The State Department cannot rely on presidential proclamations to refuse to adjudicate visas, Judge James E. Boasberg in the U.S. District Court for the D.C. District has held.
Judge Boasberg said nothing about what the State Department needs to do in line with its opinion, but established that the Administration’s travel restrictions did not include visa restrictions.
Since the issuance of the Presidential Proclamations restricting the entry of foreign nationals who have spent any time during the 14 days prior to their entry in over 30 countries (China, Iran, the UK and Ireland, the Schengen Zone countries, Brazil, South Africa and India), most U.S. Consulates abroad have been refusing to issue or even schedule visa interview appointments for individuals who do not qualify for National Interest Exceptions (NIEs) to the Proclamation. This has meant that even foreign nationals who were willing to wait out the 14 days in non-restricted countries would have difficulty getting a visa. It was a Catch-22. If they stayed in a restricted country, they might not get a visa because they did not qualify for an NIE and if they went to a non-restricted country, they might not get visas because they were third-country nationals.
The court recognized that this whole issue may soon become moot because the Biden Administration has said that the 14-day travel restrictions will be lifted in early November. But even when the restrictions are lifted and the Consulates go back to issuing visas rather than NIEs, it is likely that backlogs and delays will persist.
Visa processing at U.S. Consulates abroad was effectively suspended from March through July 2020. Since then, Consulates started a phased resumption of services. However, services are still not fully restored due to various COVID-19 restrictions abroad and many U.S. Consulates are not even fully staffed. As Consulates rely on visa fees rather than government funding, some have been unable to hire new staff due to the lack of fees. This means that it may be difficult for Consulates to staff up to eliminate backlogs.
If you have any questions about the effect of the D.C. Court’s ruling, Jackson Lewis attorneys are available to assist.