Federal Judge Says State Department Cannot Cease Visa Processing Due to COVID-19 Travel Bans

We have very interesting and exciting news to report to our readers. We are happy to report that on Tuesday, October 5, 2021, a federal judge from the United States District Court for the District of Columbia, declared that the State Department cannot use the various geographic COVID-19 related Presidential Proclamations to cease the processing of visas at Embassies and Consulates worldwide.

As our readers will know, beginning in January of 2020, to protect against the rise of COVID-19 infections in the United States, the President issued a series of Presidential Proclamations that suspended and restricted entry into the United States, of immigrants and nonimmigrants, who were physically present within the Schengen Area, Brazil, China, the United Kingdom, Ireland, and Iran, during the 14-day period preceding their entry or attempted entry into the United States.

These Presidential Proclamations did not have a termination date and have continued to be in force to the present day. The most widely discussed ban (the Schengen visa ban “Proclamation 9993,”) applied to immigrants and nonimmigrants from 26 European countries including: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland. However separate visa bans have also impacted the entry of Brazilian nationals, Chinese nationals, Iranian nationals, and Indian nationals (see the list of COVID-19 travel bans listed below.)

Since the issuance of these travel bans, U.S. Consulates and Embassies worldwide have refused to issue any visas to those who do not otherwise qualify for an exemption and have been physically present in any of the affected regions during the 14-day period preceding their entry into the United States. The only way applicants have succeeded in pushing their cases forward has been by requesting a National Interest Exception from their respective Embassy.

The COVID-19 related travel bans 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
India Visa Ban –Proclamation 10199 issued April 30, 2021—No termination date
Brazil Visa Ban—Proclamation 10041 issued May 25, 2020 –No termination date

For a complete list of COVID-19 country-specific proclamations click here.

Understandably, the COVID-19 visa bans have caused great consternation among visa applicants who have been waiting to obtain visas from abroad for over a year. Many have been unable to file National Interest Exception requests because they do not qualify.

To put a stop to the State Department’s practice of refusing to issue visas, several plaintiffs filed a lawsuit in federal court, known as Kinsley, et al., v. Blinken, et al. In that case, Federal Judge James Boasberg ultimately agreed with plaintiffs that the State Department acted improperly in choosing to suspend visa issuance on the basis of the COVID-19 related Presidential Proclamations. His opinion acknowledged that the Presidential Proclamations have caused substantial delays and Consular posts around the world continue to face challenges due to the phased resumption of visa services framework. However, Boasberg made clear that the various Presidential Proclamations did not prohibit the adjudication of visas from individuals in the affected countries, and instead only restricted entry. Therefore, the Statement Department cannot use the travel bans as an excuse to refuse or process visas in any of the impacted regions.

Judge Boasberg’s decision however stopped short of ordering the State Department to immediately adjudicate the cases of the plaintiffs involved in the lawsuit. Boasberg stated, “the Court takes no position on whether the Defendants [the State Department] must issue visas to each plaintiff named in this suit…nor does it suggest that Plaintiffs should jump to the front of the line in having their applications processed. The Court simply holds that the Department cannot rely on the Presidential Proclamations as a basis to cease visa adjudications for nonimmigrant Plaintiffs from the affected countries.”

In closing the judge also noted that the temporary ban on re-entry will soon be resolved for some of those impacted, as the Biden administration recently announced that it will ease travel restrictions on fully vaccinated travelers from Proclamation countries in early November. It is worth noting that the government has not yet provided any specifics on this new policy change.

We believe judge Boasberg’s opinion will put the State Department on notice that it must continue to push cases through the pipeline for individuals residing in a Proclamation country. Although delays will still continue due to the unprecedented visa backlogs at Consular posts around the world, and local country conditions that continue to limit the number of applicants that can be interviewed on any given day.

Want to know how this decision can impact you? We would be happy to discuss your case with you. To schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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