DOS Issues Statement In Compliance with K Visa Injunction in Milligan v. Pompeo

Welcome back to Visalawerblog! We hope you had a relaxing thanksgiving weekend. In this blog post we share an important update for K visa applicants impacted by the Coronavirus proclamations.

The Department of State recently issued a statement explaining how the agency will comply with a preliminary injunction issued by a federal judge in the case Daniel Milligan, et al., v. Michael Pompeo et al.

In that case a federal judge issued a preliminary injunction prohibiting the Department of States from relying on the Coronavirus proclamations to suspend K visa adjudications for those residing in the Schengen countries, the United Kingdom, Ireland, China, Iran, and Brazil.

Unfortunately, the judge stopped short of issuing a broad injunction to lift the ban on entry to the United States for K visa applicants impacted by these proclamations.

This means that while the government must proceed with K visa processing, once a K visa has been issued, applicants residing within an impacted area remain barred from entering the United States unless they meet a national interest exception.

To put it simply – the injunction simply stops the government from refusing to process K visas based on the Coronavirus proclamations. It does not allow K visa applicants from impacted areas to enter the United States once K visas have been issued unless the applicant meets a national interest exception. According to the judge, the government may still prevent entry to such applicants as deemed necessary during the pandemic.

What are the Coronavirus proclamations?

Back in January the President began issuing a series of Coronavirus proclamations that restrict and suspend the entry of immigrants and nonimmigrants, who were physically present within Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

These Coronavirus proclamations are as follows:

China Visa Ban – Proclamation 9984 issued January 21, 2020 – No termination date
Iran Visa Ban –Proclamation 9992 issued February 29, 2020 –No termination date
European Schengen Area Visa Ban—Proclamation 9993 issued March 11, 2020—No termination date
Ireland and UK Visa Ban –Proclamation 9996 issued March 14, 2020 –No termination date
Brazil Visa Ban—Proclamation 10041 issued May 25, 2020 –No termination date

As a result of these proclamations, U.S. Embassies and Consulates worldwide stopped adjudicating visas for those impacted including K visas. In response, 153 U.S. Citizens and their foreign fiancés brought suit against the United States government in the case Daniel Milligan, et al., v. Michael Pompeo et al.

How will DOS comply with the injunction?

Relief for Plaintiffs

In order to comply with the preliminary injunction, DOS has stated that K-1 visa applicants who are named plaintiffs in Milligan v. Pompeo and subject to a regional proclamation should contact their nearest Embassy or Consulate for guidance on scheduling a visa interview.

The announcement states that while such applicants may, pursuant to the court order, be scheduled for a visa interview even though they are subject to a COVID-related regional proclamation, the court order does not require that plaintiffs be given special priority ahead of other K visa applicants who have requested interviews or who already have been scheduled for interviews.

In addition, even if issued visas, K-1 plaintiff applicants remain subject to the regional P.P.s and, unless able to meet the criteria for a national interest exception, are barred from entering the United States if they have been present in a country covered by a regional P.P. in the 14 days prior to entry.

Relief for Non-Plaintiffs Not Subject to COVID proclamations

K visa applicants who are not plaintiffs in Milligan v. Pompeo and who are not subject to COVID-related regional proclamations will continue to have their applications prioritized and processed in accordance with existing phased resumption of visa services guidance.

The resumption of routine visa services, prioritized after services to U.S. citizens, is occurring on a post-by-post basis, consistent with the Department’s guidance for safely returning our workforce to Department facilities.

U.S. Embassies and Consulates will continue to provide emergency and mission-critical visa services for expedite and emergency travel requests.

Applicants who have urgent travel needs or believe they qualify for a national interest exception should contact an attorney as soon as possible to expedite visa issuance and entry to the United States.

Advice for K Visa Applicants

According to the DOS response, only plaintiffs named in the lawsuit Milligan v. Pompeo who are subject to a regional proclamation may push their nearest Embassy or Consulate to schedule an interview. Even in such cases, applicants remain barred from entering unless they meet a national interest exception. Our office has been successful in obtaining numerous expedite requests based on the national interest exception for K visa applicants at Consulates and Embassies around the world. We invite you to contact our office today to discuss whether you are eligible for such relief.

For more information please read our success stories.

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