Several civil rights groups and law firms have filed suit against the U.S. Department of State and its consulates. They claim that the agency is unlawfully denying or delaying the processing of visas for winners of the U.S. Diversity Visa Program who live in the six countries targeted by President Trump's travel ban.
Although the travel ban is currently under consideration by the U.S. Supreme Court, the high court has already determined that it can't be applied to people with bona fide relationships with people or entities in the United States. The rights groups have a strong case that winning a visa through the Diversity Visa Program lottery constitutes a bona fide relationship.
"A winning lottery spot is a rare and precious thing. If our clients do not receive their visas by September 30, they lose what may be their only chance at becoming Americans.
"By refusing to issue their visas during the ban, the State Department is violating the law and threatening to run out the clock," says the director of the ACLU's Immigrants' Rights Project.
The ACLU, the ACLU of the District of Columbia, the American-Arab Anti-Discrimination Committee, the National Immigration Law Center and Jenner & Block LLP, filed suit on behalf of Diversity Visa Program lottery winners from Iran and Yemen. President Trump's travel ban is targeted at Iran, Yemen, Syria, Libya, Somalia and Sudan.
The lawsuit points out that Trump's executive order does not specifically authorize consulates to deny or delay visas to anyone. Nor does it describe justifications that apply to diversity visa program winners.
Moreover, the applicable statutes and regulations require consulates to issue the visas, by the required deadline, as long as the winners are statutorily eligible, are not considered inadmissible under 8 U.S.C. §1182(a), and visas remain available for this fiscal year. Since all of three conditions have been met, by law the consulates must issue the visas.
What is the U.S. Diversity Visa Program?
The Diversity Visa Program is well-established within U.S. immigration law. Its purpose is to give a chance at a better life to people from countries that haven't traditionally been well represented in U.S. immigration.
Applicants must qualify for an immigrant visa under U.S. law, and the visas are awarded randomly. An immigrant visa allows the recipient to live as a lawful permanent resident for up to six months and to eventually adjust their status to that of a green card holder.
Those concerned that diversity visa program lottery winners might not be sufficiently vetted, you should know that they still have to have met all of the requirements for an immigrant visa and still must be inspected at their port of entry to the United states.
Over the past decade, according to the ACLU, about 16 million people have applied annually. Only 50,000 diversity visas are awarded each year.
What is at stake for the plaintiffs in this case?
Can you imagine how you would feel if you won the lottery you had been dreaming about all of your life -- and then what felt like a sneaky trick threatened to take it away?
"I sold everything I had to get the chance to travel to the USA," says one of the plaintiffs. "I have nothing and nowhere to go now. The executive order travel ban has destroyed my dreams."
According to the lawsuit, the State Department is not free to extend the travel ban to diversity visa lottery winners. By law, consulates are required to process the lottery winners' visas by Sept. 30. If they fail to do so, the State Department could be subject to contempt of court penalties and liability for economic damages. For the plaintiffs, the real damage would be the permanent loss of their only chance to immigrate to the U.S.
If you have a U.S. immigration law question, we invite you to contact an immigration lawyer.