NEW DELHI, Sep 18: An appeal challenging the presidential proclamation barring foreign nationals on H-1B from entering the United States till the end of the current year, has been turned down by the US District Court for the District of Columbia.
The appeal was filed by 169 non-immigrant Indians working in the US, who had travelled to India for various reasons and are now stuck in their homeland requiring fresh visa to return to the US. Incidentally, the appeal was struck down an Indian-American federal judge Amit P Mehta.
The presidential proclamation was issued by Donald Trump on June 22 suspending the entry of foreign nationals on H-1B specialty occupation visa till January 1, 2021.
Under the US rule, the H-1B visa is a non-immigrant visa that allows US companies to employ foreign workers in speciality occupations that require theoretical or technical expertise. The technology companies depend on it to hire tens of thousands of employees each year from countries like India and China.
US District Judge Amit P Mehta in his order on Wednesday said Indian citizens, who are now trapped abroad during trips to India when borders closed, were unlikely to win their case contesting the travel ban proclamation of Trump.
The 169 Indian nationals in their lawsuit had sought an order directing the Secretary of State and the United States consulates “to process, adjudicate, and render final decisions on Plaintiffs’ DS-160 visa applications.” They had also alleged that the US consular offices, acting under the direction of the Secretary of Homeland Security and the Secretary of State, had withheld the adjudication of their visa applications pursuant to the Presidential Proclamation 10052 (dated June 22, 2020).
“But requiring such swift processing would be an exercise in futility when the complainant would remain ineligible to enter the country until January 1, 2021, at the earliest,” Mehta said.
Mehta said such an order would risk diverting limited resources away from visa applicants who were eligible under an exception to the proclamation, and could create substantial confusion for visa recipients attempting to enter the country only to be denied at ports of entry.
Mehta said on the merits, the court had already determined that the Indian nationals who have filed the lawsuit and were stuck in India were “unlikely to succeed on their ultra vires challenge to the proclamation, and are likely to succeed on their Administrative Procedure Act challenge that their suspension of processing their visas pursuant to the Proclamation is arbitrary and capricious.”
The petitioners were Indian nationals who were recently residing in the US in lawful nonimmigrant status under temporary labour petitions approved by the Department of Homeland Security. For various reasons, they travelled to India and now must receive visas to return to the US.
Attorneys for Indian nationals have filed a notice indicating their plans to appeal the ruling to the DC Circuit.
(Manas Dasgupta)