On the Legal Battle Over H-1B Visas Recently Revoked by Executive Order

The timing couldn’t be worse. With significant disruption to normal workforce management operations due to the pandemic, President Donald Trump has added another burden to workforce planning, issuing an executive order suspending the entry of H-1B visa holders into the US. Leveraged by IT companies, manufacturers and others, H-1B visas have been a critical talent channel bringing high-skilled, temporary workers to the US to fill in-demand roles. Even in spite of skyrocketing unemployment, the demand for high-skilled talent remains a challenge for US organizations who have been banding together to push back against this questionably timed (and motivated) executive order.

The National Association of Manufacturers, National Retail Federation and the US Chamber of Commerce filed suit last week against the Department of Homeland Security and the US State Department over the President’s order affecting H-1B and other visas. While the move by the Trump Administration would seem to protect job availability for American workers facing very high levels of unemployment, the reality is, the majority of those displaced by the pandemic are not those in high-skilled positions. In fact, the surging, COVID-driven demand for IT and information security talent, healthcare workers and supply chain professionals was straining the available talent pools in the US before the order effectively shutting off the spigot of talent from abroad.

The suit brought forward by a national network of tech leaders, Intrax (a cultural exchange company) and Technet (a bipartisan network of technology CEOs and senior executives) was filed in federal court in San Francisco on July 21. The argument at the center of the lawsuit suggests that President Trump exceeded his authority when suspending the entry of certain foreign workers into the United States. The executive order in question applies to H-1B, H-2B, H-4 and L-1 visas. Calling the president’s proclamation “unlawful” the plaintiffs charge that the order “exceeds statutory and constitutional authority of the executive” and that federal departments and officials are not legally authorized to implement or enforce it.

Resting on the clearly defined separation of powers encoded in the US Constitution, plantiffs claim the order “takes a sledgehammer to the statutes Congress enacted with respect to high-skilled and temporary worker immigration,” according to the plaintiffs. “While the president’s powers under Section 212(f) are broad, they do not authorize the president to nullify duly enacted statutory provisions.”

US Chamber of Commerce CEO, Thomas Donohue said in a statement, “Our lawsuit seeks to overturn these sweeping and unlawful immigration restrictions that are an unequivocal ‘not welcome’ sign to the engineers, executives, IT experts, doctors, nurses, and other critical workers who help drive the American economy.”

The arrayed groups bringing the lawsuit dispute the notion that the jobs filled by H-1B and similar visa holders will be easily filled by those among the swelling ranks of the unemployed here in the US where the bulk of job losses have been in service, hospitality, entertainment and tourism industries – none of which hold skills easily transferrable to roles in healthcare, technology or skilled manufacturing. “Left in place, these restrictions will push investment abroad, inhibit economic growth and reduce job creation,” said Donohue.

Whether the lawsuit is ultimately successful or not, American organizations should be taking aggressive steps to find alternative strategies for keeping their contingent workforces well-provisioned. If your organization needs guidance on innovative methods for accomplishing this goal in difficult times, talk to a nextSource specialist today.

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