US Citizens Say State Dept Illegally Delaying Fiancée Visas

By Sarah Martinson
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Law360 (September 21, 2020, 7:13 PM EDT) -- More than 150 U.S. citizens and their fiancées have sued the State Department for not processing and issuing K-1 fiancée visas during the coronavirus pandemic, alleging that the agency has misinterpreted President Donald Trump's executive orders restricting noncitizens' entry into the U.S.

The U.S. citizens and their fiancées who have had their visa petitions approved told a D.C. federal court on Friday in a lawsuit against the U.S. Departments of State, Homeland Security and Justice that President Trump's orders prohibiting entry to non-U.S. citizens coming from certain countries hit hard by the pandemic doesn't suspend the processing and issuance of K-1 visas.

The State Department has wrongly stopped processing and issuing fiancée visas based on the fact that certain foreign nationals can't travel to the U.S. during the pandemic, according to the lawsuit, requesting that the court resume K-1 visa processing.

"Where nonimmigrant workers are permitted to receive visas and enter the U.S. subject to a national interest exception, and where visitors for pleasure are permitted to receive travel authorization and enter the U.S., this decision to exclude K visa applicants, the legal and practical equivalent of immediate relatives of U.S. citizens, is arbitrary and capricious, and contrary to law," the visa seekers said.

At the beginning of the pandemic, the Trump administration suspended all routine visa processing, but the government carved out "national interest" exceptions for H-1B visas for specialty occupations, L visas for internal company transfers, H-2B visas for guest workers and J-1 visas for medical doctors.

However, foreign fiancées don't qualify for the national interest exception, and even though the government has reinstated routine visa services and given K-1 visas high-priority designation, the State Department's National Visa Center refuses to process K-1 visas, according to the complaint.

The K-1 visa seekers said in their suit that the State Department is violating the Administrative Procedures Act by not processing their requests because the president and the agency don't have the authority to stop issuing K-1 visas.

The Immigration and Nationality Act differentiates between entry and visa issuance, only allowing the president to suspend entry into the U.S., according to the suit.

The federal government has been hit with multiple lawsuits over Trump's visa suspensions during the pandemic, arguing that the president's orders will hinder the U.S.' economic recovery.

Earlier this month, a D.C. federal court temporarily barred the government from applying its visa ban to foreign citizens who won green cards in the Diversity Visa lottery, finding that the State Department's refusal to process their visas is likely illegal.

The visa seekers' attorney Jeff Joseph said in a Friday statement that the State Department's "arbitrary actions … are having real impacts on U.S. citizens and their families."

"If we can make exceptions and process visas for agricultural workers, students, and other visa categories, we can certainly process visas for the intended husbands and wives of U.S. citizens," Joseph said.

The State Department, DHS and the DOJ did not respond to requests for comment on Monday.

The visa seekers are represented by Jeff D. Joseph of Joseph & Hall PC, Greg Siskind of Siskind Susser PC and Charles H. Kuck of Kuck Baxter Immigration LLC.

Counsel information for the government could not be immediately determined.

The case is Milligan et al. v. Pompeo et al., case number 1:20-cv-02631, in the U.S. District Court for the District of Columbia.

--Additional reporting by Suzanne Monyak. Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

MILLIGAN et al v. POMPEO et al


Case Number

1:20-cv-02631

Court

District Of Columbia

Nature of Suit

Immigration: Other Immigration Actions

Judge

James E. Boasberg

Date Filed

September 17, 2020

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