K1 Visa Issuance Affected by EO after all?

[HRQX 4,145]

5 minutes ago, Snb3189 said:

I dont believe any of the previous presidential proclamations in March and April banned the K1 visa (verbatim, in writing) either though, no?

The April 22 proclamation only applied to certain Immigrant Visas, so K-1 wasn't affected by that proclamation.

 

The "Implementation and Enforcement" section of Schengen Area, UK, Ireland, Iran, China, and Brazil PPs said: "The Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish.  The Secretary of Homeland Security shall implement this proclamation as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish." That affected both visa issuance and entry. Thus, that affected K-1 issuance in those countries as the vast majority of applicants don't meet the narrow exceptions.

[Jas&Skip 16]

Hey does anyone from Germany know how the German embassy deals with it?

[HRQX 4,145]

9 minutes ago, powerpuff said:

"The consular officer shall determine, in his or her discretion, whether a nonimmigrant has established his or her eligibility for an exception in section 3(b) of this proclamation"

Still doesn't cover all NIVs. What you quoted mentions section 3(b). Section 3(b) mentions Section 2. Section 2 only lists certain Nonimmigrant Visas (H-1B, H-2B, J category, and L category).

13 minutes ago, powerpuff said:

So this is maybe why the London embassy is interpreting K-1 visas as also suspended under this PP, as @Ah96 said.

 

Unfortunately for all of us, I think we're at the mercy of the consular officers 😟

Regardless of what London said the April 22 PP and June 22 PP don't affect K-1. The UK and Ireland PP does affect K-1 issuance if the applicant doesn't meet very narrow exceptions.

[goldhex 21]

20 minutes ago, HRQX said:

The April 22 proclamation only applied to certain Immigrant Visas, so K-1 wasn't affected by that proclamation.

 

The "Implementation and Enforcement" section of Schengen Area, UK, Ireland, Iran, China, and Brazil PPs said: "The Secretary of State shall implement this proclamation as it applies to visas pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish.  The Secretary of Homeland Security shall implement this proclamation as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish." That affected both visa issuance and entry. Thus, that affected K-1 issuance in those countries as the vast majority of applicants don't meet the narrow exceptions.

If this is the case, it's incredibly frustrating that it hasn't been clearly communicated by the Embassy/DoS

[powerpuff 5,984]

12 minutes ago, HRQX said:

Still doesn't cover all NIVs. What you quoted mentions section 3(b). Section 3(b) mentions Section 2. Section 2 only lists certain Nonimmigrant Visas (H-1B, H-2B, J category, and L category).

Regardless of what London said the April 22 PP and June 22 PP don't affect K-1. The UK and Ireland PP does affect K-1 issuance if the applicant doesn't meet very narrow exceptions.

Oh I see. So you're talking about the "Implementation and Enforcement" one that was issued for Schengen countries, UK, China etc... So is it still in effect? Or was this lifted with the June 22 proclamation?

[Angela & Brendon 160]

1 hour ago, Ah96 said:

Just a thought, please don’t bite my head off if you think it’s completely stupid. 
 

With this new EO set to be signed today, it now lists non-immigrant visas that are banned until the end of the year but K1 isn’t on the list... could this work well in our favour ? Or do you think we’ll just be brushed to side (again) ? 

I'm of the opinion that eventually this will work in our favour; at the moment it seems that the K1 visas are not being issued because of lockdown/travel ban, and once this opens up they will begin processing visas again and with the lessening of Work visas, these could be processed more quickly. I think if you were able to re-schedule an interview, take that as a good sign, because if they were doing a flat-out ban they would just not give an option to reschedule. It's stressful times but hang in there! 

[HRQX 4,145]

13 minutes ago, powerpuff said:

Oh I see. So you're talking about the "Implementation and Enforcement" one that was issued for Schengen countries, UK, China etc... So is it still in effect?

The following five proclamations are still in effect since they don't have an end date;

Schengen Area PP: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-2019-novel-coronavirus/

UK and Ireland PP: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-coronavirus-2/

Iran PP: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-coronavirus/

Mainland China PP: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/

Brazil PP: https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-novel-coronavirus/

13 minutes ago, powerpuff said:

Or was this lifted with the June 22 proclamation?

June 22 PP amended April 22 PP end date by extending it. It didn't affect the five proclamations mentioned above.

Edited June 22, 2020 by HRQX

[Jöla 27]

38 minutes ago, Jas&Skip said:

Hey does anyone from Germany know how the German embassy deals with it?

I do and I meant to post this to the forums earlier but haven't so far, so I apologize. But here it is.

We tried to request expedite visa processing due to hardships for my fiancée mid-May, and two weeks later, in early June, received this email from the Frankfurt IV unit:

 

Quote

Currently, we have suspended all routine visa services. Please see the following link regarding the suspension of routine visa services at all U.S. Embassies and Consulates: Suspension of Routine Visa Services.  In addition, under the Presidential Proclamation suspending Entry of Immigrants Who Present a Risk to the U.S. Labor Market (IVPP), and the and the Presidential Proclamation on the Suspension of Entry for Nonimmigrants and Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus (PPNCOV), we are unable to issue any visas other that those that are specifically excepted.  

The proclamations can be found here: https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-visa-services-and-restrictions.html.  Unfortunately, there is no exception under the PPNCOV for fiancée visas.  When the president lifts the restrictions under the IVPP, the PPNCOV, and we have resumed routine visa operations, we can process your fiancée’s visa application. Please monitor our website for information about when we will resume visa operations.  

I still think it is very ambiguous since they refer to the IVPP (4/22) twice, but only refer to K-1 not being expemt from PPNCOV.

[geowrian 22,336]

1 hour ago, powerpuff said:

"The consular officer shall determine, in his or her discretion, whether a nonimmigrant has established his or her eligibility for an exception in section 3(b) of this proclamation"

 

So this is maybe why the London embassy is interpreting K-1 visas as also suspended under this PP, as @Ah96 said.

It means the CO makes the decision if somebody meets an exception to the ban.

The PP itself does not ban K-1, so there is no exception necessary.

It does not grant them the authority to arbitrarily apply the EO to a particular case.

[MJ&YY 127]

As a K-1 Petitioner with nothing better to do in my non-working hours than waste countless hours frustrated with the current administration's approach to immigration and COVID, I decided to spend some time revisiting Proclamation 10014 (from April 22), the Immigration and Nationality Act (disclaimer: I don't practice immigration law but given where life has now led me, I figured I should learn a new area), and today's Proclamation (June 22).  There have been numerous posts in numerous threads about whether K-1s are affected by the Proclamations.  I'm of the opinion that no one can definitively say "Yes" or "No" with any accuracy.  Purely from a textual interpretation, I would say, "No, it shouldn't," but practically/operationally, "it probably does in some places, for now."  Until we see embassies and consulates open and actively not processing K-1 visas while performing other routine functions, we just don't know how the consular officers in each jurisdiction are interpreting the proclamations, and are left with no avenues to challenge their interpretations.

 

My read is that the only effect today's proclamation has on us (K-1 petitioners & beneficiaries) is that it extends Proclamation 10014 to the end of the year and leaves us subject to consular officer misinterpretation.  Other than that, today's proclamation extends suspension of entry for aliens under specific nonimmigrant visas (H-1B, H2B, J, L, and any aliens accompanying or following to join such alien), which is not relevant to those of us pursuing K-1s.  So back to April 22's Proclamation 10014 that now lasts until the end of year: As many have pointed out over the past two months, the proclamation only suspends "entry into the United States of aliens as immigrants" with certain exceptions to that prohibition.  People like to argue about nonimmigrant v. immigrant visa distinction and immigrant intent.  I am not going to discuss that.  I'm also not going to discuss the earlier travel ban proclamations, but they will continue to affect those of you in jurisdictions subject to those bans.

 

What I will point out is how 8 U.S.C. 1101(a)(15) defines "immigrant" (my underlining and bolding for emphasis):

 

The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—

...

(K) subject to subsections (d) and (p) of section 1184 of this title, an alien who—

(i) is the fiancée or fiancé of a citizen of the United States (other than a citizen described in section 1154(a)(1)(A)(viii)(I) of this title) and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission;

(ii) has concluded a valid marriage with a citizen of the United States (other than a citizen described in section 1154(a)(1)(A)(viii)(I) of this title) who is the petitioner, is the beneficiary of a petition to accord a status under section 1151(b)(2)(A)(i) of this title that was filed under section 1154 of this title by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa; or

(iii) is the minor child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien;

 

By definition, a fiancé(e) alien entering the U.S. on a K-1 visa who seeks to enter the US solely to conclude a marriage with the petitioner within 90 days is not an immigrant.  In other words, that person is not seeking entry into the United States as an immigrant subject to the April 22 proclamation.  But does every consular officer out there spend enough time thinking about K-1s and the 8 U.S.C. 1101(a)(15)(K)(i) definition of immigrant's exclusion of K-1s?  Probably not.  People get things wrong and it can take a long time to correct them, especially if correction has to go through legal processes.  So, fingers crossed each of our relevant jurisdictions gets it right.

[geowrian 22,336]

8 minutes ago, MJ&YY said:

As a K-1 Petitioner with nothing better to do in my non-working hours than waste countless hours frustrated with the current administration's approach to immigration and COVID, I decided to spend some time revisiting Proclamation 10014 (from April 22), the Immigration and Nationality Act (disclaimer: I don't practice immigration law but given where life has now led me, I figured I should learn a new area), and today's Proclamation (June 22).  There have been numerous posts in numerous threads about whether K-1s are affected by the Proclamations.  I'm of the opinion that no one can definitively say "Yes" or "No" with any accuracy.  Purely from a textual interpretation, I would say, "No, it shouldn't," but practically/operationally, "it probably does in some places, for now."  Until we see embassies and consulates open and actively not processing K-1 visas while performing other routine functions, we just don't know how the consular officers in each jurisdiction are interpreting the proclamations, and are left with no avenues to challenge their interpretations.

 

My read is that the only effect today's proclamation has on us (K-1 petitioners & beneficiaries) is that it extends Proclamation 10014 to the end of the year and leaves us subject to consular officer misinterpretation.  Other than that, today's proclamation extends suspension of entry for aliens under specific nonimmigrant visas (H-1B, H2B, J, L, and any aliens accompanying or following to join such alien), which is not relevant to those of us pursuing K-1s.  So back to April 22's Proclamation 10014 that now lasts until the end of year: As many have pointed out over the past two months, the proclamation only suspends "entry into the United States of aliens as immigrants" with certain exceptions to that prohibition.  People like to argue about nonimmigrant v. immigrant visa distinction and immigrant intent.  I am not going to discuss that.  I'm also not going to discuss the earlier travel ban proclamations, but they will continue to affect those of you in jurisdictions subject to those bans.

 

What I will point out is how 8 U.S.C. 1101(a)(15) defines "immigrant" (my underlining and bolding for emphasis):

 

The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—

...

(K) subject to subsections (d) and (p) of section 1184 of this title, an alien who—

(i) is the fiancée or fiancé of a citizen of the United States (other than a citizen described in section 1154(a)(1)(A)(viii)(I) of this title) and who seeks to enter the United States solely to conclude a valid marriage with the petitioner within ninety days after admission;

(ii) has concluded a valid marriage with a citizen of the United States (other than a citizen described in section 1154(a)(1)(A)(viii)(I) of this title) who is the petitioner, is the beneficiary of a petition to accord a status under section 1151(b)(2)(A)(i) of this title that was filed under section 1154 of this title by the petitioner, and seeks to enter the United States to await the approval of such petition and the availability to the alien of an immigrant visa; or

(iii) is the minor child of an alien described in clause (i) or (ii) and is accompanying, or following to join, the alien;

 

By definition, a fiancé(e) alien entering the U.S. on a K-1 visa who seeks to enter the US solely to conclude a marriage with the petitioner within 90 days is not an immigrant.  In other words, that person is not seeking entry into the United States as an immigrant subject to the April 22 proclamation.  But does every consular officer out there spend enough time thinking about K-1s and the 8 U.S.C. 1101(a)(15)(K)(i) definition of immigrant's exclusion of K-1s?  Probably not.  People get things wrong and it can take a long time to correct them, especially if correction has to go through legal processes.  So, fingers crossed each of our relevant jurisdictions gets it right.

That's why the DOS issue memos and updates their policy manual (FAM). This is what provides clarity to the COs so that they aren't interpreting things one way here and another way there. It's not perfect, but clear questions of legal fact (is a K-1 covered by PP xxxxx?) are typically resolved this way.

To date, the DOS has not issued any public memos to provide this clarity. They have also not updated (and published) the FAM to address the issue.

The discussion of IV vs NIV for a K-1 was clarified for other EOs in the FAM. See https://fam.state.gov/FAM/09FAM/09FAM030214.html

Quote

K Visas:  K visas are nonimmigrant visas and therefore are treated as such for PP 9645 purposes and not subject to PP 9983.  Therefore, if a K visa applicant is subject to restrictions under PP 9645 as a nonimmigrant applicant, he/she must either qualify for an exception or waiver before a visa may be issued.

The EOs referenced there are summarized here: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/presidential-proclamation9645.html

Edited June 23, 2020 by geowrian

[Ah96 17]

https://bit.ly/3hWdzhk Just came across this on Twitter. A lawyer has put together an app that can help you understand if you come under the travel ban etc.. very straight forward ! Hopefully it can help someone. 

[Sarahbmalvin 49]

35 minutes ago, Ah96 said:

https://bit.ly/3hWdzhk Just came across this on Twitter. A lawyer has put together an app that can help you understand if you come under the travel ban etc.. very straight forward ! Hopefully it can help someone. 

Cool thanks! This specific lawyer has also directly answered tweets saying that k1 was not affected by either proclamation: https://mobile.twitter.com/MarkabawiSamer/status/1274742194776289281

 

So it seems for us k1-ers it’s really just a waiting game for the travel bans to be lifted and the embassies to continue routine processing. 

[HRQX 4,145]

56 minutes ago, Ah96 said:

https://bit.ly/3hWdzhk Just came across this on Twitter. A lawyer has put together an app that can help you understand if you come under the travel ban etc.. very straight forward !

Note the "Coronavirus restrictions" page is flawed in the way it portrays the US-Canada and US-Mexico land entry (and ferry terminals) restrictions. Those 2 restrictions don't mention a "14-day prior to US entry" period and they don't apply to air and sea (e.g. pleasure boats, cargo ships, etc.) entry. Also, those 2 restrictions are subject to the CBP Commissioner's interpretation and case-by-case exceptions. The resulting .docx file should link to the relevant texts for clarity:

• https://www.federalregister.gov/documents/2020/03/24/2020-06217/notification-of-temporary-travel-restrictions-applicable-to-land-ports-of-entry-and-ferries-service
• https://www.federalregister.gov/documents/2020/03/24/2020-06253/notification-of-temporary-travel-restrictions-applicable-to-land-ports-of-entry-and-ferries-service

Edited June 23, 2020 by HRQX

[goldhex 21]

A positive update on the US Embassy London website 

https://uk.usembassy.gov/information-for-nonimmigrant-visa-applicants-following-the-coronavirus-covid-19-outbreak/