Let’s say you are waiting for a visa to be approved but the visa is in the F4 category. What do you do? What do you do in the wake of President Trump’s proclamation? Can you file a mandamus lawsuit? What are your options if you’re stuck waiting for this visa? Or maybe you have filed such a petition. This is the question I’m going to explore today.
How I can help you
In case you don’t know me, my name is Josh Goldstein. I’m an immigration lawyer in Los Angeles. I help people with all sorts of immigration issues. I help people get work permits, green cards, and citizenships. And I have a particular interest in helping people with delayed immigration cases.
In 2020, most of the delayed immigration cases are stuck at the consulate. These are people who deserve to be approved for a visa but they’re given the lame excuse of administrative processing. I help people get their visas out of administrative processing by filing mandamus lawsuits.
Here’s the question: “I’ve been stuck in administrative processing since 2018 for two years. My visa is a class F4 case that has been refused under administrative processing since January 21st, 2018. I need your help. What can you do to move forward at this time?” There’s a lot to unpack here. But I’m getting this question from a lot of people so let’s dig in.
First of all, if your case has been in administrative processing for two years, then that is an unreasonable delay. In general, you should be able to challenge that with a mandamus lawsuit. But in this case, the visa is an F4 class visa.
What is an F4 class visa
First of all, let’s define what it means to be in the F4 class. This is from the most recent bulletin. It has a nice definition of the family-sponsored preference cases. So F4 are brothers and sisters of US citizens.
That means that the petitioner is a US citizen and he or she filed a petition based on a sibling relationship. It takes a very, very long time to get such cases approved. But nevertheless, that’s what you have to do for F4.
Similar visas include the following:
- F3, married sons and daughters of US citizens.
- F2B, unmarried sons and daughters 21 years or older of permanent residents.
- F2A, spouses and children of permanent residents. Second preference are spouses and children and unmarried sons and daughters of permanent residents.
- F1, unmarried sons and daughters of US citizens. I think this means unmarried sons and daughters who are over the age of 21.
So those are the family-sponsored preference petitions. The person who asked me the question is in the F4 category. So what can we do? Let’s go back to the presidential proclamation. This is the one that was issued on April 22nd.
Who is blocked by the presidential proclamation?
First of all, Section 2 (i) says, “Anyone outside the United States on the effective date of this proclamation.” So you had to be outside the United States on April 22nd, 2020.
Second, “You do not have an immigrant visa that’s valid on the effective date.” So that would be people in administrative processing who are outside the United States.
Who does it NOT apply to?
Now, there is a section here that says, “The suspension and limitation shall not apply to…” It doesn’t apply to any alien who is the spouse of a US citizen and any alien who is under 21 years old and is the child of a US citizen. And there are some other carved-out exceptions that it goes on to specify.
But the only categories that are available are the spouse of a US citizen or the child of a US citizen. Those are the two that are carved out. So under this proclamation, sibling petitions, i.e., F4 category cases, are blocked.
Now, this proclamation was issued on April 22nd and it lasted for 60 days. Then we go to the other proclamation on June 22nd. This proclamation extended the prior proclamation until the end of the year, until December 31st of 2020.
Let’s go back to the question
“I’ve been stuck in administrative processing for two years. My visa class is F4 and it’s been refused under administrative processing.” Refused, by the way, does not mean denied. Refused just means temporarily on hold.
That’s the terminology that’s used for these sorts of cases. But it says, “What can you do to move forward at this time?” Well, first of all, we now know that the F4 category is for siblings of US citizens.
We now know that, on April 22nd, President Trump issued a proclamation that would have blocked the issuance of visas in the F4 category for 60 days. And we know that, on June 22nd, 2020, Trump released another proclamation that extended that ban till the end of December 31st, 2020, till the end of the year.
What can you do now?
The presidential proclamation blocks the issuance of this visa. I guess one possible question is whether you could file a mandamus lawsuit to challenge the executive order. You could say, “Look, this is not fair. Congress set up the immigration laws to allow US citizens to petition for certain family members. And the presidential order can’t just block that.”
There’s a class action suit
Well, you could do that but there’s already a class action lawsuit that’s been filed. It was filed in May. And they’re seeking a preliminary injunction. Since it’s a class action lawsuit, this means that the beneficiaries of this lawsuit would not just be plaintiffs in that case but they would be anyone. So the entire proclamation could be modified or struck down by a court.
The proclamation ends on December 31st
The second thing to know is that the proclamation ends on December 31st. And Trump might choose not to extend it. Obviously, he never misses an opportunity to treat immigrants poorly. So it wouldn’t be a good prediction to think that he’s going to help immigrants. But nevertheless, that’s a possibility.
The upcoming election
Another change could happen through the presidential election. Trump is up for reelection in November. He could lose the election. We could have President Biden inaugurated in January of 2021. And President Biden could undo these proclamations with the stroke of a pen. So that’s another solution.
Yet another solution (for some)
There’s one more solution that I want to mention. This does not apply in the F4 category. But if you petition for your wife or your husband or your children and you’re a permanent resident, then you can fix that, if you are the petitioner, by naturalizing. So you could then possibly move out of this entire system by becoming a US citizen. That’s just one suggestion.
But right now, I think you’re stuck with the ban. The only way to get this resolved is through a victory in court, a victory at the ballot box in November and a change in the administration in January. Or if you’re a spouse or a child of a US citizen, if that’s the nature of the petition, you can get it resolved through naturalization. That’s my advice for this category and for these people.
It’s incredibly unfair
My heart goes out to you because I think it’s incredibly unfair. Trump constantly downplays the seriousness of the coronavirus in the United States. He doesn’t wear a mask. He doesn’t practice social distancing. He has a big rally. He does all these things.
But on the same token, he uses the coronavirus as an excuse to stop issuing visas. I think it’s deplorable. I think it’s horrible. My heart goes out to you if you’re in this situation.
If you have questions or need help, let me know. Keep fighting for your immigration dreams. We can get these cases approved one way or another.
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