State Dept.'s Fiancé Visa Suspensions Deemed Unlawful

By Dave Simpson
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Law360 (November 19, 2020, 10:50 PM EST) -- The U.S. Department of State can't suspend K-1 fiancé visa processing during the COVID-19 pandemic, a D.C. federal judge ruled on Thursday, but declined to order speedier visa adjudication for more than 150 U.S. citizens and their partners.

While quoting "Romeo and Juliet," U.S. District Judge James E. Boasberg said the State Department was wrong to stop processing visa applications for the "star-crossed lovers" based on proclamations from President Donald Trump suspending entry into the country for immigrants and nonimmigrants from 31 countries — under certain conditions — during the coronavirus pandemic.

Judge Boasberg pointed out that the visa merely allows a foreign citizen to attempt entry into the U.S., and does not actually equate to entering the country.

"A person who receives a visa can enter the United States without violating a proclamation — namely, by first quarantining for 14 days in a non-proclamation country — and thus can attempt entry without violating [the order]," the judge said. "Plaintiffs here may very well act in this fashion if and when they finally obtain their visas."

However, after considering a balancing test, the judge found that the State Department's delay in processing other K-1 visas does not yet warrant judicial intervention.

"The court sympathizes with the frustrating and often painful situations plaintiffs are enduring, but it believes that 'the government's interests in balancing its own priorities,' in ensuring careful vetting, and in navigating the varied challenges this global pandemic presents outweigh plaintiffs' interests in an immediate adjudication of their visas," Judge Boasberg said.

The judge also said that his decision could change if the delays continue for an extended period of time.

Judge Boasberg compared the couples' lives to those of William Shakespeare's "Romeo and Juliet," noting that they were both upended by a plague.

"In that tragedy, news of Juliet's ruse never reaches Romeo because an 'infectious pestilence' forces a quarantine that blocks the message's delivery," he said. "Here, similarly, COVID-19 has kept apart our plaintiffs."

The 153 U.S. citizens and their partners sued the State Department in September for not processing and issuing K-1 fiancé visas during the coronavirus pandemic, alleging that the agency has misinterpreted Trump's executive orders restricting noncitizens' entry into the U.S.

The plaintiff couples who have had their visa petitions approved told a D.C. federal court in the lawsuit against the State Department, U.S. Department of Homeland Security and U.S. Department of Justice that 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 wrongly stopped processing and issuing fiancé visas based on the fact that certain foreign nationals can't travel to the U.S. during the pandemic, according to the lawsuit, which requested that the court compel the agency to 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 fiancés and 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 Procedure 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 couples are represented by Jeff Joseph of Joseph & Hall PC and Charles Herman Kuck of Kuck Baxter Immigration Partners LLC.

The government is represented by Joseph F. Carilli Jr. of the U.S. Attorney's Office for the District of Columbia.

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 Nadia Dreid and Sarah Martinson. Editing by Nicole Bleier.

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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