Manhattan federal judge strikes down Trump admin policy that banned issuing visas to people from 75 countries

U.S. District Judge Jeanette Vargas declared Friday that the U.S. Department of State overstepped its authority and acted “contrary to law” when it announced it would suspend issuing visas to people from 75 countries this past January on the unfounded determination that immigrants from those countries pose a high risk of becoming a “public charge,” or are highly likely to use welfare. 

The State Department was not permitted to make that decision, Vargas said, because it amounted to nationality-based discrimination, which a federal law called the Immigration and Nationality Act (INA) prohibits when issuing visas.

Moreover, all visa applications must be decided on an individual basis, the judge ruled — so making a blanket determination for thousands of people runs afoul of federal policy. 

“In many ways, this is not a challenging case,” Vargas, a Biden appointee, wrote. “Congress enacted comprehensive procedures related to the issuance or refusal of immigrant visas … Consular officers are required to conduct an individualized assessment of applicants and to refuse visas only to those whom the consular officer finds ineligible. The [Trump administration] nonetheless directs consular officers to refuse eligible applicants … [and] categorically bans nationals of 75 countries from receiving immigrant visas, even when otherwise eligible, based solely on their nationality.”

“The INA prohibits discrimination on the basis of nationality in the issuance of immigrant visas,” Vargas continued. “This policy is thus patently unlawful and must be vacated.” 

The Department of Justice did not respond to a request for comment on the decision. 

Vargas’s ruling comes after a group of immigrants’ rights organizations, including the Catholic Legal Immigration Network and Legal Aid Society, brought a lawsuit challenging the policy. Legal Aid attorney Hasan Shafiqullah said that, beyond the policy being unlawful, it also did not make much sense. 

Many of the people applying for visas were coming to the United States with jobs lined up or to join family already living here who could support them, meaning it would be unlikely for those people to end up on welfare at all.

“It just didn’t even make sense,” Shafiqullah said of the policy. “We have folks who … were already granted national interest waivers, so that the minute they come here, they’re going to be stepping into a job where it’s in the national interest that they come here and work. These are going to be high-paying jobs for highly skilled workers. These are not folks who are going to come here and be on welfare.”

“To say, ‘We’re not going to use a case-by-case evaluation. We’re just going to say anybody from these countries is rejected because you’re all going to be on welfare’ is just irrational, and that makes the policy unlawful,” the attorney added. Immigration and consulate officers are supposed to assess a person in their entirety – considering their age, health, family status, education, skills, assets, resources and financial status when coming to an individualized conclusion on whether or not they’d be likely to become a public charge.

What should immigrants who were blocked by the ban do now, and what should those who were already partially through the application process when it went into effect expect? Shafiqullah said people should expect the process to proceed forward as it would have before.

“Anyone whose application was stalled or refused due to this policy should have their case reconsidered,” Shafiqullah said. “And, assuming they’re otherwise eligible, they should be approved now.”

The immediate next steps will depend on how far people got in the process before the rule change went into effect. If they had already been interviewed at their consulate, and everything would have been approved if this change hadn’t occurred, then it should be a matter of the officer just reviewing their file, possibly requesting necessary updates and issuing approval.  

If an individual did not have an interview, then their consular officials should send out an interview notice and request the person come in for one now, Shafiquallah said. 

Both Trump administrations have consistently attempted to use unfounded allegations that people will become public charges via welfare use as reasons to ban immigrants from the country, Shafiquallah said.

The Legal Aid Society pushed back on similar visa bans during Trump’s first term, and this summer the president floated a proposal to make immigrants pay $100,000 to get a green card to prove they wouldn’t become a public charge, something lawyers told amNewYork was likely illegal. 

“The more you look at the variety of reasons, you realize it’s all pretextual. It’s really just to stop immigration across the board,” Shafiquallah said. “That’s really what they’re trying to do, both pushing people out of the country through deportation if they’re here, and trying to keep them out in the first instance if they’re not here. It’s part of a nationalist agenda to stop immigration.”