Mint explainer: What's next for H-1B visas? A lawsuit in the US could stymie Trump's plans
A multi-party lawsuit challenges Donald Trump's move to hike H-1B visa fees for new applicants. Mint explains the legal battle.
BENGALURU : US President Donald Trump’s decision to raise the H-1B visa fee for new applicants tenfold to $100,000 has met with a legal hurdle. On 23 September, at least nine complainants, including individuals and employee unions, filed a lawsuit against the presidential proclamation through seven law firms, which is touted as one of the biggest challenges. Mint unpacks what comes next.
What is the lawsuit all about?
Nine complainants, including employee unions from sectors such as healthcare, education, agriculture, automobile, and aerospace, filed a lawsuit through seven law firms in a California district court against Trump’s decision, requesting that the court deem the proclamation unlawful and process H-1B visas in accordance with existing laws. The complainants added that the President exercised power he does not possess and that the legal right to impose or deduct visa-related fees stood only with the US Congress.
What happens next?
The District Court of Northern California, which is essentially a district court based in San Francisco, will hear the case, and the government will send its representatives. Both sides will be heard, and an out-of-court resolution can be sought. Either side can appeal to the higher court. “Like the injunction granted against Trump's use of troops in Oregon, lower courts are mostly ruling against Trump, but he is winning on appeal at a Supreme Court that has utterly surrendered its independence to him," said Russell A. Stamets, partner at New Delhi-based law firm Circle of Counsels.
How is the US legal system structured?
The US legal system has three main levels of courts—district courts, courts of appeals, and the Supreme Court—that handle cases involving federal law, treaties, and disputes between states. Complaints of such nature are first filed in one of the 94 US district courts. In the event of disagreements, parties on either side can file an appeal with a federal circuit court, also known as the US Court of Appeals. There are 13 such circuit courts. In the event of further disagreements and conflicting circuit court decisions, an appeal can be filed with the Supreme Court, which is not obligated to hear the appeal.
What do the parties do if they lose in the lower courts?
If either party loses a case in a circuit court, they can petition the US Supreme Court to review the decision by requesting a writ of certiorari—an order directing the lower court to send up the case records for review. Once the Supreme Court receives a petition for such an order, it reviews the petition and grants a request only if it believes that a significant legal issue is to be resolved. If the petition is denied, the lower court’s decision remains final and binding.
What happens to the H-1B proclamation if it is upheld?
If the H-1B proclamation is upheld, the complainants can appeal to the circuit courts and then to the Supreme Court. However, if the court orders it to be reversed, there is a high chance the order can be barred only in the state where a case against it was filed. Nationwide injunctions, which allowed courts to bind injunctions beyond the state in which they heard a case, are becoming rare. In June, the US Supreme Court ruled that district courts exercise excessive authority when issuing injunctions, thereby curtailing their ability to issue nationwide orders. Last week, a federal judge in Oregon granted a temporary restraining order, blocking the Trump administration from deploying the National Guard into Portland. This comes after the President announced he would send in troops to protect what he calls a “war-ravaged" city.
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