Introduction
On August 4, 2017 a Federal lawsuit was filed by the American Civil Liberties Union, the American-Arab Anti-Discrimination Committee and the National Immigration Law Center against the U.S Secretary of State.
The lawsuit, comprising a petition for mandamus and complaint for injunctive and declaratory relief, sought to challenge the U.S State Department’s refusal to process immigrant visa applications filed by Diversity Visa Lottery winners from countries affected by President Trump’s Executive Order on immigration (the “U.S Travel Ban”).
The Diversity Visa Lottery
The U.S Diversity Visa Lottery is a program through which 50,000 U.S immigrant visas are made available annually, by way of a lottery, to citizens of countries with historically low rates of immigration to the U.S. The program is immensely popular; on average, approximately 16 million people every year enter the Diversity Visa Lottery.
Under the terms of the Diversity Visa Lottery program, U.S Consulates cannot issue visas to Diversity Visa Lottery winners after September 30 of the fiscal year to which the program relates. If a Diversity Visa Lottery winner’s visa is not issued by September 30, they lose their entitlement to an immigrant visa allowing them to emigrate to the U.S.
The U.S Travel Ban
On March 6, 2017 President Trump signed Executive Order 13780, entitled Protecting the Nation from Foreign Terrorist Entry into the United States. The Executive Order prohibited citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen without existing U.S visas, lawful permanent resident status, U.S citizenship or dual nationality from entering the US for a period of 90 days, pending the introduction of new “extreme vetting” procedures. As readers will recall, the legality and constitutionality of the Executive Order is currently subject to rigorous legal challenge.
On June 26, 2017, the U.S Supreme Court discharged the interim injunction preventing enforcement of the Executive Order in part, pending a full trial of the legality and constitutionality of the Order on October 10, 2017. As a result, nationals of Iran, Syrian, Sudan, Libya, Yemen and Somalia who lack a “bona fide relationship with any person or entity in the U.S” and do not fall within any other exception to the Executive Order are unable to obtain entry to the U.S.
The Lawsuit
The lawsuit was filed on behalf of Iranian and Yemeni citizens, who won the DV-2017 Diversity Visa Lottery. The Plaintiffs allege that the Federal Government has acted in breach of Federal law, by refusing to process the Plaintiffs’ immigrant visa applications, due to the U.S travel ban.
The lawsuit contends that the U.S State Department is under a statutory obligation to issue immigrant visas to Diversity Visa Lottery winners who meet the criteria for visa issuance. While Executive Order 13780 signed by President Trump placed restrictions on entry to the U.S for nationals of the six named countries, it did not expressly prohibit visa issuance. Visa issuance and entry to the U.S are two entirely distinct issues. Accordingly, it is alleged that the U.S State Department is in breach of its statutory obligation to issue immigrant visas to Diversity Visa Lottery winners who are statutorily eligible. The Plaintiffs seek a writ of mandamus, compelling the U.S State Department to process the U.S Diversity Visa Lottery winners’ applications.
There are two main issues faced by DV-2017 lottery winners from countries affected by the “travel ban”, who do not qualify for entry to the U.S under an exception to the Executive Order.
First, at the time of writing, the travel ban is scheduled to end on September 24, 2017. After September 24, 2017, one would expect the U.S State Department to consider successful lottery winners to be eligible for visa issuance, in any event. However, individuals in this position will have to hope U.S Consulates successfully issue their visa within the six day window available. If a successful Diversity Visa Lottery winner’s visa is not issued within this limited window of opportunity, they will cease to be eligible for a U.S immigrant visa.
Second, 84,000 Diversity Visa Lottery applicants were selected in DV-2017. Only 50,000 immigrant visas are available to Diversity Visa Lottery winners annually, so the delay in processing the applications of nationals of countries affected by the travel ban may cost them the opportunity to obtain an immigrant visa, if the Diversity Visa cap is reached before their applications are processed.
During a hearing on August 21, 2017 U.S. District Court Judge Tanya Chutkan expressed concern that the U.S State Department was “running out the clock” in respect of the Plaintiffs.
In response to the lawsuit, the attorney for the Secretary of State contended that the Court should not grant relief to the Plaintiffs, on the basis that the U.S Supreme Court had already undertaken the balancing exercise sought of the instant Court. The attorney added that it was possible the Diversity Visa Lottery winners would receive their visas shortly after expiration of the travel ban.
The opinion of U.S. District Court Judge Tanya Chutkan is expected to be published shortly. We will endeavor to provide updates.
Davies Legal
At Davies Legal, we offer advice and representation in connection with all areas of U.S business, employment and family immigration. We provide the highest standards of client care, at a competitive fixed fee. Call now for a complimentary assessment of your circumstances by a licensed U.S immigration attorney.
NB: This article is provided for information purposes only and should not be construed as advice. If you are unsure of your eligibility to apply for a U.S visa, your eligibility to enter the U.S or any other issue regarding the U.S travel ban or the Diversity Visa Lottery, you should discuss the unique circumstances of your case with a licensed U.S immigration attorney.
