Diversity Visa Winners Temporarily Shielded from Visa Ban

On September 4, 2020, a judge from the United States District Court for the District of Columbia issued a preliminary injunction in Gomez, et. al. v. Trump, et. al. that temporarily bars the Trump administration from halting the issuance of visas and entry of certain classes of foreign nationals, namely, applicants who won green cards in the Diversity Visa lottery. This decision came at an especially critical time for this year's eligible diversity visa applicants, given that the 2020 fiscal year will close on September 30, 2020.

Since 1990, Congress has reserved up to 55,000 diversity immigrant visas each year for individuals from countries with historically low levels of immigration into the United States. Once selected, applicants must apply for and receive their visas by the end of the fiscal year or their opportunity to immigrate to the United States by way of the Diversity Visa program is permanently gone.

In response to COVID-19, the U.S. Department of State temporarily suspended routine visa services at all U.S. Embassies and Consulates. Thereafter, President Donald Trump issued Proclamations 10014 and 10052, suspending the entry into the United States of most immigrants abroad who did not already have a valid immigrant visa or travel document as of the effective date of the proclamation through December 31, 2020. In the wake of these Proclamations, not only entry, but also but also the review and adjudication of visas for applicants who are covered by the Proclamations and not subject to any of their exceptions.

In response, a class action lawsuit was filed in the U.S. District Court for the District of Columbia, which consisted of, among other groups of individuals adversely impacted by the Proclamations, diversity visa lottery selectees. In the opinion, U.S. District Court Judge Amit P. Pehta held in favor of diversity visa lottery winners, declaring that the Department of State had "unreasonably delayed processing" of green cards as a result of the travel restrictions imposed by the Trump administration. While the defendants challenged the motion on the ground of the doctrine of consular nonreviewability, which holds that a consular official's decision to issue or withhold a visa is not subject to judicial review, the Court rejected this argument. The Court reasoned that the plaintiffs were not challenging affirmative visa determinations, but rather the refusal to review and adjudicate their pending visa applications. The decision highlighted a critical distinction between the President's right/power to suspend entry to the United States, including the entry of diversity visa selectees who are issued visas, and the Department of State's adoption of a "No-Visa Policy", whereby it refuses to adjudicate visa applications. This temporary win for 2020 diversity visa lottery selectees allows applicants to move forward in the immigrant visa process, obtain an adjudication on their earned visa petitions, and fulfill their life-long dreams of immigrating to the United States.