Siskind’s Notes – The Visa Ban Litigation Administrative Record

Posted on: August 18th, 2020
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Siskind Summary – Administrative Record – Gomez v. Trump (page numbers start with 0000).

[NOTE – Apologies for not including the link to the actual document which you can find here – https://www.dropbox.com/s/6r8r0j30cbzb8dv/Gomez%20Administrative%20Record%20Materials%20-%20081720%20REDACTED.pdf?dl=0 (thanks Chuck Kuck for posting).

March 20, 2020 cable to all consular posts  – all posts are directed to suspend all nonmmigrant and immigrant visa services due to COVID. 000012

 

“Posts may continue processing interview waiver cases and immigrant visa 221(g) cases not requiring the applicant to come in for an interview.” 000012

 

NVC and KCC will suspend most immigrant/DV pre-processing; NVC will continue to process age-out cases. 000013

 

The machine readable visa fee is valid and may be used for a visa appointment in the country where it was purchased within one year of the state of payment. 000014

 

 

 

April 25, 2020 cable to all posts – Issued in response to 4/22/2020 Proclamation. The cable notes it’s a suspension on entries, not visas. 000017

 

Despite claims that local officers were being given autonomy in national interest exceptions, for non-health care NIEs, officers were required to email documentation about the case to an Visa Office email address and await a response. Requests expected to be area. Examples include medical emergencies, age out cases and other cases where urgent travel is needed. 000019

 

“Due to the worldwide suspension in routine visa services announced in mid-March, NVC and KCC have already suspended transmission to posts of most immigrant and diversity visa cases. Applications should be denied pursuant to 212(f) using refusal code [redacted – why?]. Applicants may be reconsidered when ban is lifted. 000020

 

The Proclamation doesn’t impact K visas. 000021

 

 

April 28, 2020 cable to all consular posts from Secretary of State. A plan for resumption of visa services is being developed. No resumption by a post without a specific instruction to do so even if the host country has lifted most restrictions. 000023

 

DOS is considering the following factors in reopening:

  • Protecting DOS personnel
  • Processing capacity at posts and in the Visa Office
  • Conditions in the US
  • Economic considerations 000024

 

Due to the 4/22 ban, only IV applicants that the post believes meet an exception to the Proclamation and are in a “mission critical category” should be adjudicated and only after submitting to DC higher ups.

 

NVC will continue expediting age-out cases. They may adjudicate 221(g) cases as resources allow. 000024

 

 

June 12, 2020 cable to consular posts

 

Spouse/minor children of USC cases are considered “mission-critical”. Does not include those considered under 21 because of CSPA. Posts may adjudicate these cases that were previously cancelled.

 

For IV cases, posts should not allow appointments without at least an eight business day wait to allow NVC time to schedule, transfer cases and notify applicants. Which also is needed to allow applicants to make travel plans and schedule medical exams. 000026

 

 

June 30, 2020 cable to consular posts

 

Response to 6/22 Proclamation. Only mission-critical and emergency visa services are allowed. 000028

 

Consular officers may issue replacement visas to aliens who’s original IV was valid on April 23, 2020. Age outs will be considered for a national interest exception if the applicant is within two-months or less of his or her 21st birthday.

 

NIVs – Restates categories covered by PP 10052 and notes the H-1B1s are not included. 000029

 

10052 only applies to people who meet all three conditions of section 3(a) of 10052 [note – this is contrary to information being provided by @travelgov around that time]. “Unlike some other proclamations where individuals with valid visas on the effective date are only not subject to the Proclamation when applying for entry on a visa that is in one of the categories of NIVs suspended by the PP. In other words, someone with a valid H-1B, H-2B, L, or J visa can reenter the US until the expiration date of the visa. Any future applications in those categories falls under the suspension applications (unless an exception applies). [NOTE – This was highly disputed when @travelgov was tweeting it out]. 000030

 

National interest exceptions for being “essential to US food supply”. Only applies to H-2Bs. Look to I-129 petition and the job title in the temporary labor certification. Bartenders, cooks, dishwashers and waiters don’t count. Check with a CA/VO/F analyst if you’re not sure. H-1Bs, Js and Ls in food supply might qualify under another national interest exception. 000031

 

Guidance on national interest exceptions based on defense, law enforcement, diplomacy or national security or based on medical care to COVID patients or medical research are forthcoming. Posts should identify potential cases and then hold them until guidance is issued. [this explains why people were being 221(g)’d] 000032

 

People not subject to 10052 may have their 221(g)s completed and visas issued. “Individuals reapplying in the same NIV classifications as one of those covered under the suspension are subject to the proclamation; however, a national interest exception may be appropriate in some cases, for example, consideration should be given to cases where the applicant is returning to the US to continue the work the applicant had been performing under the expired visa.” [Why did it take 6 weeks to make this national interest exception public?]

 

Posts may continue to schedule mission critical and emergency IV and NIV visa interviews as resources allow, but should applicants not qualify for a national interest exception, posts should refuse the visa based on INA 212(f). Refusals may be reconsidered once the ban is no longer in effect and the applicant is not required to make a new visa application. 000032

 

 

July 8, 2020 cable to all posts

 

Beginning on 7/15 posts may begin a phased approach to the resumption of routine visa services. 000035

 

Posts that issue both IVs and NIVs will need to consider a balance between them. Posts might consider cross-training staff.

 

The Visa Office is establishing guidelines regarding prioritization for scheduling of IV appointments to help posts, NVC and KCC plan ahead. The Department expects significant interview wait times given pent-up demand and staffing gaps at most posts. Overtime is not expected because of budget constraints. 000036

 

IV – processing posts in Phase Zero and One

 

Prioritize cases that may fall under an exception to PP 10014. Posts in Phase One may continue processing only emergency and mission-critical IV cases (immediate relatives, health care professionals, age outs) and they can continue 221(g)s with exceptions under the PP. And replacement visas can be issued if they were adjudicated before 4/23. Posts must consult with CA Fee Team for a determination of whether a new fee must be collected before reissuing the IV. 000036

 

IV – processing posts in Phase Two – posts should plan two months in advance to allow NVC time to schedule cases. Immediate relative cases should be prioritized, but other types of IV cases still need to be adjudicated each month. Posts should take steps to avoid their IR backlog from growing either in absolute terms or relative to their family-based or employment-based backlog. 000036

 

IV – processing posts in Phase Three – Posts may resume routine visa services for all IV classes and cases excepted under PP 10014 based on local conditions. 000037

 

Posts may begin to reschedule and process IV appointments for classes except under 10014 cancelled due to the suspension of routine visa processing. This includes EB-5s/IVs for Armed Forces, K visas. The prioritization for IV processing is as follows:

 

  • Previously cancelled appointments
  • Adoptions, age outs, humanitarian cases
  • Immediate relatives
  • K-1s “Because I-129 petitions expire after 4 months, many I-129s may have expired by the time post is able to begin processing K visa cases. Posts may revalidate I-129s even after they have expired.”
  • Family/Employment/DV excepted by PP 10014

 

000036

 

 

NIVs

 

No processing of banned categories unless the applicant qualifies for an exception (which will be determined by the consular officer who adjudicates the application. 000038

 

NIVs in Phase Zero and One and posts impacted by a travel ban

 

  • Visa processing restricted to emergency or mission critical
  • Exceptions may be used as a guide for additional mission-critical/emergency even in areas not covered by Proclamations
  • Interview waiver cases may be processed; no processing of IW cases for applicants of nationalities with 4%+ overstay rates for FY 2019
  • Previously refused 221(g)s not requiring an interview. 000039

 

NIVs in Phase Two

 

  • Posts may open routine appointment slots for F-1s, M-1s and J-1s (not subject to ban). Also, routine appointments for E, I, O and Ps. Students with programs starting soon are to be prioritized. Urgent E, I, O and Ps as resources permit. 000039

 

NIV Phase Three –

 

  • Routine visa processing at a level determined by the consular section chief based on local conditions and in consultation with EAC. Routine visa services can resume in full and all NIV categories can be processed. Continue to prioritize mission-critical and emergency cases. Routine B-1/B-2 are lowest priority except for emergencies.

 

Posts can seek exceptions from Washington.

Update web sites to clearly state their operating status. Fee guidance is being finalized. 000040

 

Services performed on behalf of USCIS – instructions provided for all three phases for parole/boarding foils. 000040

 

 

July 14, 2020 – Cable to all posts

 

Age outs (excluding CSPA beneficiaries) are national interest exceptions for people who are aging out before the proclamations expire or within two weeks thereafter. Plus, additional NIV national interest exceptions. 000043

 

Providing care for a US citizen or legal permanent resident to include alleviating the burden of care from a medical or other institution is a national interest exception for IVs. 000045

 

 

NIVs – Exceptions (noting that further guidance will be transmitted later.

 

Expanding H-1B health care exception to include researchers working on other public health benefit categories (cancer/communicable disease, for example). Secondary effects of COVID. 000046

 

H-2B exception discussed for those working on military bases construction. 000046

 

J-1 exemption for au pairs working with children with particular needs. Au pair must have special skills and children with medical needs must be diagnosed by a medical professional. Other au pair exceptions noted. 000047

 

J-1s coming for programs created by bilateral agreements with foreign governments. Posts should coordinate with the post’s Public Affairs section. Also, interns, trainees and teachers working in “G” programs noted. 000047

 

H-4s, L-2s and J-2s can get exceptions if they are coming to join a principal beneficiary currently in the US or with a valid visa. 000048

 

Instructions on how consular officers need to enter information on national interest exceptions in the CCD computer system. 000049

 

If you qualify for an exception to PP 10052, you also qualify for a 14-day ban exemption.

 

Reference made to a CA Web Portal with “Presidential Proclamations Adjudication Guidance. [Did we get this?] 000049

 

 

July 14, 2020 cable  – New Options to Consider When Issuing Replacement IVs

 

Covers IVs – people with expiring visas and expiring medicals. One month extension for those with exams completed between 1/1/2020 through 6/30/2020 (e.g. applicants whose medical exams are valid for 6 months are now valid for 7 and those with exams valid for 3 are valid for 4). 000051

 

Reissuance of IV guidelines provided including having to get a new medical and pay a new fee if the one-month extension won’t work. Most applicants will have to pay a new visa fee. A new IV visa may only be reissued if the visa was valid still on 4/23/2020.  000052

 

 

August 7, 2020 cable – NIV ban updates

 

Consular section chiefs may now approve national interest exceptions under 10052. Adds new categories –

 

  • Those H-1Bs coming to resume employment
  • Reciting of the 2/5 factor test; there’s a redaction in the section on LCAs that’s weird. Regarding the 5th factor on financial hardship to the employer, “Officers may consider information provided during the interview or information from the employer included in the petition application file in PIMS. Please note that consular officers must NOT require any documentation from the petitioner in order to make this determination. Consequently, consular officers may not often have sufficient information to determine this indicator is met.” 000057

 

H-2Bs – 2/3 factors – redactions though not clear why? 000058

 

L-1As – exemptions for companies doing business with the US government or helping meet a foreign policy objective; returning to work, or meeting 2/3 factor test. Tracks closely to public statement.

 

L-1Bs – Same as L-1As except 3/3 factors  (tracks public guidance). 000059

 

Significant redactions on 000060

 

“Not all “National Interest” Exceptions are “Mission Critical”. Just because a case is accepted as mission critical does not mean a consular officer doesn’t have to independently conclude national interest exception applies.

 

“Absent eligibility for an exception, including an NIE, individuals outside the US on 6/24, with or without a valid visa, cannot be reissued a new visa in one of the suspended classifications. If an applicant outside the US had a valid H-1B, H-2B, J-1, L or derivative visa on 6/24, they are not subject to PP 10052 for the purposes of seeking admission to the US until the visa expires, at which point the applicant would become subject to the Proclamation. Individuals who were in the US on 6/24 are not subject. 000061

 

 

August 7, 2020 – Similar memo to the one above. It does say that KCC, as part of its routine pre-screening, will also review the petition and LCAs (for H-1B cases) and enter notes in the DS-150 to assist officers determine whether an applicant might benefit from an exception. No pre-screening for Blanket L applications. 000070

 

 

DOS Action Memo for the Secretary –

 

Seeks a delegation of his authority to the Assistant Secretary for Consular Affairs to determine (1) that work to be performed by an immigrant is essential to combating COVID, (2) that an immigrant’s entry would further US law enforcement objectives and (3) that an immigrant’s entry would be in the national interest. 000073

 

 

 

Memo  – Announcing 4/22 order and advising posts to continue processing mission-critical and emergency visa services. Sets out the procedure for requesting a national interest exemption – requires consular officers to submit the case for approval to the Visa Office in DC.

 

“Requests for the national interest and law enforcement exceptions are expected to be rare and the process may take several days.” Because the order is short in duration (valid until 6/22), there must be an urgent need to travel. Travelers may be subject to 14 day quarantine upon entering the US. 000085

 

NVC and KCC have already suspended transmission to posts of most immigrant and diversity visa cases.

 

 

July 13, 2020 Action Memo for Assistant Secretary Carl Risch – recommends delegating to consular officers the ability to make national interest exceptions.

 

“Since April 23, the Department of State has processed 14 national interest exception requests for cases with immigrant visa applicants who are subject to aging out before the expiration of PP 10014 or shortly thereafter; no age out exception requests were refused. Seven of these cases included family members who also applied for immigrant visas and were traveling to the United States with the applicant subject to aging out.”

 

 

 

August 6, 2020 Action Memo for Asst Sec Risch. This is seeking approval for new NIE categories announced on 8/12/2020 000122

 

 

Email (redacted headers) from 6/22/2020 – short summary 000153

 

Email 7/16/2020 – redacted headers – webinar will be held on 7/15 regarding consular reopenings; there’s a portal with all the recent proclamations; attachment with the language to use on web sites regarding resumption of services

 

Email 4/29/2020 – “all routine visa services remain suspended”; age out cases are considered mission critical and NIE eligible

 

Email 4/28/2020 – Message to posts – telling posts to refuse cases while they wait on the Visa Office to approve the NIE.

 

Powerpoint – CA Webinar on Covid-19 – Dated 7/1/2020 – The first six pages are redacted; notes that K-1s are not included in either ban; last five screens redacted

 

Suspension on routine visa services STILL applies

 

 

Powerpoint – 7/15/2020 CA Webinar on COVID-19 SPECIAL EDITION

 

  • 1st four screens redacted
  • No NIE needed for the following: I-140 professionals, EB-5, exempt immediate relative green cards
  • NIEs needed for age outs (Consular section chief approval); all others must be sent to VO
  • Ks not subject
  • Then 8 more screens of redactions

 

Powerpoint – 7/29/2020 CA Webinar on COVID-19

  • Five pages of redactions
  • Says they’re still working on NIE determinations for 10052
  • Then six more pages of redactions

 

Powerpoint – 8/12/2020 – CA Webinar on COVID-19

 

  • 5 pages of redactions
  • Phased resumption of visa services STILL applies
    • Posts may, in their discretion, accept individual cases that may qualify as an exception as mission critical – these should come in as emergency appointment requests
    • Posts should update their websites with guidance on what visa services are being provided at post and how a person can request an emergency appointment
    • Consulates have had to make requests to Visa Office to start student visa processing; 9 approved; 18 pending; 1 rescinded
    • NIEs made at time of interview; cases decided case by case by CA A/s if outside scope of what officers are allowed to determine on their own.
    • Five more pages of redactions

 

 

IV Adjudication Flowchart During the COVID Outbreak – LAST UPDATE 7/17/2020 (where are the previous versions of this? Why are there redactions in this?

 

“Identify if the applicant’s travel history and future travel plans are affected by the PPs on regional travel bans, and, if so, qualifies for an Exception.” Then “Refuse the application ensuring all actions are documented in case notes and all correct refusal codes are applied.”

 

“Phase Three – 000258

 

“may schedule all IV cases, prioritizing those excepted by PP 10014 in the following order:

 

  • Appointments cancelled due to suspension
  • Adoptions, age outs, humanitarian cases, SIVs, V92/V93s, SB-1s
  • IRs/CRs
  • Ks
  • Family preference excepted by 10014

 

 

A number of useful charts on pages 270-272

 

Sample denial letters – page 274