On August 21, 2026, the U.S. District Court for the Southern District of New York struck down a U.S. Department of State policy that suspended immigrant visa issuance to nationals of 75 countries deemed by the government to present a heightened risk of becoming a public charge. The Court held that the policy violated the Immigration and Nationality Act (INA) and exceeded the Secretary of State’s statutory authority. The Court vacated the policy and set aside visa denials that were based solely on the policy.
Background
In January 2026, the Department of State announced that immigrant visas would no longer be issued to nationals of 75 designated countries because the agency believed immigrants from those countries posed a heightened risk of utilizing public benefits in the United States. A related Department of State cable instructed consular officers worldwide to refuse immigrant visa applications to nationals of the designated countries, regardless of whether an individualized review demonstrated that the applicant was unlikely to become a public charge. As a result, immigrant visa issuance was effectively suspended for nationals of 75 countries.
The policy affected both family-based and employment-based immigrant visa applicants processing their immigrant visas at U.S. consulates abroad. The policy did not impact individuals who are applying for non-immigrant visas (such as an H-1B, L-1, etc.) at U.S. consulates.
The Court’s ruling
The Court concluded that the policy conflicted with multiple provisions of the INA and an implementing regulation.
The Court expressly rejected the plaintiffs’ argument that the policy violated the INA’s public charge provision. The Court found that the directive preserved the individualized public charge assessment required by Immigration and Nationality Act (INA) § 212(a)(4). Consular officers still had to determine whether each applicant was likely to become a public charge under the statutory framework. If an officer found no public charge ground or other ground of ineligibility, however, State’s directive required refusal under INA § 221(g) solely because the applicant was a national of one of the 75 designated countries.
The Court held that this nationality-based command violated INA § 202(a)(1)(A), which prohibits discrimination based on nationality in the issuance of immigrant visas. It also violated INA § 221(g) and 22 C.F.R. § 40.6 because it required consular officers to refuse visas to otherwise eligible applicants without a ground for refusal authorized by law or regulation.
The Court further held that the Secretary of State exceeded the authority granted by INA § 104(a). Congress assigned consular officers the authority to grant or refuse visas and expressly excluded that function from the Secretary’s general authority to administer and enforce the immigration laws. By directing consular officers to refuse visas to a defined class of otherwise eligible applicants, the Secretary predetermined decisions that the INA entrusted to those officers.
The Court therefore held that the policy was contrary to law and in excess of statutory authority under the Administrative Procedure Act. It vacated the policy, set aside immigrant visa refusals based solely on the policy, and remanded those applications for further adjudication. The order did not disturb refusals based on an independent ground of ineligibility, even when the refusal also cited the challenged policy.
Impact on employment-based immigrant visa applicants
By vacating the policy, the Court restored adjudication under the statutory framework. Consular officers may assess each applicant under the grounds of eligibility and inadmissibility established by law, but they may not refuse an immigrant visa solely because the applicant is a national of one of the 75 countries covered by the vacated policy.
The Court also set aside immigrant visa refusals based solely on the policy and remanded those matters for further proceedings. This relief may reopen a path for employment-based applicants whose cases were refused under the directive without another ground of ineligibility. It does not guarantee visa issuance because consular officers retain authority to determine whether an applicant qualifies and whether any lawful ground of refusal applies.
We will continue to monitor developments, including any appeal and any Department of State guidance concerning implementation of the Court’s order.
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Angelo Paparelli
Partner, Vialto Law (US) LLP
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