Law360 (May 7, 2021, 10:01 PM EDT) -- The State Department urged a D.C. federal court Friday to throw out a lawsuit over the slow processing of K-1 fiance visas, arguing that the case is moot after the department issued a "national interest" exemption to aid the applicants.
Government lawyers told the court that the suit, filed by more than 150 U.S. citizens and the foreign partners they intend to marry, should be dismissed because the secretary of state in April exempted all K-1 visa applicants from a Trump administration executive order restricting noncitizens' entry into the U.S. during the COVID-19 pandemic.
"Indeed, Plaintiffs demand that the Court place them in front of the line ahead of hundreds of thousands of other similarly situated immigrant visa applicants," the State Department said, arguing that they want preferential treatment without saying why.
The department said that U.S. embassies and consulates responsible for processing plaintiffs' visa requests have "not unreasonably delayed the adjudication of their cases," and cited the "extraordinary effect" that the COVID-19 pandemic has had on consular processing overseas.
A court order to expedite individual cases would usurp the secretary of state's authority to make decisions on how the department expends resources in response to the pandemic, the government said.
The group of K-1 nonimmigrant visa applicants and their U.S. citizen partners filed suit in September 2020, alleging that the Department of State wasn't processing their cases in a timely manner during the pandemic following a March 2020 order suspending routine visa processing and prohibiting entry of non-U.S. citizens coming from certain countries hit hard by COVID-19.
From March 2020 to July 22, 2020, 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, but not for K visa holders.
Since then, routine visa services have been reinstated, and K-1 visas were given high-priority designation. The plaintiffs said in their September complaint that this wasn't so, and that the State Department's National Visa Center was refusing to process K-1 visas.
In November 2020, U.S. District Judge James E. Boasberg found the State Department was wrong to stop processing visa applications based on proclamations from President Donald Trump suspending entry into the country for immigrants and nonimmigrants from 31 countries.
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, and it therefore did not fall under the proclamation. In the same decision, he declined to order speedier visa adjudication for the couples, saying that the delay did not warrant judicial intervention.
Charles Herman Kuck, of Kuck Baxter Immigration Partners LLC, who represents the couples, declined to comment on Friday's motion to dismiss. The U.S. Department of Justice and the State Department did not return requests for comment.
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 Dave Simpson. Editing by Jill Coffey.
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