Complete Guide to the H1B Travel Ban Lawsuit

On June 22, 2020, President Trump made an executive order which changed thousands of visa holders and potential nonimmigrant workers’ plans for the rest of 2020. He banned nonimmigrant visa holders from entering the U.S. and stopped any new visas from being issued. 

As if the current coronavirus pandemic isn’t bad enough, this H1B visa ban has had severe consequences on nonimmigrant families. Fortunately, 174 Indians have decided to take matters into their own hands and have launched an H1B travel ban lawsuit. 

What is the H1B travel ban lawsuit about, and is there any hope for it to succeed? Could it change the dire situation so many nonimmigrant families are facing? Let’s take a look.  

What is the 2020 H1B Visa Ban? 

On June 22, 2020, President Trump issued a presidential proclamation (or executive order) that suspended foreign nationals on H1B, L, H2B, or J visas from entering the U.S. It also froze new green cards and H1B visas from being issued.

The H1B visa ban is currently set to last until December but can be extended.

President Trump says the reason for the executive order is to protect 525,000 American jobs. Coronavirus and the economic turmoil left in its wake did not overlook the U.S. The unemployment rate reached a record 14.7% in April 2020. Unfortunately, even though this is stated as the reason for the ban, little economic data supports the point. 

From a legal perspective, the proclamation also overturns important provisions in U.S. immigration law. This is what the H1B travel ban lawsuit is now challenging. 

Why is No New H1B Visas Being Issued? 

Under the current H1B visa and travel ban, now new H1B visas are allowed to be issued. This and other restrictions are being challenged in the H1B travel ban lawsuit.

What is the H1B Visa Ban Lawsuit? 

In response to President Trump’s executive order banning new H1B visas and nonimmigrant visa holders from entering the U.S., 174 Indian nationals have filed a lawsuit in the U.S. District Courts of Columbia. This includes a few minors who are H4 dependent visa beneficiaries. 

The purpose of the lawsuit is to have the entry bans declared as unlawful and not in keeping with immigration laws laid down by Congress. 

President Trump stated the purpose of his executive order is to protect American jobs in a time when unemployment is on the rise. This lawsuit is challenging exactly the basis of this statement. 

According to the plaintiffs, nonimmigrants who are in the U.S. on H, L, or J visas aren’t actually a threat to the U.S. workforces. The reason is these visas are granted lawfully under immigration laws. These immigration laws already keep the interest of the U.S. workforce in mind. Congress has already specified the rules under which H1B visa holders are allowed to work in the U.S. Plus, its decisions and regulations have been made balancing the interests of U.S. workers with U.S. employers. One of the protections that has already been built-in, for example, is the requirement for H1B visa holders to go through the H1B labor certification process with the Department of Labor. U.S. employers also have to prove no U.S. workers were able or willing to do the job the H1B visa holder will be taking. 

Many people affected by the H1B visa and travel ban are also, in fact, dependents and not even workers. This includes many H4 visa holders who don’t work in the U.S. and who are, therefore, not a threat to the U.S. workforce and the American job market. 

Another point the H1B travel ban lawsuit is making is that many H1B visa holders and their H4 dependents were out of the country when the COVID-19 pandemic struck. As a result of the border closures and travel bans, many of these beneficiaries are stuck outside of the U.S. The fact that these visa beneficiaries are being punished for not having a flight is unjust and unlawful. 

Finally, the lawsuit also points out that the ban affects foreign nationals who have been resident in the U.S. for many years on the H1B status and who even have children who are U.S. citizens. Due to the backlogs and long wait for a green card, they are stuck in H1B status and don’t move to green card status. But they’ve been part of the U.S. for years and have created a life and home here. 

Although President Trump is posing this as an economic decision on the surface, in essence, the H1B travel ban lawsuit is seeing it as a ban on nonimmigrants. 

The H1B travel ban lawsuit isn’t the only lawsuit on the horizon. Several industry groups, including prominent tech firms, are being supported by the American Immigration Lawyers Association and are preparing to file further lawsuits. These lawsuits will probably ask for restraining orders on the entry bans and will seek to counter Trump’s executive order. 

Is it Possible the H1B Visa Ban will Be Reversed? 

Firstly, is President Trump even allowed to make an executive order like this? 

Section 212(f) of the Immigration and Nationality Act (INA) gives the U.S. President the authority to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants,” or “impose on the entry of aliens any restrictions he may deem to be appropriate,” whenever he believes such entry would be “detrimental to the interests of the United States,” for “such period as he shall deem necessary.” 

On the face of it, it seems he can. But some people argue section 212(f) does not give President Trump the power to override specific parts of INA. According to the H1B travel ban lawsuit, Trump’s proclamation overreaches his powers, overrides the detailed statutory regime in place, and undermines Congress’s decisions, which already regulate immigration in a way that protects U.S. workers. 

So, unfortunately, the answer isn’t clear yet. But there is still hope for the H1B travel ban lawsuit in light of other recent successful lawsuits. 

Harvard, Massachusetts Institute of Technology, and 17 U.S. States recently filed a lawsuit against a new policy by Immigration and Customs Enforcement and the Department of Homeland Security. The policy required F1 students to attend in-person classes to remain in the U.S. and not be deported. They won the case, and the policy was withdrawn within 8 days. 

The U.S. Supreme Court also recently ruled in favor of the DACA program. Despite Trump’s attempts to cancel the program, Dreamers can still live and work in the U.S. as permanent residents, thanks to the Supreme Court ruling. 

Only time will tell what the courts decide on the H1B travel ban lawsuit and whether they will overrule President Trump’s executive order.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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