An Indian American judge Sept. 16 denied preliminary relief to a group of H-1B and H-4 workers from India who were seeking to return to the U.S. despite a ban issued earlier this summer by President Donald Trump.
The case was filed July 14 by attorney Bradley Banias, who represented Chandan Panda and 168 other Indian nationals who were suing acting Department of Homeland Secretary Chad Wolf. The plaintiffs were all residing and working in the U.S., but for various reasons traveled back to India and are now essentially stuck there because of Trump’s ban.
Wolf is undergoing a Senate confirmation this week to be named permanent DHS secretary.
On June 22, Trump issued a proclamation temporarily suspending H-1B workers and their H-4 spouses from entering the U.S., until at least Dec. 31. Consulates in India are banned from issuing travel documents to new H-1B visa holders who would enter the U.S. for the first time, and from H-1B and H-4 holders who are outside the U.S. Trump’s proclamation does not affect workers who remain in the U.S.
The president issued the order stating that American workers were having to compete with workers from abroad amid the COVID-19 pandemic and unemployment levels reaching 16 percent at the time.
However, the tech sector, which employs the majority of H-1B workers, saw no major fall-out of employment amid the pandemic. Unemployment levels in the sector dropped slightly from 3 percent in January to 2.5 percent in May.
Indian American immigration attorney Cyrus Mehta told India-West in June that the ban was “pernicious” and could potentially be used against foreign workers who are in the U.S.
“The president is staying true to his creed to shut down the H-1B program, and he has found a way to do it now, using the pandemic as an excuse,” he stated. “This is going to hurt the economy rather than help it: tech workers have faced no higher levels of unemployment than other sectors,” he said.
The plaintiffs argued in their lawsuit that the president’s ban was “arbitrary and capricious,” and unlawfully banned them from employment and reuniting with their families. They also claimed to have suffered significant emotional and economic distress and the inability to tend to their property in the U.S. One plaintiff, Harbir Bhatia, who had studied and worked in the U.S., had applied for an H-1B visa last December, but no movement occurred on her case, despite her employer filing the requisite documents.
In July, she was told that her case would not be acted upon because of Trump’s ban, also known as Proclamation 10052. Bhatia said in the suit that she “experienced severe mental and emotional strain, has lost weight, and worries that she will be unable to help her father repay her student loans.”
They also argued that the ban violated the Administrative Procedures Act, the process by which federal agencies develop and issue regulations. Trump issued his ban as an executive order.
The plaintiffs asked the court to issue a temporary injunction on the ban, and the ability to then get visas within 14 days.
But Judge Amit Mehta, of the U.S. District Court for the District of Columbia, said the plaintiffs had not sufficiently established their case. In his ruling, the Obama appointee stated: “Plaintiffs have not established that injunctive relief would prevent their irreparable harm or that an injunction would be in the public interest.”
Mehta ruled that the plaintiffs potentially have sufficient evidence to bring their case to a higher court, but — because they were unlikely to succeed — a temporary injunction on Trump’s ban was unnecessary.
The plaintiffs have filed an appeal with the DC Court of Appeals.