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K-1 Visa Lawsuit Updates

Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick updates you regarding the status of K-1 visa interview scheduling at U.S. Consulates and Embassies worldwide, as well as the status of a new lawsuit that seeks to push K-1 visa cases through the pipeline.

Want to know more? Keep on watching for more information.

Overview

Since the beginning of the Coronavirus pandemic, U.S. Consulates and Embassies abroad have refused to schedule K-1 visa applicants for interviews and have instead opted to prioritize interview scheduling for certain spouses of U.S. Citizens. As a result, thousands of couples have remained separated for months on end with virtually no end in sight. This has been a very puzzling phenomenon given that foreign fiancés should be given priority for visa issuance based on their qualifying relationship to a U.S. Citizen. In some cases, K-1 visa applicants have had their interviews cancelled with no follow-up from the Consulate or Embassy regarding future rescheduling, while in others K-1 visa applications have not moved past the NVC stage for interview scheduling.

In our own experience very few K-1 visa applicants have received visa interviews and the cases that have been prioritized are because of serious medical emergencies or other urgent needs. We have been successful in receiving interviews only where the applicant has received approval for expedited processing.

In an unexpected turn of events on August 30, 2020, the Department of State released a cable stating that effective August 28th K-1 visa cases would receive “high priority.” The cable directed K-1 visa applications to check the website of their nearest U.S. Embassy or Consulate for updates on the services offered by the post.

Unfortunately, this cable did not provide applicants with any relief because it was largely ignored by U.S. Consulates and Embassies. Many applicants contacted their posts directly and were given generic messages stating that the post was not able to provide services for K-1 visa applicants until further notice. These new revelations ultimately forced K-1 applicants to seek relief from the courts.

On September 17, 2020, attorneys Charles Kuck and Greg Siskind banded together on behalf of their clients and filed a lawsuit challenging the government’s refusal to issue visas for K-1 visa applicants. Approximately 150 couples have been included in the lawsuit known as Milligan et al. v. Pomeo et al. (1:20-cv-02631) which was filed in the United States District Court for the District of Columbia with federal judge James Boasberg presiding. These plaintiffs represent K-1 visa applicants who have been unable to receive a visa interview at various Embassies and Consulates worldwide. The lawsuit challenges the unreasonable delays that thousands of applicants have faced.

On Friday October 23rd the plaintiffs filed a motion seeking injunctive relief in the form of a temporary restraining order to immediately stop the government from denying the issuance of K-1 visas as a result of various presidential proclamations that prohibit individuals physically present in certain countries from entering the United States. As you know the President issued various proclamations preventing foreign nationals from entering who have been in any of the following countries during the past 14 days:

  • China
  • Iran
  • European Schengen area
  • United Kingdom
  • Republic of Ireland
  • Brazil

These individuals have encountered even greater obstacles with no visas being issued altogether until further notice. In addition, plaintiffs argue that they will suffer immediate irreparable harm if a temporary injunction is not issued, that they are likely to succeed on the merits of the case, and that the public interest weighs in favor of granting the TRO to the plaintiffs.

What happens if the injunction is issued?

If the judge is convinced that the plaintiffs will suffer immediate irreparable harm, he may issue a temporary injunction that will immediately stop the government from refusing to issue K-1 visa interviews so long as the lawsuit remains pending in court. Essentially this would force the government to process K-1 visa applications and schedule applicants for their interviews.

Who may benefit?

If an injunction is issued all K-1 visa applicants will have the opportunity to benefit and receive their visa interviews.

As always we will continue to monitor the status of the pending lawsuit and notify our readers of any new developments as they become available.


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