Visa Crunch

United States: Good News For Stranded H1-B Visa Holders In India

A US district court judge has ruled that travel bans cannot be used as an excuse to refuse to process or issue visas, such as H-1Bs (non-immigrant visas). While the United States prepares to welcome fully vaccinated visitors in November, this ruling by the District Court of Columbia, issued on October 5, is welcome news for H-1B workers and their dependents (such as spouses on H4 visas) who were stranded in India while visiting family.

People who were given H-1B visas through a lottery system were also unable to get their visas completed. Former President Donald Trump and later President Joe Biden used a ‘Presidential Proclamation’ to impose travel restrictions.

As a result, visa processing was put on hold.

Non-immigrant visas were not issued unless the person could establish a ‘National Interest Exemption,’ which was a difficult undertaking. Biden issued a proclamation on April 30 barring the entry of non-immigrants who were physically present in India during the 14-day period preceding their entry or attempted entry into the United States (green-card holders were exempt).

It was previously stated that multiple persons, including Indian nationals, had filed a case. “Several plaintiffs are long-term workers of US corporations who have been stranded outside of the country and whose careers are jeopardized because they are unable to return to their employment, families, or communities. While waiting for the Department of State to resume non-immigrant visa processing, all individual plaintiffs have incurred additional fees, undue stress, and irritation,” the lawsuit alleged.

As a result of the Presidential Proclamation, the US Department of State has ‘refused to process their non-immigrant visas,’ to schedule interviews or evaluate their visa applications,’ or ‘to issue the visas,’ according to the petition. “Regardless of the capacity and reopening status of local consulates and embassies, consular employees are categorically prohibited from processing their visa applications unless they come under an exemption,” it added.

While Judge James E. Boasberg did not direct the US Department of State to quickly consider the case, he did rule that the travel ban proclamation could not be used as a reason to deny visa processing. “This is a really major success for us since the litigation was deliberately intended at eradicating the illegal interpretation across the board, not just for the plaintiffs,” said Greg Siskind, one of the immigration attorneys representing the plaintiffs. This will potentially avoid future Presidents from misusing their position.”

“We are grateful that Judge Boasberg saw through the Department of State’s cascade of baseless legal theories to eventually and conclusively rule that it is a breach of the federal law to refuse to issue visas merely because a President has declared an entry ban under the Immigration and Nationality Act – 212,” said Charles Kuck, another immigration lawyer representing the plaintiffs (f).

“We demand that the State Department end its absurd and legally pointless national interest exception program and return to the job of issuing visas around the world, regardless of those entrance bans.”

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