A petition for processing of their visa applications & consequent re-entry into the United States, filed by 169 Indians & their dependants who are stuck in India, owing to the temporary ban imposed by President Trump, has been turned down by the Columbia District Court. The news agency learns that an appeal will be filed against this order, which was passed by Judge Amit P. Mehta, on Sept 16.

The plaintiffs were residing in the United States on H-1B visas or dependant visas (eg: spouses of the primary H-1B visa holders), they had travelled to India for various reasons & needed visas to return. A visa stamp from the consulate office is required to enter or even re-enter the United States. 

Owing to President Trump’s Proclamation on June 22 that barred certain foreign nationals including H-1Bs not having visa stamps from entry into the US, until at least Dec end, the visa applications of these plaintiffs (in Form DS-160) were not being adjudicated (processed & finalised) by the US Consulate offices.

The plaintiffs sought a preliminary injunction from the application of the Proclamation on the grounds that it was ultra vires. They also submitted in their lawsuit, that withholding the adjudication of their visa applications is arbitrary & capricious in violation of the Administrative Procedure Act (APA). Further, the suspension of their approved non-immigrant labour petitions also violated APA’s procedural requirements, they submitted. 

One of the cases highlighted in the order is the plea of an individual who had spent six years studying & working in the US, & who owing to the Proclamation was stuck in India. It was submitted that she was at the risk of losing her job, she had to pay to store her belongings in the US - as she had travelled to India only with a set of clothes, & she continued to pay for various US expenses such as phone bills. As owing to the Proclamation her visa application was not being adjudicated, she was under severe mental & emotional stress & worried about her inability to repay her student loans.

Cyrus D. Mehta, New York-based immigration attorney, told the news agency, “Unfortunately, Judge Mehta has upheld President Trump’s authority under the Immigration & Nationality Act 212(f) to ban H-1B visa holders. Although he agreed that the US State Department ought to be processing their visas, he did not order them to do so through this emergency request for a preliminary injunction as the H-1B visa holders would anyway be unable to enter the US under Trump’s ban.” 

Judge Mehta held, “The plaintiffs are unlikely to succeed on their challenge to the Proclamation. So, the ban on their entry will remain, regardless of whether they succeed as regards their APA challenges as regards withholding of the adjudication of their visa applications.” Meanwhile, a verdict of another US Court on the issue of the travel ban is awaited.

Post the June Proclamation, some relaxations have been made. In mid-Aug, the US Department of State, in its updated guidelines, permitted foreign nationals to seek an H-1B visa to return to the US to resume their previously held employment. In addition, individuals including those in the information technology sector may also qualify for entry to the US under ‘national interest exception’ norms, subject to meeting certain conditions. 

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