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Federal Judge Issues Court Order Preventing DOS from Stopping Visa Issuance for K Visa Beneficiaries from COVID Proclamation Countries

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Welcome back to Visalawyerblog! We kick off the start of the weekend with some exciting news for K-1 visa petitioners and their foreign fiancés. Yesterday, November 19, 2020, a federal judge from the U.S. District Court for the District of Columbia issued a decision finding that the government acted unlawfully in suspending visa issuance for K visa beneficiaries subject to the Coronavirus Presidential Proclamations. See Daniel Milligan, et al., v. Michael Pompeo et al.

The plaintiffs in this case – 153 U.S. Citizens and their foreign fiancés – brought suit against the United States government challenging a series of Coronavirus proclamations passed by President Trump that prohibit certain foreign fiancés from receiving their K-1 visas and entering the United States. Such K visa applicants who have been impacted by these Coronavirus Proclamations include those who have been physically present in the Schengen countries, the United Kingdom, Ireland, China, Brazil, and Iran, within the 14-day period preceding their entry or attempted entry to the United States. As you may be aware, U.S. Consulates and Embassies worldwide have refused to process visas for this class of immigrants because of these Coronavirus proclamations. The issue has now been settled – the government may not stop visa processing simply because these individuals are subject to these proclamations.

The plaintiffs in the lawsuit also include couples who have been kept apart during the Coronavirus pandemic due to the State Department’s protracted delays in visa processing and Consular refusal to schedule visa interviews worldwide due to the pandemic.


Plaintiffs Arguments 

In their suit, the plaintiffs requested a preliminary injunction to immediately stop the State Department’s visa processing suspension based on two arguments (1) the State Department has unreasonably delayed visa processing for K visa applicants not subject to the COVID proclamations and (2) the State Department has unlawfully stopped visa processing for K visa applicants subject to the COVID proclamations.

Since the start of the pandemic, the majority of K visa applications have been stuck at the National Visa Center awaiting transfer to the Embassy or Consulate for visa scheduling. Still others have completed the interview process and have been awaiting K visa issuance for months on end with no reassurance from the Consulate regarding visa issuance in the near future.

The central issue for the court to resolve was whether the plaintiffs in the case met their burden of proof to demonstrate a likelihood of success with respect to their arguments.

The judge in the case James E. Boasberg ultimately found that the government cannot suspend visa adjudications for K visa applicants, even where entry has been temporarily suspended by presidential proclamation. See 8 U.S.C. 1201(g) and 1182(a). The court came to this conclusion having adopted the reasoning of the court in the case Gomez v. Trump, which found that a person who falls within a presidential proclamation is merely ineligible to enter but may not be refused visa adjudication by the government.


 Unreasonable Delays in Visa Adjudication

As to plaintiffs’ arguments that K visa processing has been subject to unreasonably delays for those not subject to the Coronavirus proclamations, the court considered and applied the following six factor test:

*The court ultimately found that the factors in bold favored the government

(1) the time agencies take to make decisions must be governed by a rule of reason;

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

(4) the effect of expediting delayed action on agency activities of a higher or competing priority;

(5) the nature and extent of the interests prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.

After weighing these factors, the judge found that while the third and fifth factors weighed in favor of plaintiffs, the others did not. As a result, he determined that the government did not unreasonably delay K visa processing.

As to the first and second factors, the court found no basis to conclude that the government’s timetable for processing K-1 visas lacked “some reason.” Although the court recognized that some delays began eight months ago, in March, when U.S. Embassies and Consulates around the world shut down, it ultimately found that this timeline alone does not provide a basis for judicial intervention.

The judge also found that the fourth factor favored the government given that “delays stemming from resource-allocation decisions [by the government] [during a pandemic] simply do not lend themselves to judicial reordering of agency priorities.”

Finally, as it relates to the 6th factor the court found that the government was no guilty of any impropriety in delaying visa issuance, and that the delays appeared to have been made in good faith and was not the result of officials “twiddling their thumbs.”


What was the judge’s final decision?

Ultimately, the judge refused to recognize any “unreasonably delay” in visa issuance by the State Department (at least at this time) because according to the judge the government has a rightful interest in balancing its own priorities during the pandemic. However, the court recognized that if the delays should continue for a more extended period of time, plaintiffs may qualify for an injunction in the future.

The judge however did find it necessary to grant a preliminary injunction to stop the State Department from relying on the Coronavirus proclamations to suspend visa adjudications for those impacted (those physically residing in the Schengen countries, the UK, Ireland, China, Iran, and Brazil).

As a result, the government cannot stop visa adjudication for individuals affected by the COVID proclamations although their entry may continue to be restricted once visas have been granted. The government however was found to have been justified in delaying the process because it may set its own priorities during the pandemic.


What happens next?

On December 3, 2020 the parties will have a status conference and the issue of the unreasonable delays in visa issuance may be revisited or further litigated in the courts.


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