Several major U.S. business groups recently sued the Trump administration, seeking to toss new immigration restrictions issued by the White House in a June 22 order, despite the national focus on the COVID-19 pandemic and racially driven protests around the country.
The order, which repeals entire visa categories for temporary workers, specifically freezes new H-1B and H-4 visas, used by technology workers and their families. In addition, L visas for intracompany transfers and most J visas for work- and study-abroad programs are blocked until the end of 2020.
Groups including the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Retail Federation filed their lawsuit in federal court in San Francisco. Its simple thrust is that Trump exceeded his authority.
“Our lawsuit seeks to overturn these sweeping and unlawful immigration restrictions that are an unequivocal ‘not welcome’ sign to the engineers, executives, IT experts, doctors, nurses and other critical workers who help drive the American economy,” Chamber CEO Thomas Donohue wrote in an online statement. “Left in place, these restrictions will push investment abroad, inhibit economic growth and reduce job creation.”
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Nandini Nair, a partner in the Immigration & Naturalization practice group at Greenspoon Marder, in Edison, N.J., explains that the president’s order was purportedly in response to the COVID-19 pandemic. But, she adds, it may not meet the test when it comes to how his power can be used in this specific case.
“The president has great discretion on matters of immigration, and legal precedents have traditionally given him complete and nearly unchecked power to deny entry of foreigners into the United States,” she says, noting that, specifically, Section 212(f) of the Immigration and Nationality Act states that the president has the authority to “suspend the entry of all foreigners or class of foreigners or to impose on their entry any restrictions the president sees fit when he or she finds that their entry to the U.S. would be detrimental to the interests of the country.”
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“The key here is ‘detrimental to the interests of the country,’” Nair says. Is denying entry of guest workers amid the pandemic in the best interests of the country? She says most legal experts would agree that the president would almost certainly win a legal fight involving national security but is an economic justification sufficient standard? The litigation should determine that issue.
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Meantime, Nair says, her firm’s clients have been significantly impacted by the June order, mainly because technology companies who heavily utilize the H-1B program make up the bulk of the firm’s client base.
“Prior to the COVID-19 pandemic, many employers faced challenges in filling positions requiring these specialized skills, particularly in STEM fields, where there are well-documented labor shortages,” she says.
And while the tech sector hasn’t been immune from pandemic-fueled job losses, it’s not been at significant levels, she adds. As a result, there is an ongoing need for foreign talent in these industries, which are facing a legitimate workforce gap.
“It is acknowledged that the program does have flaws and there are abuses in the system, but shutting down the program will not help the economic crisis America is facing; in fact, it will probably add to it,” Nair says. “Many employers are also concerned about continuing to expand their footprint in the U.S. due to the instability and are seriously looking at alternative countries to off-shore the work.”
Finally, Nair says, many H-1B employees are either separated from their spouses and children or worried that, if they do depart the U.S., they will not be able to return. The result? Anxiety for these employees, which can hurt productivity for employers.
“I have had spouses calling, crying because it has been months since they have seen their small children, who are stuck abroad because they will unable to return back to the U.S. and will now be shut out for the rest of year,” she says.
