District Court Says State Department Cannot Use Travel Bans as Grounds for Visa Refusals
On October 5, 2021, the U.S. District Court for the District of Columbia granted a summary judgment decision in favor of the Plaintiffs of the Kinsley v. Secretary of the U.S. Department of State lawsuit. What does this mean and how does this apply to nonimmigrants currently affected by the Presidential Proclamation travel bans?
What does this mean?
In short, the Court’s decision orders that the Department of State cannot use any of the series of COVID-19 Presidential Proclamations or travel bans as a reason to deny visa applications or not process the visa applications for nonimmigrants subject to the travel ban. Since April 2021, the State Department has enforced these proclamations, with certain exemptions and exceptions like the NIE, to place restrictions on visa issuance and entry into the United States for individuals physically present in China, India, Iran, Brazil, UK, Ireland, South Africa, and the 26 countries in the Schengen area. This decision now prohibits the denial of such visas denied solely on the basis of the visa applicant’s eligibility under the travel ban.
It is important to still acknowledge that many consulates are still not operating at their full capacity and have limited resources to combat the backlog in visa issuances due to the COVID-19 global pandemic. However, with the Court’s decision in mind, consulates can no longer use the travel bans as a reason to continue denying visa applications or not process visas because someone is subject to the travel ban and/ or not eligible for the National Interest Exceptions.
Who does this apply to?
Because this case was not a class action lawsuit, this summary judgment decision only directly applies to those listed as Plaintiffs in this Kinsley case. However, this decision does present a positive indirect effect on other nonimmigrant visa holders who have been denied visa issuance for the same travel ban reasons or are currently stuck abroad due to the travel ban based on their NIE ineligibility. We believe this case has set a precedent for the direction of future visa issuance during the ongoing global pandemic.
What doesn’t this mean?
This Court decision does not mandate the reissuance of visas in a similar processing time as was in place prior to COVID-19 nor does it rescind any of the Presidential Proclamation travel restrictions. All traveling immigrants and non-immigrants but still abide by the current proclamations in effect by scheduling their visa appointments and quarantining in select countries if necessary before they can safely return to the United States. This must continue until the Presidential Proclamations are official rescinded which we believe has a high likelihood of happening this year. Until then, we still encourage those subject to the travel bans to avoid traveling for the time being until a set date on the rescission has been officially announced.
By: Jeanetly Garcia
Jeanetly advises employers and individuals through all phases of the non-immigrant visa process. As an attorney in the NIV Department at Reddy & Neumann P.C. she is experienced in filing nonimmigrant petitions and applications for immigrant benefits, as well as, responding to USCIS issued requests for evidence concerning an array of legal issues.