AILA Quicktake #294: Court Orders DOS to Reserve 9,095 Additional Diversity Visas

On September 30th, the U.S. District Court for the District of Columbia ordered the State Department to reserve 9,095 additional diversity visas for DV-2020 selectees. AILA Past President and current member of AILA’s Litigation Task Force Charles Kuck explains the significance of this almost unprecedented decision.

Video Transcript

The decision in the Diversity Lottery litigation otherwise known as Gomez/Aker, is really quite important for two specific reasons. One, for the first time in the modern era, a federal court judge has extended the immigrant visas usage beyond the end of the fiscal year. And, it reserved numbers, and a large number, over nine thousand, for use in the next Fiscal Year, for the previous year's diversity visa winners. Second thing it did, vitally important for every type of visa applicant, is that it told the Department of State that the Travel Ban under 212(f) doesn't mean a visa ban. they still have to issue the visas to people even if those visas currently cannot be used to enter the U.S. That's important because people from other categories, other than DV, are being denied visas because of this ban.

Department of State hasn't woken up to that fact yet but a little litigation will show them what the judge really meant. But those are two very very important outcomes of this litigation.

The most important impact for Diversity Visa applicants is that actually, those that won didn't finish visa processing for medical exam issues or even interview issues, because they couldn’t get to a consulate, will have that opportunity to get their visas. And those who had been had interviews scheduled in the spring, that were cancelled, will be able to reschedule those interviews up until the time that the Department of State uses nine thousand more visas.

Now, we remain hopeful that a change in administration will enable us to go back and recapture the rest of the diversity visas, but we are excited that we saved half of the Diversity Visa applicants for Fiscal Year 2020.

As of right now, as far as we can tell, the Department of State is still maintaining their position that they cannot issue visas to individuals under the bans. That is directly contrary to the judge’s decision including for DV-2021 recipients. So, no interview, as far as we can tell, has been scheduled for DV-2021.

Within the DV-2020 litigation, the Gomez/Aker litigation, we presume the government will file the motion to dismiss, we'll file motion to summery in judgment and the judge will issue a final decision. I believe we will win that case and the nine thousand and change visas will then become available to DV-2020 applicants. Further from that, we have already filed, as private lawyers, litigation with our group of Greg Siskind and Jeff Joseph, litigation on K-1s.

We are about to file litigation on O-1s, we are looking to file an additional litigation in other areas of individuals who haven't been treated fairly by the Department of State. And of course, we are keeping an eye on the DV-2021 lottery to make sure the Department of State is following the law as laid down by the Judge Mehta.

It's really important to understand that this litigation was carried out because of AILA, because AILA hired Jesse Bless, because AILA partnered with law firms. AILA and our dues, and our leadership makes this type of litigation possible and enables us as members to fight on behalf of our clients and non-clients to fix the law and make positive changes.

AILA is responsible for this and I'm proud to be an AILA member.

Cite as AILA Doc. No. 20100203.