H-1B visa holders await judgement on second lawsuit against Trump's ban on temporary workers

The hearing on the lawsuit against US President Donald Trump's order banning entry of temporary workers into the country has concluded. The US Chamber of Commerce had filed the lawsuit with support from tech firms such as Facebook, Apple and Microsoft. On June 22, Trump signed an order restricting the entry of H-1B and L-1 visa holders, who are employed in large numbers by these US firms.

While the lawsuit was initially filed in July by the US Chamber of Commerce and other trade organisations like the National Association of Manufacturers and National Retail Federation,  it was later supported by the US tech giants.

The arguments were heard by Judge Jeffrey White in the San Francisco Federal court. Judgement for the case is awaited.

What transpired?

Plaintiffs, here the business organisations, want to declare June 22 proclamation unlawful. In his executive order, Trump said the ban is to address growing unemployment in the US due to COVID-19. Currently, the unemployment rate in the US is about 8.4 percent, down from 14.7 percent in April when the pandemic hit. Over 30 million people lost jobs in the first few months of the pandemic.

The proclamation was an attempt to address these job losses. He had banned, H-1B, L-1, J-1 and H-2B visa holders from entering the country till the year-end.

During the argument, Paul Hughes, who argued for the plaintiff’s side, pointed out that there is no finding that these people entering the US will harm the employment prospects of Americans. When a visa category is linked to the ban, Hughes said there has to be a finding that these categories impact unemployment.

While H-2B visa is for temporary non-agriculture workers, others such as H-1B, L-1 and J-1 are highly skilled immigrant visas. According to an analysis by the National Foundation for American Policy, an immigration think tank, occupations in the tech sector that largely employs H-1B visa holders are not impacted due to COVID-19. The number of L-1 visa holders is low compared to that of H-1B. Hughes had also argued that these proclamations are impacting small businesses that depend on these workers.

After taking note of arguments from both the sides, the judge White is expected to pronounce the judgement in the coming days. The date, however, is not clear.

Judgement is important

There is a lot riding on this judgement for H-1B visa holders who were disappointed by the recent verdict in the first lawsuit. The first lawsuit was filed in the United States District Court for the District of Columbia representing close to 171 H-1B visa holders and their dependents.

Judge Amit P Mehta, in his judgement, had rejected the argument of the visa holders that the US President overrode his authority while banning their entry. Mehta, in a detailed 85-page ruling, rejected the plaintiffs’ statutory and constitutional challenges to the proclamations and said that the exceptions do not override the provisions of the Immigration and Nationality Act (INA).

He further added that when there are provisions for non-US citizens to travel to the US (relaxations were announced for entry of H-1B workers last month), the argument that these proclamations add burdensome conditions to their entry is not a valid objection.

While these relaxations quoted by Judge Mehta does help a portion, this leaves the majority of them out. With the likelihood of the ban extending further, especially when a lot depends on the outcome of the elections,  these visa holders are looking for relief that would get them back to the US.