K1 VIsa suspension unlawful

[Bastien & Valérie 0]

Hello all,

 

I hope you are holding up well,

 

In November 19, 2020, a D.C. federal judge ruled the suspension of the k1 visa processing unlawful (https://www.law360.com/articles/1330908):

• “While quoting "Romeo and Juliet," U.S. District Judge James E. Boasberg said the State Department was wrong to stop processing visa applications for the "star-crossed lovers" based on proclamations from President Donald Trump suspending entry into the country for immigrants and nonimmigrants from 31 countries — under certain conditions — during the coronavirus pandemic.”
• "A person who receives a visa can enter the United States without violating a proclamation — namely, by first quarantining for 14 days in a non-proclamation country — and thus can attempt entry without violating [the order]," the judge said. "Plaintiffs here may very well act in this fashion if and when they finally obtain their visas."

 

While it states clearly, that the department of state should not base itself on proclamations of Donald Trump and keep processing the k1 visas, the U.S. Embassy in Germany states on its website something opposite (https://de.usembassy.gov/visas/immigrant-visas/fiancee-visa/):

• “Please note that we are still prohibited from issuing K visas to persons physically present in Germany under Presidential Proclamation 9993, which has suspended routine travel from the Schengen Area to the United States due to COVID-19.  Under recent guidance, however, the following K-1 visa applicants may qualify for a national interest exception (NIE)”

 

Would you happen to know why the ruling is not enough to restart the processing of the K1 visa in the Germany?

Thank you all,

B & V

 

Court Opinion K1.pdf

[Crazy Cat 42,032]

Were you an official plaintiff in the lawsuit?  There was some discussion earlier as to whom would benefit from the ruling.....all K-1 applicants or only the plaintiffs?  @HRQX keeps a keen eye on these matters.

Edited December 8, 2020 by Lucky Cat

[Bastien & Valérie 0]

No I wasn't but it says that the couples represented were countries blocked by Trump proclamations. Could it be used to push resuming k1 visa processing in Germany ?

[Crazy Cat 42,032]

1 hour ago, Bastien & Valérie said:

No I wasn't but it says that the couples represented were countries blocked by Trump proclamations. Could it be used to push resuming k1 visa processing in Germany ?

The actual order says "Because Plaintiffs have shown that a preliminary injunction is warranted on their section 1182(f)-related claim, the Court will enjoin the State Department from relying on the Presidential Proclamations to suspend all visa adjudications for Proclamation Plaintiffs."

 

I have also seen someone saying there is a second lawsuit coming for the very same issue.  That leads me to think it affects only case plaintiffs........but I am speculating.

Edited December 8, 2020 by Lucky Cat

[MBKT 21]

I saw some people e-mailed the consulate with this ruling, but they got a response that the lawsuit did not apply to them as they were not plaintiffs in the case. 

[Bastien & Valérie 0]

Just now, MBKT said:

I saw some people e-mailed the consulate with this ruling, but they got a response that the lawsuit did not apply to them as they were not plaintiffs in the case. 

Ok thank you for you input, that is sad. Is there an opportunity to start a similar case maybe ?

[Bastien & Valérie 0]

4 minutes ago, Lucky Cat said:

The actual order says "Because Plaintiffs have shown that a preliminary injunction is warranted on their section 1182(f)-related claim, the Court will enjoin the State Department from relying on the Presidential Proclamations to suspend all visa adjudications for Proclamation Plaintiffs."

 

I have also seen someone saying there is a second lawsuit coming for the very same issue.  That leads me to think it affects only case plaintiffs........but I am speculating.

Yes it unfortunately seems to be the case. But it can be a good argumentation basis for future case as Proclamations are named: 

 

"See Proclamation No. 9984, 85 Fed. Reg. 6,709 (Jan. 31, 2020) (Republic of China); Proclamation No. 9992, 85 Fed. Reg. 12,855 (Feb. 29, 2020) (Iran); Proclamation No. 9993, 85 Fed. Reg. 15,045 (Mar. 11, 2020) (Schengen Area — i.e., 26 European countries, including Austria, France, Norway, Poland, and Spain, that generally allow people to travel freely across their borders); Proclamation No. 9996, 85 Fed. Reg. 15,341 (Mar. 18, 2020) (United Kingdom and Ireland); Proclamation No. 10041, 85 Fed. Reg. 31,933 (May 24, 2020) (Brazil)."

[Crazy Cat 42,032]

3 hours ago, Bastien & Valérie said:

Yes it unfortunately seems to be the case. But it can be a good argumentation basis for future case as Proclamations are named: 

 

"See Proclamation No. 9984, 85 Fed. Reg. 6,709 (Jan. 31, 2020) (Republic of China); Proclamation No. 9992, 85 Fed. Reg. 12,855 (Feb. 29, 2020) (Iran); Proclamation No. 9993, 85 Fed. Reg. 15,045 (Mar. 11, 2020) (Schengen Area — i.e., 26 European countries, including Austria, France, Norway, Poland, and Spain, that generally allow people to travel freely across their borders); Proclamation No. 9996, 85 Fed. Reg. 15,341 (Mar. 18, 2020) (United Kingdom and Ireland); Proclamation No. 10041, 85 Fed. Reg. 31,933 (May 24, 2020) (Brazil)."

That section has a major error.  The Republic of China was never part of any travel ban.    The Republic of China is also known as Taiwan.  The section should have said "People's Republic of China".......

Edited December 8, 2020 by Lucky Cat

[JeanneAdil 6,606]

12 minutes ago, Bastien & Valérie said:

Ok thank you for you input, that is sad. Is there an opportunity to start a similar case maybe ?

Anyone can but i would wait for the new President in January 

[HRQX 4,145]

4 hours ago, Lucky Cat said:

all K-1 applicants or only the plaintiffs?

It's only the Plaintiffs. The judge is hindered by the way the Plaintiffs' own legal team structured the complaint filing. In the complaint they also requested writ of Mandamus order, and thus the whole complaint could only be limited to Plaintiffs. The most the judge can do for non-Plaintiffs in the ongoing lawsuit is to verbally scold the Government lawyers:

 

Also, those that get visas cannot travel directly to the US if they are not exempt to the proclamations: https://travel.state.gov/content/travel/en/News/visas-news/k-visa-processing-update.html "Even if issued visas, K-1 plaintiff applicants remain subject to the regional P.P.s and, unless able to meet the criteria for an exception, are barred from entering the United States if they have been present in a country covered by a regional P.P. in the 14 days prior to entry."

Edited December 8, 2020 by HRQX

[Bastien & Valérie 0]

26 minutes ago, HRQX said:

It's only the Plaintiffs. The judge is hindered by the way the Plaintiffs' own legal team structured the complaint filing. In the complaint they also requested writ of Mandamus order, and thus the whole complaint could only be limited to Plaintiffs. The most the judge can do for non-Plaintiffs in the ongoing lawsuit is to verbally scold the Government lawyers:

 

Also, those that get visas cannot travel directly to the US if they are not exempt to the proclamations: https://travel.state.gov/content/travel/en/News/visas-news/k-visa-processing-update.html "Even if issued visas, K-1 plaintiff applicants remain subject to the regional P.P.s and, unless able to meet the criteria for an exception, are barred from entering the United States if they have been present in a country covered by a regional P.P. in the 14 days prior to entry."

Thank you it was very helpful !