US judge blocks H-1B visa ban, says President Donald Trump “has exceeded his authority”


A US judge has blocked enforcement of a temporary H-1B visa ban imposed by Donald Trump (file)


In a great relief to thousands of Indian IT professionals, a federal judge in the US on Thursday blocked the Trump administration’s enforcement of a temporary visa ban on a large number of work permits, including the most sought-after H-1B visas that the president has given his has transgressed constitutional authority.

The order of U.S. District Judge Jeffrey White of the Northern District of California applies to members of organizations who have filed lawsuits against the Department of Commerce and the Department of Homeland Security – the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Retail Federation , TechNet, a technology industry group, and Intrax Inc., which promotes cultural exchange.

The ruling immediately puts a number of harmful visa restrictions in place, preventing manufacturers from filling critical, hard-to-fill jobs to support economic recovery, growth and innovation when it is most needed, according to the national manufacturers’ association.

In June, Donald Trump passed an executive order temporarily banning the issuance of new H-1B visas, which are widely used by major American and Indian tech companies. H-2B visas for non-agricultural seasonal workers, J visas for cultural exchange and L visas for managers and other key employees of multinational companies by the end of the year.

President Trump had argued that the US must save and protect jobs for its domestic workers at a time when millions of them have lost their jobs due to the coronavirus pandemic.

A number of IT companies and other US companies and their representatives had spoken out against it.

Manufacturers went to court to challenge the government’s ban on certain visas as the restrictions undermined the industry at a critical time and conflicted with the law, said Linda Kelly, senior vice president and general counsel of NAM.

We compete with the rest of the world to find and develop top talent to support innovation in our industry. Today’s decision is a temporary win for manufacturers looking to build this innovation in the US, he said.

Long-term win for manufacturers requires policymakers to support significant reforms to our immigration laws that recognize the critical link between smart immigration policies and America’s competitive advantage, said Ms. Kelly.

In his order, the federal judge said the president had “exceeded his authority.”

Congressional delegation in the immigration context does not grant the President unbridled power to determine domestic policy regarding the employment of non-immigrant foreigners. Such a determination would render the President’s powers under Article II all but superfluous, wrote Judge White in his 25-page order.

The judge found that the text of Article I and more than two centuries of legislative practice and precedent make it clear that the Constitution gives Congress, not the President, the power to determine immigration policy.

If the fact that immigrants come from other countries naturally subjects their inclusion in external relations to the powers of the President under Article II, then all of this law would be superfluous, the judge said.

Indeed, in order to avoid making the executive a fully monarchical power in the immigration context, an area that falls within the clear legislative prerogative, the authority of the president in the domestic sphere must be curtailed to some extent. Such full authority would contradict the express delegation of powers by Congress in the areas of foreign policy and national security, White said.

Judge White’s ruling contradicts an August decision by District of Columbia District Judge Amit Mehta who ruled that he has no authority to join the ban while the lawsuit is pending.

The wisdom of the president’s decision to address these changing circumstances by restricting the entry of certain classes of foreigners is a political choice the judiciary is not well equipped to evaluate, he said.

The most sought-after H-1B visa among Indian IT professionals is a nonimmigrant visa that allows U.S. corporations to employ foreign workers in specialized jobs that require theoretical or technical expertise. The tech companies rely on hiring tens of thousands of employees from countries like India and China every year.

(Except for the headline, this story was not edited by GossipMantri staff and posted from a syndicated feed.)


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