employment of foreign citizens, and meeting the needs of employers in the United States. “

The complaint, filed in the United States District Court for the District of Columbia, notes that Congress specified the rules under which H-1B visa holders could work in the United States and balanced the interests of workers. and employers in the United States. An employer is required to pay an H-1B visa holder the higher of the current salary, or the actual salary that the employer pays to similar employees, to post a notice when an H-1B professional is in the workplace and agrees with other obligations, please note the plaintiffs

The complaint seeks to protect H-1B professionals, including those who have passed the labor certification process and have approved immigrant petitions. These people are waiting for their priority date to obtain permanent residence, a wait that can take many years for Indian citizens. “The statute requires employers to obtain a certification from the Department of Labor (DOL) stating that there are no qualified, capable and willing United States workers available to fill the employer’s job opportunity,” according to the complaint. “To obtain a labor certification, current DOL regulations require that an employer make a good faith effort to recruit workers from the United States before obtaining certification. . . including advertising of the position. . . and demonstrating that the employment opportunity is clearly open to any skilled worker in the United States. “

The complaint also notes that Congress “sought to increase employers’ continued access to skilled occupation workers from countries with long waits for immigrant visas” under the 21st Century American Competitiveness Act (AC 21), passed in 2000 “In light of the long delays for immigrant visas, based on the AC21 extensions, it is common for nationals of certain countries to hold H-1B visas for years,” according to the plaintiffs. “As such, long-term US residents, often with US citizen children, must go to their consulate of origin when traveling internationally if they do not have a current ‘visa’.”

The complaint describes the terrible experience of one family after another affected by the presidential proclamation. The first applicant listed (name redacted) 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 has a 1-year-old son who is a U.S. citizen. The family “recently traveled from the United States to India. While in India, they applied for a non-immigrant visa to the appropriate consulate, either an H-1B or H-4, by electronic filing of a DS160. Until on June 22, 2020, no consular officer had made a final decision on any of these pending DS160s … The defendants’ refusal to make a decision on these pending DS160s is causing significant harm to [the family] . . . and it’s illegal. “

Jonathan Wasden, who presented the case with Bradley Banias and Geoffrey Forney, argues that, apparently, the proclamation is supposed to be for economic reasons, its breadth makes it a non-immigrant ban (temporary visa holder). “It is too broad,” Wasden said in an interview. “It is aimed at many people who are not even working.” In the fourth cause of action, the complaint states: “The defendants’ refusals to issue visas or consider applications for admission do not fully consider an important aspect of the problem, primarily that H-4 children under the age of 4 do not work “

Causes of action in the complaint include: “Suspension of the Proclamation of 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 domestic economy. . . [and] it subverts the careful balance of interests of the Congress reflected in the text. “The complaint adds that the proclamation also violates the Administrative Procedure Law, since the proclamation” was issued outside the INA’s jurisdictional limitations. [Immigration and Nationality Act]. “

The third cause of action establishes that the proclamation is illegal because “according to the APA [Administrative Procedure Act] The executive may not withdraw, suspend, revoke, or cancel a license unless it notifies and provides an opportunity to comment. . . The fact that USCIS grants a petition to classify a foreign citizen as an H-1B nonimmigrant or H-4 nonimmigrant constitutes the granting of a license within the meaning of the APA. “

The lawsuit will not be the last to challenge the presidential proclamation of June 22, 2020. If successful, the latest legal action against the Trump administration would help many families and could later allow other H-1B professionals and their spouses and children. obtain visas and enter the United States. The end result of the lawsuit, said Jonathan Wasden: “The President is not a king. You can’t invalidate decades of immigration law just because Stephen Miller whispers in your ear and says it. “