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Judge Rules Travel Ban is Not Visa Ban

Travel bans implemented by the Trump and Biden Administrations at the beginning of the COVID-19 pandemic have received pushback in federal district court after some visa applications were halted in the middle of the visa issuance process. Washington D.C. Federal District Court Judge James E. Boasberg ruled on October 5, 2021 that the U.S. Department of State cannot rely on Presidential Proclamations as a basis to cease visa processing for nonimmigrant plaintiffs from countries affected by the Proclamations.

Just short of 200 nonimmigrant visa applicants and their affected family members sued the U.S. Department of State in April 2021. Among the plaintiffs were various categories of foreign workers, including J-1 exchange workers and H-1 seasonal workers, as well as engaged couples and other family members. Several U.S. businesses also joined the lawsuit, including nine that said they intend on employing over 500 visa holders.

The Judge’s ruling dismissed the complaints brought by most of the plaintiffs and only ruled in favor of nine visa applicants, granting them summary judgment. Judge Boasberg found that the State Department “acted improperly in suspending visa issuance based on the Proclamations.”

The initial complaint asserted that the plaintiffs were improperly prevented from completing the visa application process despite having their initial visa petitions approved. The nine plaintiff’s granted summary judgment were successful in arguing that the travel bans in the Presidential Proclamations were misused to prevent the issuance of visas. The Immigration and Nationality Act, the plaintiff’s argued, draws a distinction between the issuance of visas and noncitizens attempting to enter the U.S. 

After their visa petitions were approved by the United States Citizenship and Immigration Services (USCIS), the plaintiffs alleged that the State Department refused to continue the visa process for individuals subjected to regional travel bans. The plaintiffs said the State Department refused to finish pre-processing applications at the National Visa Center, send applications to U.S. Embassies and Consulates, schedule visa interview, or finally issue visas. Plaintiffs argued in their complaint that taking these actions was arbitrary and capricious under the Administrative Procedure Act (APA) and an incorrect application of § 1182(f) of the Immigration and Nationality Act. 

Most of the plaintiffs’ complaints were dismissed by Judge Boasberg because they either lacked standing to sue or had already been granted National Interest Exceptions (NIEs), rendering their initial complaint moot. NIE’s are waivers granted by the U.S. Department of State that allow individuals with certain special interests to enter the United States despite any travel bans applicable to their country.

Under the NIE, individuals must have a qualifying circumstance that makes it in the United States’ national interest to permit them entry to the United States. There are several exceptions that an individual may fall under to qualify for a NIE, and the Secretary of State is able to revise the NIE categories as circumstances warrant. Those plaintiffs granted an NIE in this case were thus able to be issued a visa and enter the United States under the exception.

In June 2021, the plaintiffs moved for a preliminary injunction requiring the State Department to process the visa applications or, alternatively, for summary judgment. The State Department responded by moving to dismiss the case or, in the alternative, for summary judgment.

According to Judge Boasberg’s ruling, the State Department was unsuccessful in its argument that the case should be dismissed under the doctrine of consular non-justiciability. However, the State Department was successful in its argument that cases brought by noncitizen plaintiffs who were applying for an immigrant visa or K-1 nonimmigrant visa, including their U.S.-citizen petitioners and corporate plaintiffs sponsoring their immigrant visas, should be dismissed for a lack of standing.

At the same time, the judge ruled that the cases brought by 74 plaintiffs are dismissed for mootness because these plaintiffs’ applications had been adjudicated since the start of litigation. The nine plaintiffs who did receive a favorable ruling of summary judgment were found to have been improperly denied the issuance of nonimmigrant visas, despite court precedent and previous rulings that effectively distinguished between visa issuance and a ban on entry into the United States.

According to Judge Boasberg, there is no basis in the law for Consular Officers to deny the issuance of permits based on the travel bans in the Presidential Proclamations, and the State Department is not owed deference with regard to its interpretation that § 1182(f) of the Immigration and Nationality Act. The State Department argued this section authorizes it to stop issuing visas in the midst of a travel ban. Instead, the Judge found that the statute is clear to refer only to a ban on travel, not visa issuance, and that the State Department’s “reliance on this section to refuse to adjudicate visas for nonimmigrant Plaintiffs in Proclamation countries is not in accordance with the law.”

Judge Boasberg made clear that his ruling did not create a requirement that the State Department must issue visas to the nine successful plaintiffs, or that these plaintiffs should move to the front of the line. Instead, the Judge was clear that his ruling only held the Presidential Proclamations to be an insufficient basis for the State Department to halt the visa issuance process, despite it being a legitimate ground to ultimately deny a traveler physical entry to the U.S. if they are traveling from a country subjected to a ban. 

Throughout the pandemic, travel bans have been applied to numerous countries, and continue to be applied to 33 countries, including Brazil, India, Iran, Ireland, South Africa, the Schengen Area of Europe, and the United Kingdom. The longest travel ban, imposed upon China, has been ongoing since January 2020. The travel bans “suspend entry into the United States of all noncitizens who were physically present in any of 33 countries during the 14-day period preceding their entry or attempted entry into the United States.”

In September 2021, the Biden Administration announced a new requirement that immigrants and certain non-immigrants arriving to the United States must be fully vaccinated against COVID-19 prior to entry into the U.S. The vaccine requirement will provide travelers with a new option for adhering to COVID-19 protocols, in lieu of the current 14-day requirement.

The travel bans and the halt in visa issuances have significantly impacted businesses whose workers rely on visas and access to United States’ ports of entry for employment. In particular, workers in science, technology, engineering, and mathematics (STEM) have been impacted by the travel bans. Many Indian workers found themselves stuck in India after travelling to their home country to be with sick loved ones when an outbreak struck the country in 2021.

The travel bans have created similar headaches for thousands of visa holders from all of the affected countries, as well as the U.S. family members or employers who sponsor them. While it is difficult to quantify the exact impact these travel bans have had on the U.S. economy, immigrant labor and access to U.S. borders is understood as being crucial to U.S. economic growth, innovation, and the success of businesses, particularly those in tech and other STEM fields.

Attorneys for the plaintiffs in the D.C. Federal District Court case see the Court’s ruling as a clear statement of the law regarding how the State Department must interpret the Immigration and Nationality Act, and that Presidential Proclamation travel bans do not constitute a basis for interrupting the visa application process. Unlike previous litigation related to this issue, attorneys believe Judge Boasberg’s ruling will have a legal impact beyond the individual circumstances of the plaintiffs in this case, and firmly establishes that travel bans provide no basis for halting the issuance of visas. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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