Judge Stops H-1B Ban, Saying Trump Exceeded Authority

During the summer, the Trump administration issued a temporary ban on the H-1B and other visas. CEOs of major companies (such as Apple and Google) criticized the decision, while critics of the H-1B said it was a good first step to limiting its overall use. But now, a federal judge has ruled against the ban.

United States District Judge Jeffrey S. White’s ruling in National Association of Manufacturers, et al. v. U.S. Department of Homeland Security, delivered Oct. 1, rests on a couple of legal and logistical points, which Forbes breaks down in an excellent article. The bottom line, though, is that the court thinks the President exceeded the authority given to him by Congress when he issued the proclamation banning multiple kinds of visas. 

“Indeed, there must be some measure of constraint on 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,” read White’s ruling. “Such unrestricted authority would be contrary to Congress’ explicit delegation of powers in foreign affairs and national security.” A President, in other words, does not have unlimited power when it comes to domestic affairs—no matter how much he or she might want it. 

White also suggested that one of the key arguments behind Trump’s ban, that reducing the amount of visas will boost the employment of U.S. citizens during the COVID-19 pandemic, is overblown: “The statistics regarding pandemic-related unemployment actually indicate that unemployment is concentrated in service occupations and that large number of job vacancies remain in the area most affected by the ban, computer operations which require high-skilled workers.” 

Pending any appeals and final judgment, the Department of Homeland Security is banned from implementing or enforcing the President’s ban.

On the same day that White made his ruling, Bloomberg Law pointed out that language suggesting the H-1B would be revamped had been removed from the White House’s regulatory review. In September, the Department of Homeland Security had made it clear that it wanted to revise the H-1B’s definition of “specialty occupation” in order to “increase focus on obtaining the best and the brightest foreign nationals via the H-1B program,” although the details of that revision remained under wraps.

There’s every chance that the disappearance of that language is just a bureaucratic glitch; but it could also suggest that the Trump administration is taking additional time to revamp the revamp. 

The court ban, combined with a possible change in plans to revise the visa’s requirements, injects a note of uncertainty into the H-1B process less than a month before the next Presidential election. Whoever wins that contest, it’s likely that the parameters of the H-1B could look very different by this time next year. 

43 Responses to “Judge Stops H-1B Ban, Saying Trump Exceeded Authority”

    • Be careful of Indian employment recuiter scammers that try to contact you by email/phone to offer you a job in order to trick you into give them your private information. I heard they use it to try to extend their immigration status to work in silicon valley. I lady told me her husband that worked in google saw that and also that they re-use your private info among themselves. Try tracking their emails when they reach out to you and you will see where they really are.

  1. Leonardo Armando Paone

    Why would any country allow migration of HB-1 visa holders into a country when it has 1.4 million people unemployed. The Indians have ravaged our tech industry for years, they did the work for half pay, left computer science majors with tens-of-thousands in student debt, who had to compete with them. And left a path of destruction in many companies in regard to the sub-standard, shoddy work they did. I know this, most of my consulting work was generated to clean up the shit-storm they created. But don’t worry, with 80,000 cases of COVID a day in India, not of those rag-heads are getting through customs at JFK for a very long time; regardless of the HB-1 status.

      • Indian H1 and offshore only care about getting the project finished in the least time possible. They are willing to cut corners, like in Security, that causes issues down the road. They don’t give notes. They don’t conform to best practices or company IT policies.

        They are demeaning to American workers, especially women. It always ends in who can talk the loudest in every meeting with Indians.

        H1s fill positions as VPs, Directors, Managers, systems engineers, network engineers, and security engineers. All of these are non-programming jobs. All of these could be filled by Americans holding the same certifications/qualifications. They aren’t. Big tech hires H1s or offshored the job. Highly trained Americans take lesser jobs or transfer to alternative career fields. American kids are being told to not try learning programming languages. They will never be able to compete against cheap Indian programmers.

        20 years ago a call center job was a path to get started in IT. Now the barrier to get started is higher than ever. The path to continue is higher than ever. This isn’t about our ability to keep up on a level playing field. But there is no chance to win when Big Tech chooses H1 over American almost every time.

      • Are you claiming that Indians are better skilled than Americans? How so? Surely you are not suggesting that education in India is better than in America. Where do Indians get their valuable skills that Americans are lacking? Of all the IT products available in the market, I have never seen any that came from India. So where do Indians get those valuable skills that are superior to American IT workers? Indians are full of themselves thinking they have special abilities that Americans don’t. Americans are better educated and more innovative. All the leading products are made in America by American ingenuity. When America has a labor shortage, it makes sense to outsource, but that doesn’t mean America outsources to better skilled IT professionals. Outsourcing is meant to fill gaps in the industry; not replace American jobs.

      • So……you assume the H-1Bs are more qualified than American tech workers? How do you know that? Or are you a shill for a tech company that wants cut-rate foreigners at a cut-rate wage?
        Inquiring minds want to know.

  2. If Trump exceeded his authority, how about USCIS moved India’ EB2 & EB3 priority dates by 1-5 years (never ever done in recent times) all of sudden in this month bulletin to increase its revenues (because self funded) just not to furlough its employees but that will increase financial burden to entire country in near future. This is not called exceeding their authority? Can courts correct this one too and put back the priority dates?

  3. The system needs an overhaul, not a little executive order. Trump regularly exceeds his authority because he doesn’t understand the law. This ruling should leave no doubt who really runs this country, the corporations and the rich. A higher court ruling could change this decision. It doesn’t make sense with so many Americans unemployed to be importing cheap labor which lowers the salary for all in the field. Some of the unemployed Americans could be trained for jobs in IT. When everyone in America has a job and we still need help then import labor.

  4. Appointed by George W. Bush, but this guy is a lefty California loon.
    For one thing, he’s a climate change believer. Or more specifically, that citizens of the United States are responsible for climate change or global warming or whatever the phrase of the month that is being used by the greenies.
    Hopefully, this can be appealed for the benefit of U.S. tech workers.

  5. Proud Republican

    @Mr. Paone: Your usage of the term “rag-head” and delighting about the 80,000 Covid-19 cases/day in India is vitriolic and racist. It is as racist as saying all Italians are “mafiosi” and delighting in the large number Covid-19 cases in Italy.

    • Stephen

      just an fyi: The reason for the high numbers of Covid Cases in Northern Italy, is because that is where the Chinese go on vacation, especially after the virus had spread among them and they were allowed to travel throughout the world to spread it, but not travel within China. (is that racist too? or just truth?)

  6. Ericka L Gibson

    I don’t normally post comments on threads, however, the comments made by foreign workers is somewhat disturbing and behavior that I have witnessed first hand. Public announcement Indian people, you are not better you are cheaper, good has nothing to do with it. I totally agree with the statement, ” Some of the unemployed Americans could be trained for jobs in IT. When everyone in America has a job and we still need help then import labor.” It is the most common sense statement that could be made! Next, we will need to start a petition for all Americans that have student loan debt with a technical degree, certifications, that cannot find employment because the US is outsourcing all of our jobs to be cleared of that debt… IDK It is the arrogance for me…

  7. Stephen

    Why is it a bad thing to put American workers first? When i see a tech or engineering job in the U.S. and it gets hundreds of applications from U.S. workers, there is NO SHORTAGE! It is simply and solely, they GREED and STUPIDITY of U.S. Companies that want CHEAP LABOR. And they don’t even know enough to realize it works like this, you have 1 person who is mildly competent in say, IT, he then gets his totally incompetent buddies hired (from INDIA) and you realize it, when they are trying to fix your system, and they don’t know basic computer fixes, but they have to ask the 1 qualified person how to do something. (And when i say cheap labor, keep in mind these non-U.S. workers are still making 80-150k or more a year) And i have personally worked with young Indians, who were nice, who were educated, but knew NOTHING about the job they were doing. I’ve also met ones that are highly qualified, who were making janitor wages. And with Covid, there are 10’s of millions of Americans out of work. As well American’s wages, Consultant Wages are lowered due to the competition of unqualified workers who will work for nothing and all live in the same apt. where us Americans don’t want to live with 20 other people while traveling to another state to work for a company in need.
    And let me add another point that i’ve learned, Indians are not all geniuses, they are in fact, lazy, they enjoy taking walks outside around the building 3-4 times/day, and are more concerned when lunch is, than when work is due. They balk at being asked to do more than 1 task at a time, when American workers are doing 10 things at once.
    Why do liberals and liberal judges seem so set on ruining our country?!

  8. It’s way past time for President Trump to ignore unconstitutional decrees from unelected, unaccountable, leftist judges. What is the US, a regime of black robed dictators?
    Oh, and that headline…..no bias there, right, Nicky?

  9. Yousef Mellem

    Just another case of a Leftist judge legislating from the bench. If Congress gives the Executive Branch absolute power to set immigration policy then it is not for some politically motivated judge to rule on. Surely, it will be overturned. Also, I read nowhere in the article about an injunction, therefore the Presidents policy will continue to be in force until the final appeal is adjudicated.

    As for the people in H1B visas from India, there are good and bad. Some are highly competent and some are totally incompetent. I have seen instances where an Indian contractor totally relied on someone over the phone to get their job done. I have also had to clean up garbage code.

    Other areas that have been taken over by Indian companies are recruiting and contract agencies.

    When the government sold us out with trade agreements like NAFTA their promise was that American workers would be trained for jobs in the service industry economy. They failed to disclose that they would allow substandard wage competition from foreign workers.

    I have been an independent contractor for more than twenty five years yet my rate is virtually the same as it was in 1995. Big companies like Apple, Microsoft, Google, G. M. , Ford, Chrysler, etc. lobby furiously for more and more H1B visas to increase their profits. If the law allows it then the problem
    lies with the lawmakers. I’m sure they get paid to legislate in favor of their biggest “donors”. They are part the Deep State corruption that President Trump is working to rid our government of. Thank God for President Trump, the only billionaire who truly cares for America and what it was before the Leftist politicians like Carter, the Clintons and Bushes and Obama all but destroyed our country for personal power and financial gain.

  10. I’ve been unemployed most of my adult life, with a BS degree in computer science. I think we need to hold vigil on this judge guy, just follow him around and let him Know that we exist and we care very much about what he did. That alone should be enough. =\

  11. There are supposed to be three branches to our government, and Presidential powers shouldn’t be required in order to enact common sense laws regarding visas. Unfortunately the Progressive Party (formerly known as the Democrats) has long used the Judicial Branch to enforce or negate rulings that they otherwise cannot pass through the people-elected Legislative branch as an end around the people’s will.

    Outside of large tech corporations using the H-1B laws to cut labor costs and enhance their bottom lines, I can’t imagine that the average working citizen would possibly be in favor of allowing foreign labor forces to take jobs from qualified Americans. This is no different than the shutting of factories in America a decade ago and utilizing a Chinese labor force to produce all kinds of goods, even pharmaceuticals, which has come back to bite America in the butt during this COVID epidemic.

    For all of the Progressives on the website that are actually reveling in qualified Americans losing out on jobs to cheap foreign labor just so they can see Trump frustrated in his efforts, shame on you. Grab a pack of donuts, go back downstairs to Mommy’s basement, and fire up your Sony Playstation. The rest of us working stiffs will keep plugging away at getting jobs and keeping our economy going.

  12. This is ridiculous, it will be appealed to the Supreme Court. Probably some Obama activist hold over made the ruling with lobbyists in Congress help. This is one of the reasons Trump will steam roll these corrupt socialist nut jobs. America First!

  13. There are indian employment recruiter scammers that hassled you about a job over email/phone to get your private info so they can use it to extend their immigration status and also pass it around to re-use it among themselves. I didn’t know that until a lady told me her husband that worked in google had seen that happen. I started to become suspicious when for 3 years I would get waves and waves of emails/phone calls from people with hindu names claiming to be an employment recuiter with job title and address in the USA. Offering me this attractive job with a silicon valley company. And at times there would be up to 5 of them jumping at me at the same time. They ask for your private info such as last four digits of your social security number, full driver’s license number, passport number, your signature and resume. Then they disappear and you never hear from them again. When a lady told me about their employment scams, I began to trace their email when they would continue to seen me job offers and found them all in india. I traced one who was at a passport/jewelry store in india. I confronted him over the phone when he tried to offer me a job and asked him why is he in india and told him where he is at. He replied that he works offshore, but his title in the email says he is in New Jersey. These guys are professional liars that have all kinds of ways to get your private info. I saw a comment in a post that they use their employment recruiter scams to run a background check on you that way to get your full private info.

  14. The H1b holders have the option of working in their home country and also in the US.
    As a US citizen, I do not have the option of working in other countries – and since this is my home country the government should be making sure my needs are met.
    So simple and easy.
    I’m sorry for the people using H1b visas who are so unhappy with their homeland that they are complaining about having to leave the US.
    In the US we fought, and continue to fight, for what we want to make things better – these people using H1b visas should go home and do the same.
    We will all be better for that.

  15. I’m not a Trump supporter, but a means of ensuring that Americans are taken care of with regards to IT jobs in the USA has to be a priority. Incentives need to be put in place to ensure that tech companies see this as one of their primary objectives.

  16. harpsponge

    hahaha its so amazing to see that people are so far from reality and blaming that h1bs are not good and taking away american citizen’s jobs. No offense but new graduates dont want to put in work or work extended hours. We have been looking for salesforce professionals and have hired many new graduates and when we go for hiring to their universities, they want all the facilities like apple and facebook, no extended hours and a big pay. Graduates who get hired are being trained by us i.e. H1b’s and even after couple of years they dont learn much. Just have a graduate degree or certificates doesn’t mean that they are good. Analytical and Logical skills are needed.

    • Its time we talked how the so called labour how it skills itself and if these ar the US standards for meeting the H1B criteria.
      The story begins here and this well known amongst the Indian mates how they find a door step to coming to US, EU or the UK.
      The labour imported in US acquires a training from some school who do not meet basic standards of training, history, experience or known to be an elite institution or accredited in any way. You could do your training in such a school for 1 month or less and buy a degree from a university and show an experience of a longer period to qualify and the best thing is you dont need speak good english.
      This is the imported labour by companies who looking cheaply to get their jobs done. An American, European or any oher country with standards will go through a proper procedure by actually spending a lot of money and spending the years of education and not faking it. In EU we have from the jobcenter programmes which finance courses through accredited institutions and not just any school. What you expect from such labour on one hand high standards which will reflect the quality work if you came from a elite university with high standards. Thats why we dont have in every corner MIT or NIT and the quality of education is not acquired by anybody but the best. We have today, unlike in the 80s, the best came to US, now, majorly, the worse labour enfilterated in US workforce and the main reason the big companies, just want to increase their profits , majorly, instead hiring high profiled candidates or better experienced or qualified. Its the Global Companies destroying the market not only in US but around the world as they have their affliliates everywhere and move the labour doing internal replacements.
      Is it fair to the local workers because they have gone through honest means and acquired the real experience and spent money in their education and deserve a position.
      We need revamp the whole process who needs to come to US to work whether be H1B or L1 or…
      Its the upcoming government policy which shall decide who it wants to give weight to, the multinationals or the US workers.
      Based on this will decide if to tighten H1B regulations establishing standards and design a new programme or just keep it going and overlooking the mess.

  17. All you people commenting against Indians that they are not smart. I tell you what , I am Indian currently working as developer in USA. My company hired many developers and IT from USA who had experience of 6-7 years. My expectation was these guys are genius. After few months I came to know that they are better speakers but they weren’t great developers. Most want to leave work very early and come very late where I worked my ass off even after reaching home. Only reason big companies don’t like US workers because they want big pay less work. Moreover now all companies already moved job to abroad banning H1B will not effect much. First fight against companies who moved job abroad then fight for h1B. Stop blaming Indians for everything. Big companies rather train Indians than hiring big fat guy who does nothing other than talking. Chopsy!!

    • More work less pay for you then! What do corporations want? More work less pay! Self-interest. Why would a worker not want to have as much pay for as little work as possible(self-interest)? It is when the Government steps in to benefit corporations over workers(employees) that people begin to get upset. I am not going to lose sleep over Apple(a company that uses slaves overseas) having to pay it’s employees a fair(market) wage.

    • All these corporate offices up and down the peninsula? A large part of employment is in the administration area like Customer Service, Billing, Accounting Clerks, Computer Input. Those are not highly skilled jobs but they still use people from india with H1B visas right????

      Don’t give me that you work harder than us locals! I never missed a day, never take a day off and I was always willing to work overtime. But the thing is with overtime, you have to have authorization to work overtime from the supervisor. These administration type of jobs are entry level for a recent college graduate to get in and get experience, confidence. As well as for high school graduates looking for a career path and can also get experience and see what it is like through entry level administration jobs. But why bring in people from India with H1b visas to do the job when the locals could fill those jobs? Also the H1b people want to extend work visas to their spouses. So what happens when your H1b visa expires? Scam people posing as fake indian employer recruiters hassling people by email and phone to get their private info, disappear. Then use it to extend their stay and reuse peoples private info among themselves?

  18. What we are also talking about is corporations having complete control over the lives of it’s workers. H1b’s are not allowed to change companies at will. This is sort of Unamerican to have a worker that can only work for one company by law. Sounds like SLAV_RY. This benefits nobody. If I am wrong, feel free to explain where.

  19. I never see Indians coming here to take your Blue color Jobs and they are not Cheap at all!
    People Not happy with H1b Visa and Calling Indians are Scammers Do this simple experiment.
    Go to Indeed and type “Java” in search and location “united states”, 50,000 Job will appear , Many of the job profile has a clause “We do not sponsor H1B visa ” . Do the same in Glassdoor , 58,000 Job will appear.
    search “Internal Medicines” -30000 Doctors job will appear
    again search – CNA – 86000 Nurse Job will appear
    ( I dont think all of this job vacancy figures are exactly correct , there may be more vacancies)
    If you Say all of your jobs are gone because of Indians, why these Vacancies still exist in US?

    • Explain to me why there was a case where a customer service team was replaced by people from India?

      I worked many contract jobs up and down the peninsula at companies of silicon valley. Financial, Tech, Medical corporate offices through legitimate employment agencies that are local in the peninsula. The companies that hire us by contract save money by not having to pay medical insurance. I am a local. Born, schooled and raised here.

      But now the entry level jobs in corporate offices are going to people from India. Those are not blue collar jobs. Those are entry level semi-skilled jobs that is good for recent graduates or other locals who need an entry level job. Before my contract starts I study the trainining material and show up prepared on the first day. While the others keep having to ask questions on how to do a task.

      Speaking of climate change? India is one of the most polluted countries on earth adding junk to the skies and contributing to the green house effect. Check out how their cities are always in the top 10 for most pollution. None of the left wing ever pressure the most polluted countries on earth to do something about their situation when they speak of climate change.

      https://www.iqair.com/world-air-quality

      I hope the winds don’t blow that pollution across the pacific ocean towards the west coast.

  20. All, the above discussion is worthless, focusing on Indians, when gradually China is taking over major Tier 1 USA companies in their control. And when you investigate deeper you will be surprised to found that 60% of these company employees are Chinese, 10% Indian, 20% American, and the remaining 10% other nationalities. I have been working in the Semiconductor industry and not the IT software, and for the last 10 years I worked with those responsible for leading the American economy and to my surprise, I never found an Indian or American seating in the USA whom I am reporting to; all teams were governed by Chinese employees from top to bottom hierarchy. And, I keenly notice first Chinese businessman put in money in American companies than nominate CEOs and directors, etc. at a higher position and gradually and quietly they bring in their citizens strategic nepotism. And not to forget Indian mentality is always pulling the legs of own people i.e Indians themselves, whereas China’s citizens do vice versa they support and pull each other. In the last decade, Chinese citizens have acquired 70% of business in America which was developed by Americans and Indians together since the second world war and are taking positions of the richest businessman in America. Instead of being prejudiced only over Indians, it is more important for Americans to protect their business and economy first, and hence the nation. Starting from the history of red Indians to today, Indians always had worked as labor what they are doing even today but Chinese works cleverly to become a ruler.