The diversity visa program awards immigrant visas to nationals of countries that historically have sent low numbers of immigrants to the United States. Each year, a very small fraction of applicants from these countries are randomly selected to receive immigrant visas if they otherwise qualify for immigration.
Federal law requires that consular officials issue those visas if the selected winners are eligible and not otherwise barred and if visas remain available. However, the visas must be issued by September 30, or the winners lose their slots.
In March 2017, President Trump banned nationals of Iran, Syria, Sudan, Yemen, Somalia, and Libya from entering the United States, and litigation challenging the constitutionality of the ban (including the ACLU’s challenge) is ongoing. Although entry in the United States and the issuance of visas (which confers eligibility for future entry) are distinct, the State Department has adopted a policy directing consular officials to deny diversity visas to nationals from the countries in President Trump’s travel ban. The entry prohibition in the Executive Order expires of its own force just days before the September 30 deadline for lottery winners to receive their immigrant visas. But at that point, eligible winners will either already have been refused their visas under the State Department’s policy, or their visas will likely be effectively denied, as there is little chance the government would process thousands of applications in the few days that would remain before the deadline. Accordingly, lottery winners will effectively lose their rare chance at a U.S. visa under the discriminatory State Department policy.
In August 2017, the ACLU-DC, National ACLU, American-Arab Anti-Discrimination Committee, National Immigration Law Center, and the law firm Jenner & Block filed class-action lawsuit on behalf of diversity lottery winners and their family members seeking to enjoin the State Department’s unlawful refusal to process visa applications from nationals of Iran, Syria, Sudan, Yemen, Somalia, and Libya.
In March 2018, the court dismissed the case as moot on the ground that the version of the administration’s travel ban that purportedly justified the State Department’s refusal to process the visa applications had been withdrawn and superseded by a new version. However, the plaintiffs’ visa applications have still not been processed, so we appealed the dismissal in May 2018. Our appeal will proceed to normal briefing and argument.