In an unprecedented development last week, a Federal District Judge in Hawaii issued a nationwide restraining order halting President Trump’s second travel ban. The successful challenge, brought by the State of Hawaii, once again pits the federal court system directly against President Trump’s administration.
The president’s second ban, Executive Order No. 13780, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” was designed specifically to dampen the possibility of another successful judicial challenge. The president’s new ban excluded Iraq from the list of prohibited countries and allowed current visa holders, from the banned countries, to continue their travel. However, Federal District Judge Derrick Watson did not buy the administration’s new version of the ban, stating “Because an objective observer... would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose,” the plaintiffs were likely to succeed on the merits of their claims.
Restraining orders are unusual legal remedies because the court must make a quick decision on the motion without having the benefit of a full briefing from the parties. Once a motion for a restraining order is decided, the case proceeds. Because of this, it is difficult to determine how the court will rule later on. As it stands, the government is prohibited from enforcing both travel bans.
It remains to be seen whether the president will succeed in enacting the now-infamous ban. With several court challenges pending across the country, the ball stays in the administration’s court, and the public anxiously awaits President Trump’s reaction. The president’s twitter account remained suspiciously silent as news broke about Judge Watson’s decision yesterday.
Employers must still be prepared as H-1B season looms ahead. USCIS recently announced the temporary suspension of premium processing for all H-1B applications beginning on April 3, 2017. USCIS conducts a lottery each year to determine which H-1B applications will be selected for processing. Once the lottery is conducted, the agency will select 65,000 applications to process, subject to some exceptions. It is anticipated that the number of applications submitted for the lottery will again greatly exceed the cap. Employers should submit applications within the first few days in April for any chance at lottery selection.