u/Legitimate-Pizza7351

This whole situation looks contradictory at first, but the more I think about the timing, the more I feel the appeal may actually be a positive sign.

Why send the cable now?

On one side, DOS reportedly sent a cable to all embassies and consulates telling them that the 75 country pause is no longer in effect, that applicants cannot be refused under that policy, and that posts need to identify cases that were refused only because of the pause and comply with the court order.

On the other side, DOJ has now appealed the same ruling.

Legally, both things can happen at the same time. The government still has to follow the district court’s judgment unless it gets a stay, while also trying to reverse or narrow that judgment in the higher court.

So why does the timing matter?

CLINIC’s response was very strong. The government had already admitted that more than 43,000 cases are affected, but still showed very little measurable progress. No clear timeline, no meaningful numbers on how many people were actually contacted or reconsidered, and no real explanation for how long this would take.

Then Sept. 11 was already coming, when both sides had to submit another report about how the remaining issues should proceed.

So from my point of view, the government was running out of space to hide behind vague language like “rolling basis,” “manual review,” and “guidance is being developed.”

Then suddenly the cable goes out to the posts.

And almost at the same time, they file the appeal.

Could the appeal actually be a defensive move?

That is how I am starting to see it.

Not because they have given up. Obviously they still have legal options. But their delaying strategy at the district court level was becoming harder to defend.

If they genuinely believed they could keep these cases frozen indefinitely, there would have been much less reason to send a worldwide cable telling embassies how to comply.

So the appeal may be less about confidence and more about preserving another legal route while the district court keeps tightening the pressure.

Were they simply trying to buy time?

This is my main theory.

Time to finish the new public charge framework.

Time to train consular officers.

Time to reach Sept. 18, when the newer public charge rule becomes effective.

And possibly even time to reach October, when the newer affidavit of support forms and related procedures become more fully embedded into processing.

I am not saying there is proof that they intentionally held all 43,000 cases just to wait for October. That part is still speculation.

But strategically, it would make sense that they wanted old remanded cases reconsidered under the newest possible framework rather than under the older system.

What does this mean for EB2 NIW cases?

This is where I think EB2 NIW applicants may be in a relatively better position.

Most self petitioned NIW applicants do not need an affidavit of support. We are not depending on a family petitioner or sponsor. We already proved our education, skills, professional background, and national interest value.

If they want to ask for updated financial information, proof of funds, tax records, current employment, or a basic settlement plan for the first few months, that is possible.

But that is still very different from family based cases where sponsorship and financial dependency are much more central to the process.

So if DOS wants to start clearing some cases while also showing the court that it is complying, straightforward already interviewed NIW pause only cases could actually be among the easiest ones to move.

Why I do not see the appeal as purely negative

To me, the bigger picture now looks like this:

The old pause is gone.

The embassies now have instructions.

The government’s room to delay at the district court level is shrinking.

So they are preserving their remaining legal options through appeal while they are being pushed toward actual implementation.

What should we watch next?

The real questions now are:

What exactly did the cable tell the posts?

How much of the new public charge framework will they try to apply to already interviewed cases?

Will we finally start seeing passport requests, document requests, and visa issuances?

That is what matters now.

The cable says move forward.

The appeal says they are still fighting.

And both can be true at the same time.

DOJ filed a Notice of Appeal today, September 10, challenging Judge Vargas’s August 24 final judgment in CLINIC v. Rubio. The government is taking the case to the Second Circuit. The notice itself is very short and does not identify the specific arguments DOJ intends to raise.

The most important point: an appeal is not a stay.

Nothing in today’s filing asks Vargas or the Second Circuit to suspend the judgment. So, at least for now, the 75-country policy remains vacated, the pause-only refusals remain vacated/remanded, and DOS is still required to operate under Vargas’s judgment.

I believe DOJ/DOS may currently be pursuing two tracks simultaneously: comply with the judgment now while challenging its legality on appeal. That is entirely possible and would explain why implementation is moving forward despite today's appeal. It also explains why implementation may have been moving slowly.

What matters next is whether DOJ files a motion for a stay pending appeal. That would be much more consequential. If a stay were requested and granted, depending on its scope, it could potentially interrupt implementation while the Second Circuit considers the case. There is no such stay right now.

The appeal also makes the ongoing public-charge dispute before Vargas more interesting. DOS is arguing that affected cases are being reconsidered individually, while CLINIC is challenging the possibility that previously interviewed pause-only applicants could now be subjected to a new public-charge review. Vargas already expressed skepticism about sending these applicants back through a new adjudication process.

So I would watch three things closely now: whether DOJ seeks a stay, what the implementation cable actually tells embassies to do, and whether we start seeing passport requests/visa issuances in previously interviewed 221(g) cases.

The immediate next procedural step is for the appeal to be docketed in the Second Circuit. The parties will file the required appearance/docketing materials, the record will be assembled, and the court will set or approve a briefing schedule. The Second Circuit has specific civil-appeal docketing and briefing procedures under its local rules.

Then DOJ will eventually file its opening brief. That is the document that will finally tell us exactly what the government is challenging, whether it is Vargas’s statutory interpretation, nationwide APA vacatur, the scope of the remand, or some combination of those issues. CLINIC will respond, DOJ can reply, and eventually a three-judge Second Circuit panel will decide the appeal, potentially after oral argument.

But for applicants, the much more important short-term issue is whether DOJ seeks a stay pending appeal. The government ordinarily has to ask the district court first to stay the judgment; if Vargas denies it, DOJ can then ask the Second Circuit. Based on what has already unfolded, I believe getting a stay granted will be very difficult for the government, so they may not ask for one.

Regarding the timeline, a typical appeal is usually measured in months, not weeks. A rough ballpark is 6–12 months from notice of appeal to a panel decision, though it can be faster or slower depending on briefing extensions, oral argument, and whether the court expedites the case.