District Court Stops the US Department of State from Refusing to Issue K1 visas
The U.S. District Court for the District of Columbia in Milligan, et al. v. Pompeo, et al., 11/19/20, held that the US Department of State for consular affairs acted unlawfully in suspending processing of K-1 visas in the 31 countries. The President issued a series of Proclamations during 2020 relating to COVID-19 concerns. But, the State Department misapplied the Proclamations.
Accordingly, the court granted in part the plaintiffs’ motion for a preliminary injunction, enjoining DOS from suspending all K1 visa adjudications for the plaintiff couples with a foreign-born fiancé(e) who resides in any of the Proclamation countries:
Republic of China; Iran; Schengen Area — i.e., 26 European countries; United Kingdom and Ireland; and Brazil.
To support the Proclamations, the President invoked 8 U.S.C. § 1182(f), which vests him with authority to “suspend the entry of all aliens” “into the United States.”
Exceptions for Other Family Members, but Not Fiances
Each Proclamation excepts from its prohibition lawful permanent residents of the United States; aliens who are spouses, parents, or children of U.S. citizens; and aliens whose entry is determined to be “in the national interest.” The President did not, however, exempt foreign-born fiancé(e)s. The State Department interpreted the Proclamations to suspend its processing of many visas, including fiancé(e) visas, in the Proclamation countries.
K1 Visa Issuance Moves Forward
The court in Milligan, et al. rejected the State Department’s position that suspending entry to the US allows consulates to suspend visa issuance. Many couples would like to have the K1 visa so that they may enter the US as soon as permitted. The State Department had no legal justification for withholding K1 visa interviews. Consequently, the court ordered the injunction to stop such practice.
Other Unreasonable Delays?
However, the court rejected the plaintiffs’ claim that DOS had unreasonably delayed the adjudication and issuance of K-1 visas in non-Proclamation countries during the pandemic, although it noted that it could order relief on this claim if the delays continue for a more extended period. It acknowledged that foreign consulates have suffered under the strain of the COVID-19 pandemic, hampered by factors ranging from host-country government restrictions (such as mandatory quarantines, regulations of public movement, and limits on public gatherings) to decreased staffing levels (given illness of employees and their family members).
Back on Track
At this time, all consulates should move forward with adjudications of K1 fiance visas as they are able to do so.