In what can now be termed as a major relief for thousands of India IT professionals, on Thursday a federal judge in the US blocked the enforcement of a temporary visa ban by the Trump administration. The visa ban would have worked on a large number of work permits which includes the most sought after H-1B visas.
Ruling that the Potus exceeded his constitutional authority, the order issued by US district judge Jeffrey White of California applies to members of organisations that filed a lawsuit against the Department of Commerce and Department of Homeland Security. This includes the US Chamber of Commerce; National Association of Manufacturers; National Retail Federation; TechNet, a technology industry group; and Intrax Inc., which sponsors cultural exchanges.
An immediate hold on a series of damaging visa restrictions that prevent manufacturers from filling crucial, hard-to-fill jobs to support economic recovery, growth, and innovation when most needed, is now able because of the ruling said the National Association of Manufacturers (NAM).
Trump in June had issued an executive order which put a temporary bar on the issuing of H-1B visas. These are widely used by major Indian and American technology companies. While H-2B visas are for non-agricultural seasonal workers, J visas are for cultural exchanges and L visas are for managers and other key employees of multinational companies.
According to Trump, the US needs to protect and save jobs for its domestic workforce. This too at a time when millions of those domestic workforces had lost their jobs owing to the COVID-19 pandemic. Many IT companies and other US-based companies had voiced their opposition to this visa ban. Linda Kelly, NAM senior vice president, and general counsel said that as the restrictions undermined the industry at a critical time and even conflicted with the law, manufacturers even went to the court to challenge the administration’s ban on certain visas.
According to him, the decision was a temporary win as the US is competing with the rest of the world to find and develop top talent to sustain innovation in the US industry. However, he added that a long term win for manufacturers would require policymakers to support meaningful reforms to the country’s immigration laws, which on the other hand recognize the critical link between smart immigration policy and America’s competitive advantage.
Judge White, in his 25-page order, wrote that Congress’s delegation of authority in the immigration context does not afford the president unbridled authority to set domestic policy regarding the employment of non-immigrant foreigners. Such a finding would render the president’s Article II powers all but superfluous he added.
The judge added that from the text of Article I and more than two centuries of legislative practice and judicial precedent has made it clear that the Constitution vests Congress, not the Potus with the power to set immigration policies. He added that, if immigrants coming from other countries had to inherently make their admission foreign relations subject to President’s Article II power, then all of these laws would be superfluous.
White said that there must be some measure of constraint on the authority of the president in the domestic sphere in order not to render the executive an entirely monarchical power in the context of immigration.