Social, Technology

In a Blow to American Tech, SCOTUS Upholds Trump’s Travel Ban

Earlier today, the Supreme Court ruled by a decision of 5-4 to uphold President Donald Trump’s executive order that restricts entry into the United States for citizens of seven countries: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

The order — championed by many conservatives as a tough-on-immigration and anti-terrorism policy — has critics on both sides of the political spectrum. Some of the most vehement opposition to the policy is from members of the tech community. It’s been widely referred to as a “Muslim ban,” though two of the countries that were added to the list, North Korea and Venezuela, are not predominantly Muslim.

In the majority opinion, Chief Justice John Roberts defended the order as “expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Roberts also dismissed the notion that the order is a “Muslim ban” as the countries included represent only 8% of the world’s Muslim population.

During his presidential campaign, Donald Trump promised a “total and complete shutdown of Muslims” from entering the United States. But the court’s decision was based on the language of the order itself, rather than campaign rhetoric or anything else that the president has said on Twitter or otherwise. The order is in its third version, which President Trump has decried as a “watered-down” version of what he wanted.

The four justices that voted against upholding the travel ban were all appointed by Democratic presidents, while all five that voted in favor were appointed by Republican presidents. This includes Neil Gorsuch, the man Trump nominated to replace the late Antonin Scalia after a Republican-majority Congress refused to hold a vote to confirm President Barack Obama’s appointee Merrick Garland.

Last September, 162 tech companies — including Amazon, Google, Facebook, Uber, SpaceX, Spotify, and Twitter — formally asked federal courts to strike it down. According to the brief filed by the companies, the order “hinders the ability of American companies to attract talented employees, increases costs imposed on business, makes it more difficult for American firms to compete in the international marketplace and gives global enterprises a new, significant incentive to build operations — and hire new employees — outside the United States.”

Tech companies including Amazon have advised employees from the countries included in the ban against traveling home.

According to federal census data from 2016, 71% of tech workers in Silicon Valley are foreign-born. Data from the same years shows that Apple hired more than 2,500 foreign workers and that Google hired more than 2,000, both through the H-1B visa. 60% of these hires had master’s degrees.

Many top executives at some of the top tech companies are from the countries included in the ban. This includes Dara Khosroshahi, CEO of Uber, Pierre Omidyar, the founder of eBay, and Omid Kordestani, executive chairman of Twitter, all of whom were born in Iran. Steve Jobs, the late founder of Apple, was the biological son of a Syrian immigrant.

The Supreme Court’s decision today cuts off a major pipeline of talent for tech innovation. Sharif University in Tehran, considered “the MIT of Iran,” has long supplied Silicon Valley and other U.S. tech hubs with some of the best tech talent in the world. Sharif graduates will have to go build in other places. Dubai in particular seems particularly eager to attract this talent pool.

Justice Sonia Sotomayor authored the dissenting opinion and read it aloud in the court:

“A reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” she said. “The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”

She also read aloud a series of anti-Muslim statements issued by the president for added context to the executive order, which she described “a policy that masquerades behind a façade of national security concerns.”

“History will not look kindly on the court’s decision today — nor should it,” she concluded.

The decision comes a week and a half after the White House reaffirmed its intention to dismantle the H-4 visa rule, which allows spouses and unwed children of H-1B visa holders to live legally in the United States.

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Patrick is a writer from Baltimore who covers finance, emerging technologies, startups, and culture. He previously worked as a managing editor at The Agora, one of the largest private publishing institutions in the world.


  1. Re: H-1B

    While lobbying Congress for more H-1B visas, industry claims H-1B workers are the “best and brightest”. Come payday, however, they’re entry-level workers.

    The GAO put out a report on the H-1B visa that discusses at some length the fact that the vast majority of H-1B workers are hired into entry-level positions. In fact, most are at “Level I”, which is officially defined by the Dept. of Labor as those who have a “basic understanding of duties and perform routine tasks requiring limited judgment”. Moreover, the GAO found that a mere 6% of H-1B workers are at “Level IV”, which is officially defined by the Dept. of Labor as those who are “fully competent” [1]. This belies the industry lobbyists’ claims that H-1B workers are hired because they’re experts that can’t be found among the U.S. workforce.

    So this means one of two things: either employers are looking for entry-level workers (in which case, their rhetoric about needing “the best and brightest” is complete B.S.), or they’re looking for more experienced workers but only paying them at the Level I, entry-level pay scale. In my opinion, employers are using the H-1B visa to engage in legalized age discrimination, as the vast majority of H-1B workers are under the age of 35 [2], especially those at the Level I and Level II categories. It’s all about age discrimination.

    Any way you slice it, it amounts to H-1B visa abuse, all facilitated by and with the blessings of the US government.

    The National Association of Colleges and Employers (NACE) has never shown a sharp upward trend of Computer Science graduate starting salaries, which would indicate a labor shortage (remember – the vast majority of H-1B visas are granted for computer-related positions). In fact, according to their survey for Fall 2015, starting salaries for CS grads went down by 4% from the prior year. This is particularly interesting in that salaries overall rose 5.2% [3][4].

    [1] GAO-11-26: H-1B VISA PROGRAM – Reforms Are Needed to Minimize the Risks and Costs of Current Program
    [2] Characteristics of H-1B Specialty Occupation Workers Fiscal Year 2016 Annual Report to Congress October 1, 2015 – September 30, 2016
    [3] NACE Fall 2015 Salary Survey
    [4] NACE Salary Survey – September 2014 Executive Summary

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