Judge Blocks President's Visa Ban for High-Skilled Workers and Others

Author: David B. Weisenfeld, XpertHR Legal Editor

October 2, 2020

President Trump exceeded his authority in suspending work visas through the end of 2020 for hundreds of thousands of high-skilled foreign workers seeking jobs in the US, a federal judge ruled yesterday.

While the court's order applies only to certain plaintiff organizations, these organizations represent hundreds of thousands of US businesses - so the ruling will have a significant impact on the hiring of workers from overseas.

The President had cited the extraordinary circumstances of economic contraction resulting from the coronavirus (COVID-19) outbreak to justify his executive order, writing, "Certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers."

But in blocking implementation of the executive order, Northern District of California Judge Jeffrey White called that "patently false." Finding that the order disregarded economic reality, he said, "Without any consideration of the impact on American firms and their business planning, the Proclamation abruptly changed the scope of immigration policy in the United States."

Judge White held that the visa ban would cause irreparable harm for American businesses as a result of the limitation on their ability to hire and retain qualified workers from abroad.

The President's order had suspended through December 31 work visas for a broad range of jobs, including:

  • H-1B tech visas for skilled workers;
  • H-2B seasonal worker visas;
  • H-4 visas for spouses of certain visa holders;
  • J visas for workers who may participate in an intern, trainee, teacher, camp counselor, au pair or summer work travel program; and
  • L visas that permit American companies with global operations to transfer foreign employees to their US offices.

The US Chamber of Commerce, the National Association of Manufacturers and business groups representing Microsoft and Amazon had sued to block the visa restrictions, claiming they would significantly restrict their ability to attract talent.

In siding with the business groups and granting them a preliminary injunction to block further implementation of the order, the court found no relation between the unemployment caused by the pandemic and the visa ban.

Judge White explained, "The statistics regarding pandemic-related unemployment actually indicate that unemployment is concentrated in service occupations and that large numbers of job vacancies remain in the area most affected by the ban, computer operations which require high-skilled workers."