Visa Hopefuls Sue State Dept. Over 'Total, Inescapable Ban' 1 Visa Hopefuls Sue State Dept. Over 'Total, Inescapable Ban'

By Alyssa Aquino

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Law360 (April 8, 2021, 8:57 PM EDT) —
Hundreds of visa hopefuls sued the U.S. Department of State in Washington, D.C., federal court on Wednesday, saying the department has illegally enacted a “total, inescapable ban” by halting visa processing for individuals subject to COVID-19 restrictions on entry.

Currently, travelers from South Africa, Brazil, China, Iran and most of Europe are banned from entering the U.S. under presidential proclamations intended to curb the spread of COVID-19, but foreigners living in those areas have accused the State Department of using the travel bans to prevent them from obtaining their visas.

“Nowhere in any of these Presidential Proclamations is any reference to visa issuance whatsoever,” the complaint said.

Individuals subject to the regional bans may enter the U.S. after a 14-day quarantine in a third country, a workaround that Jesse Bless of the American Immigration Lawyers Association, an attorney for the visa hopefuls, stressed during a Thursday call with Law360.

But if the State Department refuses to issue the visa, “it takes a ’14-day quarantine ban’ and makes it a permanent ban,” he said. “It’s somewhat absurd.”

The complaint lists over a hundred plaintiffs, which include families and engaged couples attempting to reunite in the U.S. and several categories of foreign workers such as J-1 exchange workers and H-1 seasonal workers. Several U.S. businesses that have sponsored work visas, nine of which aim to bring over 500 employees, have also joined the suit.

According to the complaint, the federal immigration agency has already approved the immigrant and nonimmigrant visa petitions. But the visa hopefuls say that progress has stalled at the State Department, which has allegedly refused to finish pre-processing applications at its National Visa Center, send cases to the consulates, schedule visa interviews or issue visas to individuals under the regional bans.

The visa hopefuls say that the stalled applications go back to the State Department’s so-called “no-visa policy,” which they argue conflicts with the Immigration and Nationality Act, which “is careful to delineate” between a noncitizen seeking to enter the U.S. and visa issuance. They also call the alleged policy arbitrary and capricious. 

The allegations roughly align with claims from a series of suits concerning two separate pandemic-era bans blocking foreigners from moving to the U.S. on most immigrant and nonimmigrant visas. In addition to outright attacking the validity of the bans, plaintiffs in those cases have lobbed claims against the State Department, accusing it of instituting a no-visa policy.

“The no-visa policy has never been right. It’s not right. It’s a legal error by the Department of State, and they’re continuously told that it’s wrong,” Bless said.

The individuals behind those cases — most of whom are represented by the same attorneys behind the instant suit — have found much success in federal court. Judges have thus far shielded winners of the 2020 diversity visa lottery, a group of family-based immigrant visa applicants, and several O-1 “extraordinary ability” visa applicants from the no-visa policy.

The instant suit will be heard by Washington, D.C.’s Judge James Boasberg, who previously ruled against the no-visa policy’s application to engaged couples in a December order comparing the suing, K-1 fiance visa hopefuls to “star-crossed lovers.”

A representative for the State Department declined Thursday requests for comment, citing pending litigation.

The visa hopefuls are represented by Jeff Joseph of Joseph & Hall PC, Greg Siskind of Siskind Susser PC, Charles Kuck of Kuck Baxter Immigration LLC and Jesse Bless of the American Immigration Lawyers Association.

Counsel information for the government wasn’t immediately available Thursday.

The case is Kinsley et al. v. Blinken et al., case number 1:21-cv-00962, in the U.S. District Court for the District of Columbia.

–Editing by Steven Edelstone.

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