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.
