Judge Strikes Down Trump Administration’s Diversity Visa Ban

Written by: Ashik Jahan, Esq.

Each year, the State Department uses a lottery system to select visa recipients from a broad array of countries that are underrepresented in the United States. In April, President Trump banned diversity visa (DV) recipients from entering the country.  However, a federal judge has ordered the Trump administration to resume issuing diversity visas on September 5.

As a background, the Diversity Visa Program was enacted by Congress in 1990.  The law allows up to 55,000 people to be selected, but that cap was lowered to 50,000 in 2017. Only citizens of countries with fewer than 50,000 nationals admitted to the United States in the past five years are eligible to apply. Applicants must have a high-school education or at least two years of recent qualifying work experience.  Lottery winners are selected out of millions of applicants and are eligible to seek lawful permanent status after undergoing intense screening to be approved.  If the applicant’s visa is not issued by the end of the fiscal year (September 30th), they lose the opportunity to immigrate to the United States.

When the administration announced the initial immigration ban, only 12,000 diversity visas had been issued by the State Department for fiscal year 2020, leaving nearly 40,000 people in limbo. The new court order gives some hope to those waiting to obtain a diversity visa, but the judge did not extend the end-of-September deadline when eligibility for a diversity visa will expire.  Instead, he ordered the State Department to “undertake good-faith efforts to adjudicate visas” by the deadline, which his fast approaching.  In response, the Department of State provided a Diversity Visa update, stating that they are seeking to prioritize diversity visa applicants.  Yet, this prioritization appears to be limited as the update further states:  “Although DV-2020 applicants may be issued an immigrant visa under this court order, Presidential Proclamation 10014, which suspends entry into the United States of certain immigrants (including Diversity Visa applicants), remains in effect until December 31, 2020, and can be extended by the President.  Therefore, unless a DV recipient also meets an exception to the Proclamation, that DV visa holder will be unable to travel to the United States on the issued visa while the Proclamation is in effect. ”

President Trump’s initial travel ban denied immigrants who sought to come to the U.S. permanently through their close family ties or the diversity category in April.  In June, he extended the ban through the end of 2020 and expanded it to include several nonimmigrant categories, including H-1B workers and their H-4 dependents, as well as L-1 intracompany transfers and J-1 exchange visitors.  See:  https://www.chicagoreporter.com/trumps-covid-19-visa-bans-may-alter-the-face-of-american-immigration-beyond-the-pandemic/s.   Digging further, it is important to note that President Trump has called for the end of the visa lottery since 2017, when he said that the program was “picking the worst of the worst.”  The administration has used public-health and the concern of job losses as the primary basis to push through their restrictive anti-immigration agenda since the COVID-19 pandemic began.  Alex Nowrasteh, the director of immigration studies at the Cato Institute, has stated that “peer‐reviewed evidence is clear that travel bans are ineffective at preventing the spread of diseases like COVID-19 after it’s already been seeded.”  Moreover, Mr. Nowrasteh adds that “closing immigration will…increase the economic burden faced by Americans during these hard times.”  Margaret Peters, an associate professor at the University of California at Los Angeles, adds that immigration restrictions do not protect American jobs and may actually lead to job losses.