By Asheeta Regidi

The disruptive effects of US President Trump’s anti-immigration order has brought together nearly a 100 of the top tech companies in the US, in a united stand against it. The companies, which includes huge names like Apple, Google, Microsoft, Facebook, Twitter, Uber and Netflix, have filed an amicus curiae brief before a US Court.

In the brief, the tech companies highlight the massive role and contribution of immigrants to innovation and the growth of the American economy. It further points to the hindrance to business and recruitment by US companies, due to the arbitrary and uncertain immigrant entry system created by the ban. The full brief can be accessed here.

What is Amicus curiae?

An amicus curiae (‘friend of the court’) can file a brief in any case (with the Court’s permission) which he is not a party to, but has a significant interest in the outcome. It is an attempt to influence the court’s decision in the case by presenting his point of view.

The interest of these technology companies in having unrestricted access to the brightest talents and innovators around the world is without question. The present brief has been filed in the ongoing case of State of Washington v. Donald J. Trump, the same case which is currently hearing an appeal against the nation-wide stay granted against the US President’s anti-immigration order (the ‘Order’).  

Hindrance to innovation since Steve Jobs, Nikola Tesla are all immigrants

For technology companies, the hindrance to innovation as a result of the Order is a major concern. Immigrants have played a major role in contributing to innovations and growth of the American economy.

For instance, more than 200 companies on the Fortune 500 list, including Apple, Kraft, Ford, General Electric, Google and Disney have been founded either by immigrants or their children. Steve Jobs, for instance, was the son of a Syrian immigrant, Abdul Fattah Jandali. These are companies which, collectively, generate an annual revenue of about $4.2 trillion, and generate employment for millions of Americans. Immigrants, in fact, account for 16% of the labor force, 18% of business owners, and 29& of Main Street business owners in the US. They, thus play a huge role in fueling the growth of the US economy as a whole.

The profound impact of the innovations by immigrants can be seen from the development of alternating current by Nikola Tesla, a Serbian immigrant, to the jeans of Levi Strauss, a Jewish, German immigrant. In fact, nearly 40% of Nobel prize winners, including all 6 American winners in 2016, have been immigrants.

Harm to competitive abilities

Another concern of technology companies is the hindrance to the recruitment of the world’s best talent in their companies. Not only is there a threat of disruption to ongoing business, even the companies’ ability to attract new talent, business and investment is in jeopardy. The Order may well result in companies moving their bases out of the United States, so they can continue their business freely.

Adverse effects on travel and recruitment

The order has already had adverse effects on current employees of these companies, who were ensnared by the travel restrictions imposed. Simple company activities such as sending employees across the border for conferences and meetings, or for inviting customers and clients from abroad, is hampered. The restrictions also result in a reluctance for skilled individuals to migrate to the US. Companies and employees will be unwilling to risk going through the laborious process of sponsoring and obtaining a visa, relocate to the US, only to be unexpectedly halted at the border.

Retaliatory action from the banned countries

Moreover, there was a danger of retaliatory action from the banned countries, which has already been evidenced through retaliatory threats from Iran, as well as a risk to the huge business deals of General Electric with Iraq.

Legal challenges to the Order

Various legal grounds for the challenging the order have also been presented, such as violation of the requirement that in the issue of an immigrant visa, there can be no discrimination on the grounds of ‘race, sex, nationality, place of birth, or place of residence’. Moreover, the Order reflects a move back to the highly arbitrary ‘national origin system’ for immigration assessments. This system had long since been abolished by the US Congress in favor of a system based on ‘the advantage to the US of the special talents and skills of the immigrant’.

Lastly the excessive discretion left in the hands of immigration officials in granting an entry visa, will make obtaining one purely a ‘sport of chance’.

Remove severe uncertainty introduced by Trump’s order

The companies, rightly, fear the severe uncertainty introduced by the Order into the immigration system.  The sudden and unexpected barring of a country’s nationals from entry greatly hampers the  ability of any business to make plans, conduct business or manage any affairs involving non-citizens. Moreover, the risk is not restricted to the 7 countries on the list, since the Order has proposed adding more to the list in future. The US Courts, so far, appear to hold a similar view against Trump’s order. Hopefully, the arbitrary and highly discriminatory order will soon be rescinded fully.

The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.

Publish date: February 7, 2017 2:50 pm| Modified date: February 7, 2017 2:50 pm

Tags: , , , , , , , , ,