A new lawsuit hopes to save H-1B visa holders and their spouses and children who the Trump administration will not grant visas or allow to enter the United States. Filed on behalf of 174 Indian nationals, including 7 minor children, the legal action, the first to challenge the recent presidential proclamation, asks a court to compel the State Department “to issue decisions on the plaintiffs pending requests for H-1B and H-4 visas,” to enjoin the Department of Homeland Security from refusing entry to the United States” and to declare unlawful the proclamation’s “restriction on issuing new H-1B or H-4 visas or admitting new H-1B or H-4 visa holders.”
On June 22, 2020, Donald Trump issued a presidential proclamation (Proclamation 10052) that suspended the entry of foreign nationals on H-1B, L, H-2B and J temporary visas until at least December 31, 2020. White House adviser Stephen Miller is believed to be the chief architect of the proclamation. The proclamation justified the new visa restrictions with little economic data. More important, from a legal perspective, the proclamation overturns key provisions of U.S. immigration law.
The lawsuit, filed on behalf of plaintiffs by Wasden Banias, which earlier this year won an significant legal victory against the Trump administration’s H-1B visa policies, argues the president’s authority under Section 212(f) does not extend to overriding specific parts of the Immigration and Nationality Act (INA). “This case presents a question left open by Trump v. Hawaii . . . whether [Section 212(f)] allows the president to override particular provisions of the Immigration and Nationality Act. See Hawaii, 138 S. Ct. at 2411 (“We may assume that §1182(f) does not allow the President to expressly override particular provisions of the INA.),” write the plaintiffs. “Unlike the ban challenged in Hawaii, Proclamation 10052 overrides a detailed and reticulated statutory regime, and subverts Congress’s legislative compromises, regulating the employment of foreign nationals and providing for the needs of United States employers.”
The complaint, filed in the U.S. 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 U.S. workers and employers. An employer is required to pay an H-1B visa holder the higher of the prevailing wage or the actual wage the employer pays similar employees, to post a notice when an H-1B professional is at a worksite and commits to other obligations, note the plaintiffs.
The complaint seeks to protect H-1B professionals, including those who have passed the labor certification process and possess approved immigrant petitions. Such individuals are waiting for their priority date to obtain permanent residence, a wait that can take many years for Indian nationals. “The statute requires employers to obtain a certification from the Department of Labor (DOL) stating that there are no qualified, able, and willing United States workers available to fill the employer’s job opportunity,” according to the complaint. “To get a labor certification, DOL’s current regulations require an employer to engage in a good faith effort to recruit United States workers before obtaining certification . . . including advertising the position . . . and demonstrating that the job opportunity is clearly open to any qualified United States workers.”
The complaint also notes that Congress “sought to increase employers’ continuous access to specialty occupation workers from countries with long waits for immigrant visas” under the American Competitiveness in the 21st Century Act (AC 21), passed in 2000. “In light of the long backlogs for immigrant visas, based on the AC21 extensions, it is common for nationals of certain countries to be in H-1B visa status for years,” according to the plaintiffs. “As such, long-time U.S. residents, often with U.S. citizen children, must go to their home consulate when they travel internationally 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 plaintiff listed (name redacted) is an H-1B visa holder with an approved immigrant petition in the employment-based second preference category. His wife is eligible for an H-4 visa, and the couple have a 1-year-old child who is a U.S. citizen. The family “recently traveled from the United States to India. While they were in India, they applied to the appropriate consulate for a nonimmigrant 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 any of these pending DS160s. . . . Defendants refusal to make a decision on these pending DS160s is causing significant harm to [the family] . . . and is unlawful.”
Jonathan Wasden, who with Bradley Banias and Geoffrey Forney filed the case, argues while on the surface the proclamation is supposed to be for economic reasons, its breadth makes it a nonimmigrant (temporary visa holder) ban. “It’s overly broad,” said Wasden in an interview. “It targets a lot of people who aren’t even working.” In the fourth cause of action, the complaint states, “Defendants’ refusals to issue visas or consider applications for admission entirely fail to consider an important aspect of the problem, primarily that H-4 minor children do not work.”
The causes of action in the complaint include: “The Proclamation’s suspension of the entry of foreign nationals returning to the United States to resume employment under approved H-1B petitions constitutes an ultra vires attempt to regulate the domestic economy . . . [and] subverts Congress’s careful balance of interests reflected in the text.” The complaint adds the proclamation also violates the Administrative Procedure Act, since the proclamation “was issued outside the jurisdictional limitations of the INA [Immigration and Nationality Act].”
The third cause of action states the proclamation is unlawful because “Under the APA [Administrative Procedure Act] the executive may not withdraw, suspend, revoke or annul a license unless it gives notice and provides an opportunity to comment . . . USCIS’s granting of a petition to classifying a foreign national as H-1B non-immigrant or an H-4 non-immigrant constitutes the granting of a license within the meaning of the APA.”
The lawsuit will not be the last to challenge the June 22, 2020, presidential proclamation. If successful, the latest legal action against the Trump administration would help many families and may later allow other H-1B professionals and their spouses and children to gain visas and enter the United States. The bottom line of the lawsuit, said Jonathan Wasden: “The president is not a king. He can’t invalidate decades of immigration law just because Stephen Miller whispers in his ear and says so.”