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Comments by Sanwar Ali:
It seems that Indian-American Judge Mehta thinks that this case is without merit. Judges have different views. Another judge may have a very different opinion given exactly the same set of circumstances. Therefore, the success of your case may be primarily based on which judge hears your case. One controversial aspect of the US justice system is that judges are in many cases appointed due to their political views. So they are not necessarily unbiased. Judge Mehta was appointed by Obama so overall probably has a "liberal bias".
Recently we have seen the death of liberal Justice Ruth Bader Ginsburg, who was of Jewish ancestry, on Friday due to complications of metastatic pancreas cancer. She was 87. President Trump says that he will appoint a replacement quickly. Obviously, he will want to appoint a conservative judge to replace a liberal “left wing” justice that had been appointed by Bill Clinton in 1993. As I have mentioned, politics are a very significant factor in the US when it comes to judges. If Trump is successful in appointing a conservative judge to replace Ginsburg this will affect judgments in the highest court in the land for perhaps twenty years or longer. This will inevitably affect immigration policy in future.
An appeal lodged by 169 Indian citizens, which challenged Trump’s ban on H1B visas, has been rejected by an Indian-American federal judge. US District Judge, Amit P Mehta of the US District Court for the District of Columbia, wrote in his 11-page ruling that the Indian citizens were ‘unlikely to win their case’ contesting Trump’s work visa ban.
The Indian citizens lodged the appeal having been left stuck in India when a Trump proclamation that came in to force on June 22 shut US borders to foreign nationals. In their lawsuit, the 169 Indian nationals sought an order directing the US Secretary of State and US consulates to process, adjudicate and decide on the plaintiffs’ DS-160 US visa applications.
Mehta said: “Calling for such swift processing would be ‘an exercise in futility’, given that the complainants would not be eligible to enter the US until at least January 1, 2021 – at the earliest.”
Risk of diverting resources if H1B visa case continues
The US District Judge claimed that pressing ahead with the lawsuit would risk diverting limited resources away for US visa applicants who are eligible for entry to the US under exemptions to Trump’s proclamation. Mehta argued that the lawsuit could cause confusion for US visa recipients attempting to enter the US, only to be refused at the border.
In his ruling, Mehta wrote: “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 presidential proclamation.”
However, it’s understood that the Indian nationals, who had recently been living and working in the US under lawful non-immigrant status, plan to appeal Mehta’s ruling. Now, having left the US for India for a variety of reasons, the Indian nationals require a new US visa to return.
H1B visa processing delays will continue
A number of Indian nationals on H1B visas have accused United States consular offices, which are directed by the US Secretary of Homeland Security and the Secretary of State, of withholding adjudication of their applications because of Trump’s proclamation.
Under the proclamation, foreign nationals are banned from entering the US on certain types of non-immigrant visas, including the H1B, L1 and J1 visas and more.
Mehta did say that the Indian nationals could possibly convince the court that the Trump administration must continue to process their visas, despite the entry ban.
However, he said: “Since they are unlikely to secure an end to those entry bars, requiring the US Department of State to nonetheless process their visa requests would be an exercise in futility.”
News of the refusal to challenge the ban on H1B visas comes at a time when the so-called specialty worker visa is set to become more difficult to obtain.
The US Department of Homeland Security recently submitted a draft regulation to the Office of Management and Budget outlining the restrictions, with the Trump administration making H1B visa reform a top priority.
The OMB is currently reviewing the draft and is said to be in the final stages of its review.
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