A US district court judge has prohibited the use of travel bans as an excuse to not process or issue visas, such as H-1Bs – a non-immigrant visa.
While the US is gearing up to open its doors from November to fully vaccinated travellers, this decision by the district court of Columbia, pronounced on October 5, is good news for those holding H-1Bs and their dependants (such as spouses holding H4 visas) who had found themselves stranded in India while visiting their family.
People who were allotted H-1Bs under the lottery mechanism also found themselves unable to get their visas processed.
Travel bans were imposed under a ‘Presidential Proclamation’ earlier by former President Donald Trump and later by President Joe Biden. The fallout was that visa processing came to a halt. No non-immigrant visas were issued, unless the individual could claim a ‘National Interest Exemption’ – a challenging task.
On April 30, Biden had issued a proclamation restricting the entry of non-immigrants (green-card holders were exempt from the ban) who were physically present within India during the 14-day period preceding their entry or attempted entry into the US.
TOI had earlier reported about filing of a lawsuit by several individuals, including Indian nationals. “Several plaintiffs are long-term employees of US companies, who have been stuck outside of the US and whose careers are at risk as they cannot return to their jobs, homes, and communities. All individual plaintiffs have suffered additional expenses, undue stress and frustration while awaiting the Department of State’s resumption of non-immigrant visa processing,” stated the lawsuit.
The submitted before the district court that the US Department of State ‘has refused to process their non-immigrant visas’ to ‘schedule interviews or adjudicate their visa applications’, or ‘to issue the visas’ as a result of the Presidential Proclamation. They also pointed out that “consular officials are categorically precluded from processing their visa applications unless they fall under an exemption, regardless of the capacity and reopening status of local consulates and embassies”.
While Judge James E. Boasberg did not order the US Department of State to immediately adjudicate the suit, he has debarred the use of the travel ban proclamation as an excuse to refuse visa processing.
Greg Siskind, one of the immigration attorneys who is representing the plaintiffs, said: “This is a pretty important win for us because it [the lawsuit] was specifically aimed at killing the illegal interpretation across the board and not just for the plaintiffs. This will also hopefully bar a President in the future from abusing this power.”
Charles Kuck, another immigration lawyer representing the plaintiffs added: “We are grateful that Judge Boasberg saw through the cascade of baseless legal theories put forward by the Department of State to finally and affirmatively rule that it is a violation of federal law to refuse to issues visas solely because a President has proclaimed an entry ban under the Immigration and Nationality Act – 212(f). We call on the Department of State to now do away with its ridiculous and legally unnecessary national interest exemption program and get back to the business of visa issuance around the world regardless of those entry bans.”
