Diversity Visa Lottery Lawsuit
Several related diversity visa lawsuits (Filazapovich et al. v Department of State et al.; Goh et al. v U.S. Department of State et al.; Goodluck et al. v Biden et al., among these) were recently filed on behalf of more than 24,000 diversity visa lottery winners from over 100 countries to challenge the U.S. State Department decision that made the Diversity Visa applicants the lowest-tier priority for processing. The plaintiffs also sought an order to have their diversity visa applications fully adjudicated (and to have the corresponding visas issued) before the statutory deadline on September 30, 2021, or to preserve the visa numbers in the event that the diversity visas could not be adjudicated before the statutory deadline.
On Thursday, September 9th, 2021, DC Federal Judge Amit Mehta granted the Goh et al. v Biden plaintiffs summary judgment on the assertion that the No-visa policy (that is, the State Department’s legal position and policy that Proclamation 10014’s – which was revoked in early 2021 – restriction on entry, by operation of law, rendered diversity visa lottery winners ineligible to receive a diversity visa) unreasonably delayed their visa application. At the same time, he denied the Filazapovich et al. plaintiffs’ motion for a preliminary injunction. Finally, he granted the Goodluck et al. plaintiff’s motion for a preliminary injunction, reasoning that the plaintiffs in question would probably succeed on their claim that the no-visa policy is contrary to law, that the defendants unreasonably delayed adjudication of the DV-2021 applications and that their visa prioritization policy is “arbitrary and capricious as applied to diversity visa applicants”.
Accordingly, Judge Mehta ordered that the defendants, the U.S State Department and Biden, undertake good-faith efforts to expeditiously process and adjudicate DV-2021 applications and derivative beneficiary applications by September 30, 2021. Additionally, he ordered that the November 2020 prioritization policy be preliminarily enjoined as to DV-2021 selectees and their derivative beneficiaries. As a result, the Department of State cannot rely on the November 2020 prioritization policy to “foreclose or prohibit embassy personnel, consular officers, or any administrative processing center (such as the KCC) from processing, reviewing, or adjudicating a 2021 diversity visa or derivative beneficiary application.”
To ensure adequate follow up, Judge Mehta also ordered that the parties file a Joint Status Report on September 23, 2021, indicating a) by month since February 2021 with respect to DV-2021 applicants and derivative beneficiaries: (i) the number of interviews scheduled; (ii) the number of interviews conducted; and (iii) the number of visas issued; and (b) the number of interviews scheduled between September 23, 2021, and September 30, 2021. Similarly, Judge Mehta ordered that the parties appear via videoconference for a status hearing at 11:00 a.m. on September 27, 2021.
Though this order is no doubt a positive development for DV-2021 hopefuls, it remains to be seen whether, in light of operational constraints due to COVID-19, there will be a significant change in the pace and volume of diversity visas that will be processed before the rapidly approaching fiscal year end date of September 30, 2021. Thankfully, the State Department has advised DV-2021 hopefuls that if a consular section has the capacity to schedule an applicant’s DV-2021 case, they will receive a notification by email to check the Entrant Status Check site, providing clarity for applicants. Stay tune for more information about the visa lottery.