US district court order opens doors for non-immigrant visa holders like H-1Bs

US district court order opens doors for non-immigrant visa holders like H-1Bs

Lubna.Kably @timesgroup.com

07.10.2021

A US district court judge has prohibited the use of travel bans as an excuse to not process or issue visas, such as H-1Bs — a non-immigrant visa. While the US is gearing up to open its doors from November to fully vaccinated travellers, this decision by the district court of Columbia, pronounced on October 5, is good news for H-1Bs and their dependants (such as spouses holding H4 visas) who had found themselves stranded in India while visiting their family. H-1Bs who were allotted visas under the lottery mechanism also found themselves unable to get their visas processed.

Travel bans were imposed under a ‘presidential proclamation’ earlier by former President Donald Trump and later by President Joe Biden. A fallout was that visa processing came to a halt. No non-immigrant visas were issued unless the individual could claim a carve out under the ‘National Interest Exemption’, which itself was a challenging task.

On April 30, 2021, US President Joe Biden issued a proclamation restricting the entry of non-immigrants (green card holders were exempt from the ban) who were physically present within India during the 14-day period preceding their entry or attempted entry into the US. TOI had covered filing of the lawsuit by several individuals including Indian nationals in its edition of June 3.

The lawsuit complaint had stated: “Several plaintiffs are long-term employees of US companies, who have been stuck outside of the US and whose careers are at risk, as they cannot return to their jobs, homes, and communities.” Before the district court, they claimed that the proclamations had hurt them as the US department of state “has refused to process their non-immigrant visas”, “to schedule interviews or adjudicate their visa applications”, or “to issue the visas”. They said currently “…consular officials are categorically precluded from processing their visa applications unless they fall under an exemption, regardless of the capacity and reopening status of local consulates and embassies.” While Judge James E Boasberg did not order the department of state to immediately adjudicate the plaintiff’s cases he has debarred the use of the travel ban proclamation as an excuse to refuse visa processing. Greg Siskind, one of the immigration attorneys who represented the plaintiffs, said, “This is a pretty important win because it was specifically aimed at killing the illegal interpretation across the board. This will also hopefully bar a president in the future from abusing this power.”