District court declared suspension of K-1 Visa Issuances Outlawed, but held that the delays are reasonable

Published: September 1, 2021

The COVID pandemic, which had recently shaken the foundations of our society, continues to proliferate as the year progresses. In response to this pandemic, President Trump had issued a series of proclamations suspending the entries of all aliens coming from China, Iran, Schengen Area, United Kingdom, Ireland, and Brazil into the United States. The Department of State, in reliance of these proclamations, suspended the issuance of visas, which includes the fiancé(e) K-1 nonimmigrant visa. This created more than its fair share of concerns for visa applicants. For example, the Plaintiffs in the case of Milligan v. Pompeo, whom the District Court of Columbia referred to as “pair[s] of star-crossed lovers”, filed a motion for preliminary injunction enjoining the State Department’s visa-processing suspension and compelled the government to adjudicate their visas more expeditiously.

The fiancé(e) K-1 nonimmigrant visa is a pathway for a US citizen and an alien fiancé(e) that allows the latter to travel to the United States marry and live together. In line with this reasoning, the Plaintiffs in Milligan alleged that the government’s action against them in suspending the issuance of their visa was baseless. They argued that under 8 U.S.C. § 1182(f), the President can only suspend the entry of all aliens or any class of aliens when deemed necessary, but cannot suspend the issuances of visas. The District Court agreed with the plaintiffs and held that the word “entry” does not include “visa issuances”. Therefore, the Court found that the Department of State acted carelessly when it suspended the visa issuances based on these proclamations.

Nonetheless, the Defendants continued to contend that it cannot compel the consular officials to issue visas since it is settled that they are given a wide latitude of discretion to issue or withhold any of them. Further, they argued that circumstances vary from one person to another and that prior to the pandemic, these visas were being processed timely. The consular officials’ determination, in their argument, is never subject to judicial review. The Defendants do not deny that there are currently delays, but the Defendants argue that those delays are reasonable, given the purpose of safeguarding the health and welfare of U.S. mission staff and the public.

Ultimately, the District Court of Colombia found the suit partially meritorious, and issued a contemporaneous Order partly granting the Plaintiff’s Motion for a Preliminary Injunction on the issue of suspension of issuances of visas but denying on the issue of unreasonable delays.