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Photo of Department of Justice on Wikimedia Commons.
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A lawyer for the US Department of Justice (DoJ) recently announced that Trump’s renewed US work visa ban would ‘remain for now’. The lawyer told a federal judge in San Francisco: “The DoJ will continue to defend former President Trump’s ban on many visa holders entering the US amid COVID-19 until it is withdrawn by President Joe Biden.”
Renewing the controversial US work visa ban until March 31 was one of Donald Trump’s last acts in office as his turbulent presidency was brought to an end on January 20. Trump left the White House with a whimper, despite fears that he would refuse to vacate the building.
In a Zoom hearing, DoJ lawyer Valerie Smith told US District Judge Richard Seeborg that the Biden administration is reviewing Trump’s US work visa ban and that the DoJ would continue to oppose legal challenges to the executive order.
Preliminary injunction
Judge Seeborg was reportedly considering motions calling for a preliminary injunction and class certification in a November lawsuit filed by about 250 applicants for US work visas – or derivative visas for family members – who are challenging the ban imposed by Trump.
Ms Smith asked Judge Seeborg to delay a decision on whether to issue an injunction that would force the US Department of State to reinstate the processing of pending US visa applications. The DoJ said that it would file a motion to have the case declared moot, should Biden rescind the ban.
However, Judge Seeborg determined that this would be ‘unfair to the plaintiffs’ due to uncertainty over the time it would take President Biden to make a decision.
US visas affected
Issued in April 2020, Trump’s executive order banning the processing of new US work visa applications affects the H1B visa category, L1A and L1B visa category, J1 visas and derivative visas for the family members of those individuals.
Trump said the ban was necessary due to the ‘lack of sufficient alternative means to protect unemployed Americans from the threat of competition for scarce jobs’ amid the coronavirus pandemic.
Lawyers representing the plaintiffs challenging the ban have argued that Trump failed to specify ‘sufficient basis for the ban’, therefore rendering it unlawful under the Immigration and Nationality Act.
Judge Seeborg was told that the ban is denying entry to foreign workers who already have valid US visas because their employers were unable to hire a suitable American candidate, which contradicts Trump’s argument that the entry ban will protect US workers.
However, Ms Smith argued that even if the ban were rescinded, many US consulates would be unable to process US visa applications because of the ongoing coronavirus pandemic.
Exceeded Trump’s authority
In October 2020, following a lawsuit filed by the US Chamber of Commerce and other business groups, US District Judge Jeffrey White blocked Trump’s ban from being enforced on the grounds that it exceeded presidential authority.
White’s injunction applies to the thousands of businesses that are members of the plaintiff groups.
On December 31, 2020 the 9th US Circuit Court of Appeals upheld an executive order signed by Trump banning immigrants from entering the US who don’t have health insurance. Seeborg sought evidence on the impact that this has had on the US work visa ban.
However, the 9th Circuit panel stated that ‘courts have very limited authority to question the reasoning behind a presidential proclamation that restricts immigration to the US.’
Ms Smith said that until the 9th Circuit or the US Supreme Court decides otherwise, the US work visa ban will remain.
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