State Department Cannot Stop Visa Auction Due to COVID-19 Travel Bans, Federal Judge Rules | Jackson Lewis PC

The State Department cannot rely on presidential proclamations to refuse to rule on visas, said Judge James E. Boasberg of the U.S. District Court for the District of DC.

Justice Boasberg said nothing about what the State Department should do in accordance with his advice, but ruled that the administration’s travel restrictions did not include visa restrictions.

Since the publication of the presidential proclamations restricting the entry of foreign nationals who have stayed during the 14 days preceding their entry in more than 30 countries (China, Iran, United Kingdom and Ireland, countries of the Schengen zone, Brazil, Africa South and India), most US consulates abroad have refused to issue or even schedule visa interview appointments for people who do not qualify for National Interest Exceptions (NIEs) to the Proclamation. This means that even foreign nationals who were willing to wait the 14 days in unregulated countries would have difficulty obtaining a visa. It was a Catch-22. If they stayed in a restricted country they might not get a visa because they were not eligible for an NIE and if they went to a non-restricted country they might not obtain a visa because they were third country nationals.

The court acknowledged that this whole matter may soon become moot, as the Biden administration said the 14-day travel restrictions would be lifted in early November. But even when the restrictions are lifted and consulates resume issuing visas rather than NIEs, the backlogs and delays are likely to persist.

Visa processing at US consulates abroad was effectively suspended from March to July 2020. Since then, the consulates have begun a gradual resumption of services. However, services are still not fully restored due to various COVID-19 restrictions overseas, and many U.S. consulates are not even fully staffed. As consulates depend on visa fees rather than government funding, some have been unable to hire new staff due to lack of fees. This means that it can be difficult for consulates to recruit staff to clear backlogs.

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