• Wednesday, May 29, 2024


US court rejects appeal against Trump’s H-1B visa ban

By: Pramod Kumar

AN appeal by 169 Indian citizens against president Trump’s temporary H-1B visa ban has faced a set back in a US court.

An Indian-American federal judge has rejected an appeal by Indians against the proclamation that barred foreign nationals on H-1B specialty occupation visa from entering the US till 2020-end.

US district judge Amit P Mehta of the district court of Columbia in his order on Wednesday(16) said that Indian citizens, who are now trapped abroad during trips to India when borders were closed, are unlikely to win their case contesting the travel ban proclamation of Trump.

The H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in specialty occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.

The 169 Indian nationals in their lawsuit had sought an order directing the secretary of state and the US consulates to process, adjudicate, and render final decisions on Plaintiffs’ DS-160 visa applications.

“Requiring such swift processing would be an exercise in futility when the complainant would remain ineligible to enter the country until January 1, 2021, at the earliest,” Mehta said.

Such an order would risk diverting limited resources away from visa applicants who are eligible under an exception to the proclamation, and could create substantial confusion for visa recipients attempting to enter the country only to be denied at ports of entry, he said.

Mehta said that on the merits, the court has already determined that the Indian nationals who have filed the lawsuit and are stuck in India are unlikely to succeed on their ultra vires challenge to the proclamation, and are likely to succeed on their Administrative Procedure Act challenge that their suspension of processing their visas pursuant to the Proclamation is arbitrary and capricious.

The lawsuit was filed by Indian nationals who were recently residing in the US in lawful non-immigrant status under temporary labour petitions approved by the department of homeland security.

For various reasons, they travelled to India and now must receive visas to return to the US. Indian nationals on H-1B visas alleged that the US consular offices, acting under the direction of the secretary of homeland security and the secretary of state, has withheld the adjudication of their visa applications pursuant to the president’s recently issued Presidential Proclamation 10052 (dated June 22, 2020).

It suspended the entry of foreign nationals within certain categories of non-immigrant visas. In his 11-page order, Judge Mehta noted that the visa hopefuls are likely to convince the court that the Trump administration must continue processing their visas despite the entry restrictions.

Attorneys for Indian nationals have filed a notice indicating their plans to appeal the ruling to the DC Circuit.

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