H-1B visa: US judge blocks President Trump’s ban

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Updated: October 02, 2020 9:16 AM

The judge noted that the text of Article I and more than two centuries of legislative practice and judicial precedent make clear, the Constitution vests Congress, not the President, with the power to set immigration policy.

H-1B, US visa, immigration visa, indian IT workersThe Trump administration has made H-1B non-immigrant visa rules stricter, which may affect thousands of Indian IT workers seeking an opportunity to work in the US.

A federal judge has blocked the enforcement of the H-1B visa ban issued by President Donald Trump in June this year, saying the president exceeded his constitutional authority.

The order was issued on Thursday by District Judge Jeffrey White of Northern District of California.

The lawsuit against the Department of Commerce and Department of Homeland Security was filed by companies represented by National Association of Manufacturers, US Chamber of Commerce, National Retail Federation and TechNet.

The ruling places an immediate hold on a series of visa restrictions that prevent manufacturers from filling crucial, hard-to-fill jobs to support economic recovery, growth and innovation when most needed, the National Association of manufacturers said.

In June, Trump had issued an executive order that had put temporary bar on issuing of new H-1B and other foreign visas including H-2B, J and L visas, till the end of the year.

The president had argued that the United States needs to save and protect jobs for its domestic work force at a time when millions of them lost their jobs due to coronavirus pandemic.

A number of IT companies and other US firms, and those representing them had voiced their opposition to the temporary ban.

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

“We are competing 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 committed to building that innovation in the United States,” he said.

In his order the federal judge said the president exceeded his authority in this matter.

Congress’s delegation of authority in the immigration context does not afford the president unbridled authority to set domestic policy regarding employment of nonimmigrant foreigners. Such a finding would render the president’s Article II powers all but superfluous,” Judge White wrote in his 25 pager order.

The judge noted that the text of Article I and more than two centuries of legislative practice and judicial precedent make clear, the Constitution vests Congress, not the President, with the power to set immigration policy.

If the fact that immigrants come from other countries inherently made their admission foreign relations subject to the President’s Article II power, then all of this law would be superfluous, the judge said.

“Indeed, there must be some measure of constraint on the presidential authority in the domestic sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative.

Such unrestricted authority would be contrary to Congress’ explicit delegation of powers in foreign affairs and national security,” White said.

The ruling by Judge White is in difference with a order passed by District Judge Amit Mehta of the District of Columbia in August who ruled that he does not has the power to enjoin the ban while the litigation is under way. “The wisdom of the president’s decision to address those changed circumstances by restricting the entry of certain classes of aliens is a policy decision the judiciary is not well equipped to evaluate,” he had said.

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