Editorial: Court checkmates Trump on H-1B

Donald Trump faced yet another pushback from the judiciary, which struck down the US President’s $100,000 application fee for H-1B visas, ruling he lacked the required authority.

While the news may be music to the ears of Indian IT companies and visa aspirants, the real import of the verdict is that the American judiciary retains a degree of independence and autonomy to rein in Trump’s executive dominance to a certain extent.

When apex courts in certain countries do not muster the courage to restrain strongman-led governments, it was heartening to see US District Judge Leo Sorokin declare that the “President had no power or delegated authority to impose a tax on H-1B petitions”. The fact that he is an Obama administration appointee or that the petitioners included a bunch of Democratic attorneys general does not diminish the significance of the verdict, given the unprecedented pressure the judiciary has been subjected to in recent times.

Even in the past, the judiciary has blocked Trump’s decisions, among other things, on issues relating to tariffs, immigration and the renaming of the Kennedy Centre, which evoked a volley of vitriolic attacks branding the system as rigged. When the US Supreme Court ruled that lower court judges have a limited ability to block presidential orders, Trump hailed it as a “monumental victory for the constitution, the separation of powers and the rule of law" and branded judges who gave critical verdicts as “radical left” and a grave threat to democracy.

Likewise, in Trump vs. United States, the Supreme Court ruled that presidents possess absolute criminal immunity for actions within their core constitutional powers. Be that as it may, however, in the present instance, the Trump administration is likely to prefer an appeal, and the White House appears to be quite confident that the district judge’s order will be reversed. Moreover, in furtherance of Trump’s America First agenda, the administration’s Justice Department will find ways and means to continue to make it difficult for immigrants to get visas.

There is an element of truth in the administration's view that the H-1B system is being misused, but certainly not to the extent claimed by it. In a recent case, the US Justice Department has taken action against 17 naturalised citizens who had obtained citizenship through fraud, concealment or misrepresentation. This included an Indian-born CEO who is accused of filing fraudulent H-1B visa applications using forged signatures and fabricated documents.

Even otherwise, the administration’s notorious whimsical policy tightening and arbitrary decisions relating to an enhanced vetting process or a new policy designed ostensibly to favour higher-skilled workers are dissuading potential visa aspirants, as is evident in the significant decline in visa applications by students and professionals. Already, many professionals are looking at other alternatives, such as Canada and Europe, and Indian companies have been either hiring local talent or moving many functions to remote mode.

For now, the order offers a glimmer of hope to Indian professionals who are among the biggest beneficiaries of the H-1B visa system. As much as it is seen as a boon to Indians, the Trump administration needs to reconcile itself to the fact that the US needs these professionals in critical sectors that give it an edge in innovation and sustaining competitiveness vis-à-vis China and other nations.