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Visa Bans Under Biden Administration Review, Attorney Says (1)

Feb. 10, 2021, 9:43 PM; Updated: Feb. 10, 2021, 10:17 PM

Lawyers for the U.S. Justice Department told a federal court Wednesday that the Biden administration is still reviewing Trump-era travel bans that bar certain visa holders from entering the U.S.

“The agencies are considering their options,” Justice Department attorney Thomas Benton York told U.S. District Judge Amit Mehta in Washington during a video status conference in a lawsuit by visa applicants challenging directives issued by former President Donald Trump.

“Ultimately, the proclamation itself, the administration is actively reviewing,” York said.

The lack of action means that April and June proclamations signed by Trump remain in place, barring entry for green card applicants and certain visa holders, including H-1B and H-4 visas, which are used by workers in specialty occupations and their families, as well as L visas for intracompany transfers and most J visas for work- and study-abroad programs.

The pandemic-related restrictions remain in place until March 31.

Clock Ticking

Mehta ruled in September that the travel ban should be lifted for winners of the annual diversity visa lottery, and directed U.S. State Department consulates to issue the visas to recipients.

Later that month, the U.S. District Court for the District of Columbia judge also reserved 9,000 visas to be issued at the end of the litigation after consulates abroad weren’t issuing the paperwork fast enough.

Participants in the visa program are under a tight time frame, Karen Tumlin, director and founder of Justice Action Center and counsel for the plaintiffs, told Bloomberg Law ahead of the hearing. Essentially all of the visas were issued in September after Mehta’s initial ruling, so individuals stuck abroad because of the travel bans are now hitting the six-month point where those documents expire.

Once that date hits, “we’re back in the same pickle, because you can’t issue the visa if a release hasn’t been ordered” by the courts, Tumlin said.

The visa issuance problem was kicked back to Mehta on Tuesday by the U.S. District Court of Appeals for the District of Columbia, which was handling an appeal from plaintiffs in the case who weren’t granted relief in the September ruling. The appellate court’s order called on Mehta to “determine from the government whether it intends to pursue enforcement of the Proclamation.”

Mehta scheduled another hearing for Feb. 18, with briefings due over the next week from the parties on potential resolutions to preserve the diversity visas.

(Updated with information on the next hearing in the 11th paragraph.)

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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