Court protects FY 2020 Diversity Visa lottery winners from immigration ban; leaves work visa ban in place

8 Sep 20

UNITED STATES

A U.S. District Court issued a preliminary injunction Friday, ordering the State Department to “undertake good-faith efforts” to issue Diversity Visas to winners of the FY2020 DV lottery by Sept. 30. The court denied a request to enjoin the government from enforcing the immigrant visa ban and nonimmigrant employment-visa ban while the litigation proceeds.

Key points:

  • The court ordered the State Department to issue the Diversity Visas by midnight Sept. 30. This is when the fiscal year ends and the eligibility period for FY2020 lottery winners to receive a visa permanently expires.
  • About 43,000 Diversity Visas (of the annual 55,000 allotted) remain unissued. Under State Department COVID-19 guidance, the agency is not processing Diversity Visas at consulates that have not resumed routine processing and does not list Diversity Visa applicants as eligible for an exemption at consulates where routine processing has resumed.
  • The court enjoined the agency from refusing to process Diversity Visa applicants as “emergency” or “mission critical” exemptions under the guidance.
  • The court declined to block the government from enforcing the immigrant visa and employment based nonimmigrant visa bans at this stage of the litigation.

Background: The State Department suspended routine visa operations in March because of the COVID-19 pandemic. On April 22, President Trump issued a two-month entry ban (Proclamation 10014) on most immigrants who did not already have a valid immigrant visa. On June 22, he extended the ban until Dec. 31 as part of Proclamation 11052, which placed new restrictions on multiple nonimmigrant work visa categories.

The annual Diversity Visa lottery selects 55,000 individuals from countries with historically low immigration to the U.S. to apply for permanent residence (green cards). Under regulations, Diversity Visas must be issued by the end of the applicable fiscal year or eligibility expires permanently. The DV-2020 registration period took place from Oct. 3, 2018 to Nov. 6, 2018, and results were available May 7, 2019. The court ordered the State Department to provide a status update on Sept. 25 of its progress in complying with its order, including how many Diversity Visas it has issued.

BAL Analysis: Because the court did not enjoin the visa ban, it remains in place at this time. Individuals who receive a diversity visa before the end of the fiscal year will still be barred from entering the U.S. due to the ban, but will be eligible to enter while the visa is eligible (it has a six month eligibility) and may enter if the ban expires while the visa is valid. BAL is closely following the multiple lawsuits challenging the immigration restrictions, and will report additional information as it becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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