On June 22^nd, President Trump issued a historic executive order that suspended new work visas and halted hundreds of thousands of foreign workers from seeking employment in the United States. The order specifically targets H-1B high-skilled guestworkers as well as their H-4 spouses waiting for green cards, intracompany transferees on L visas, summer exchange J visa holders, and non-agricultural seasonal H-2B guestworkers, with some exceptions. This proclamation, in extension and expansion of the President’s executive order issued in April, will suspend foreign worker visas until the end of the year. According to the administration’s estimates, 525,000 foreign workers will be prevented from filling American jobs. While Trump’s administration touts this move as a success amid the economic downturn of the 2020 coronavirus, tech leaders have come out in strong opposition against it, claiming that it stifles innovation and reduces American global competitiveness.

However, a more pressing question about the legality of Trump’s work visa freeze has recently come to the spotlight. Like the April proclamation, the President’s administration cited his authority to issue the visa ban under his powers granted under section 212(f) of the Immigration and Nationality Act. The statute allows the President to impose restrictions on which foreign nationals are allowed to enter the country. In specific, 212(f) states that the President has the authority to:

“suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate” (Center for Immigrants’ Law Clinic, PennState Law).

This standard, however, must only be instated when the entry of these immigrants into the United States would be “detrimental to the interests of the United States”. It is not a green flag for the President to prohibit any foreign national at any time he so chooses; rather he must meet the legal standard of America’s national interests being hindered without this new order in place. As Mathew Dunn, co-chair of Kramer Levin Naftalis & Frankel LLP, says, “While the language of the statue gives the president broad power, it doesn’t actually allow him to cut off immigration completely” (Bloomberg Law). In fact, the proclamation has already been challenged by the Director of Federal Litigation at the American Immigration Lawyers Association, Jesse Bless, who argues that the President’s order violates federal immigration and administrative laws.

In essence, President Trump’s new executive order faces legal scrutiny from two critical fronts: 1) whether its enactment truly prevents harm to the national interest and 2) whether it violates federal administrative procedure. From the first angle, it is largely unclear whether barring foreign nationals from obtaining work visas would be within the national interests of the United States; in fact, many tech and business executives have argued against it. Leaders from major organizations such as Amazon, Microsoft, Twitter, Apple, Google, and others have all come out in opposition to Trump’s executive order, claiming that it will derail America’s economic interests in the long-term, not support them. The reality is that U.S. workers are not competing with foreign national workers for high skilled jobs; rather they benefit from the jobs that are created by foreign nationals who have played a significant role in stimulating the growth of the U.S. economy for decades. Thus, Trump’s administration must establish that his proclamation is truly within the national interests of the United States, and not against opposed to it, as several economic models show.

From the second angle, many have challenged President Trump’s new executive order by citing its violation of the Administrative Procedure Act. Most recently, this legislation was in the news because of the Supreme Court’s ruling that denounced Trump’s attempt to end the Obama-era DACA program, in which they ruled his actions were “arbitrary and capricious” while in violation of the Administrative Procedure Act (APA). Essentially, the APA:

“governs the process by which federal agencies develop and issue regulations. It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking. The APA requires most rules to have a 30-day delayed effective date.

In addition to setting forth rulemaking procedures, the APA addresses other agency actions such as issuance of policy statements, licenses, and permits. It also provides standards for judicial review if a person has been adversely affected or aggrieved by an agency action” (EPA).

The law specifically states:

“§ 10 of the APA, 5 USC §§ 701-706, deals with judicial review of administrative agency decisions. Reviewing courts determine whether agency officials acted in compliance with relevant federal statutes and whether the agency’s actions were ‘arbitrary, capricious, or an abuse of discretion’” (Legal Information Institute, Cornell Law School).

Therefore, there is a clear administrative process that any order must face before implementation. However, in Trump’s case, he has repeatedly shown that he is willing to bypass these administrative conducts in order to carry out his policy via unorthodox channels. Now, he is using the advent of the coronavirus, and its impact on the economy, as an opportunity to pursue his rigid immigration policy, which has been on his agenda since his election campaign in 2016. But critics say this executive order, like Trump’s proposal to end DACA, contradicts the APA by being “arbitrary, capricious, or an abuse of discretion”. So, while the section 212(f) statute does grant the President broad authority in restricting immigration, it does not allow him to do so in a manner that forgoes customary administrative procedure.

The reason for this is because Congress has written explicit legislation in the Immigration and Nationality Act detailing the allotted procedures for immigrants coming to the United States. If the President simply ignores all of these rules and regulations by rewriting the congressionally approved mandates through his executive orders, then he would be in severe violation of striking an imbalance among the three branches of government. Laws such as the APA are specifically in place in order to realign this balance, and check any branch of government that would overstep its proper authority. In President Trump’s case, if the judicial branch finds that his executive order supersedes clear congressional intent, they would have to intervene and restrict any further encroachment by the executive branch in imposing on further federal immigration laws.

The next step to challenge President Trump’s executive order would be to bring a credible lawsuit in front of a district judge. Considering some of Trump’s previous executive orders were challenged and restrained on these very same grounds, it is very likely that the work visa freeze will also be addressed in court for circumventing administrative procedure. Matthew Dunn confirms, “There are suits that are being readied to be filed by industry groups, and I would predict that one of these suits will be taken very seriously by a district court judge and likely lead to a restraining order in some fashion” (Bloomberg Law). The court will then hear if President Trump has overstepped the boundaries of administrative procedure, and if they decide he has, then the executive order must be rescinded or changed in order to conform with proper legal standards.

Alternatively, Congress can invalidate the President’s executive order by passing legislation that explicitly invalidates it, which would require a long and bi-partisan process. In this case, even if Congress were able to agree on and pass a bill through the two chambers, the President would still have the ability to veto it. If this happens, Congress can still override the veto with a two-thirds majority vote, although rare and very unlikely. Thus, the most viable avenue to oppose President Trump’s legislation would be to file and win a lawsuit, which would in turn enable a district judge to restrain the implementation of the executive order.

The conclusion, therefore, is that the President does not have the absolute authority to manipulate immigration law, or any other type of law, as he so chooses. He must conform with regulatory standards, administrative procedures, and congressional intent in the interests of the United States; and if a court of law decides that he has not done so, then any proclamation he has made does not stand and any executive order he has issued must not be implemented. These checks and balances are the foundation that this nation was built upon, and they evidence that no political official has the right to encroach on clear federal and administrative laws, no matter how high their office may be in the federal government. For more information about President Trump’s new work visa freeze and consultation about immigration procedures in light of the new executive order, please contact jfeng@fengvisa.com.

Below, we’ve listed a set of commonly asked questions and their answers pertaining to the scope of the President’s power and how it contrasts to legislative processing in dealing with specific immigration issues:

1. Can the President decide to increase the H-1B filing fee by issuing an executive order anytime he wants?
   1. No, in fact, the decision to raise immigration filing fees must be done by Congress. In 2015, Congress proposed The Consolidated Appropriations Act (Public Law 114-113), which increased fees for certain H-1B and L-1 petitioners. In order to have become a law, it had to have first been issued by the Senate or House of Representatives as a bill. The bill would then be discussed over several delegations and appraisals, facing several opportunities to be terminated by either chamber of congress. If an agreement is reached by both the Senate and the House of Representatives, it is then sent to the President, who still has the decision to veto the bill. Only after his acceptance, can it become a law. So, there is a long and ardent process that entails making a law, even if it is simply restricted to raising filing fees. The President would not be able to bypass this procedure by simply issuing an executive order, because in fact, it is a matter that requires legislation.
2. Does the President have the power to increase the H-1B prevailing wage?
   1. The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers working in the occupation in the area of intended employment. To comply with the statute, regulations require the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment. The prevailing wage is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment. Based on this, it is clear that the prevailing wage is a simple calculation of the average wage paid, and it is not a matter of policy determination. In other words, there is no governing body that sets the prevailing wage, it is simply a reflection of the state of the market that determines what the prevailing wage is. With this in mind, the answer to the question is no, the President cannot increase the H-1B prevailing wage, because he does not have the power to manipulate the average wages that are paid in a given occupation.
3. Can the President suspend the H-1B program without any input from Congress?
   1. As we discussed earlier, the President has broad authority under section 212(f) to restrict foreign immigration. However, this does not mean he has the ability to outright change the existing regulation in the INA or bypass administrative procedure. The President does have the ability to suspend H-1B visas, however he must do so in a manner that conforms with federal and administrative immigration law. As lawsuits are filed against President Trump’s newly issued executive order, the courts will decide if his proclamation is warranted under his authority or not (See PennState Law’s analysis).
4. Does the President have the authority to suspend the green card program?
   1. Like the question addressed in number three, yes, the President does have the authority to suspend the green card program given its conformity with the INA and administrative procedure. Again, this is because of the very broad power the President is given by the INA, and the great deference he has to prevent certain categories of individuals from either staying within or coming into the United States.
5. Is the President allowed to rescind the H-4 EAD authorization granting the spouses of H-1B workers to work themselves?
   1. In 2014, the Obama administration effectively instituted the H-4 EAD (Employment Authorization Document) which allowed the spouses of H-1B workers to work under certain preconditions. Since then, the order has faced litigation in court, particularly by an organization called Save Jobs USA. The President and his administration, in support of Save Jobs USA, committed to rescinding the Obama-era executive order. Because the order was not a form of legislation passed by Congress and simply an executive order, yes, President Trump has the authority to reverse it and disallow the H-4 EAD authorization process. This is because he would not be contradicting any congressional legislation, he would simply be revoking an executive order, which is grounded in legal precedent.