Who are we?
We are three groups of Diversity Visa advocate groups formed after President Trump’s Immigrant Ban halted the processing of Diversity Visas in 2020 and then continued on to 2021. In 2021 tiered prioritization guidance to embassies proved a further challenge for DV winners apart from Covid-19 related disruption.
Why are we doing this?
We are not lawyers and do not consider ourselves experts in this area. We are ordinary DV winners like you. We are completely independent and sharing our experience free of charge in good faith in order to help you assess your own situations carefully and make rational decisions. This guide should not be considered legal advice and ultimately all of you will have to make decisions for yourselves and be responsible for the consequences.
This is a reflection of the situation as of the time of writing on 10/01/2022.
I am a DV 2022 winner and should I join a lawsuit?
It’s this question posted to us on a daily basis that prompted this document. There is no straightforward answer to this question. In short this will be very much dependent on your circumstances and we hope to explore some of them in order to help you understand the situation and what things you should consider. We will try to explain in as simple a language as possible.
But please note being part of a lawsuit cannot guarantee you will get an interview or be granted a diversity visa. In most circumstances, payment of fees will be necessary whether you get a visa or not or even if you receive a visa due to circumstances that have nothing to do with the lawsuit (in case of a success fee).
How could being part of a lawsuit help me get processed?
Reflecting on arguments made in past lawsuits the following were the two main methods attempted by lawsuits filed in past.
Injunctive relief based on an illegal policy
This is where lawyers convince a Judge that a certain policy preventing DV interview scheduling is in fact illegal so should be suspended (an injunction issued) and the victims (participants of the lawsuit, also called plaintiffs) should be compensated, in the form of being granted a visa interview.
In the past lawyers have succeeded in obtaining injunctions against the following two policies (but not all cases were successful).
- Entry bans being used as visa bans
- Tier prioritisation
Both these policies are no longer relevant as they have officially ended so cannot easily be used as the basis of relief for DV 2022. There is an allegation that the Tier policy is still being applied even though officially removed, but this would need to be proved in a court of law, for which there seems to be a lack of evidence at the moment.
Unreasonable delay
This is where the lawyers try to convince a Judge that the government has unreasonably delayed your visa application.
Before 2020, provided you had submitted a DS260 (and provided the documents in the years when it was required) at least 2 months in advance of the month you become current in the visa bulletin, you would normally get scheduled for an interview in the month you become current subject to available visa slots (In very busy embassies this could be the following month). So this perhaps could be used as a benchmark to determine IF your case has been delayed (and your likelihood of success improves based on the amount of time that has passed from this date).
The next issue is whether the delay is unreasonable. This is where things get tricky. Up to now, we have observed that courts HAVE accepted that delays caused by issues beyond the control of the embassy or DOS such as Covid-19 related disruption, staff shortages, local government policy, and security situation in the country and diplomatic issues ARE reasonable. However, courts have also considered delays caused by illegal policies as unreasonable in previous lawsuits.
What happened with lawsuits in 2020 and 2021?
The best way to understand how being part of a lawsuit may help you is to understand what happened in past DV years affected by the disruption. There were many lawsuits and not all of them resulted in a positive outcome for participants, particularly in 2021. However, for the purposes of this document, we will focus on the lawsuits which resulted in a positive outcome.
DV2020 – Gomez consolidated class certified lawsuit: This lawsuit consolidated the Gomez lawsuit brought by the American Immigration Lawyers Association (AILA but litigated by the Justice Action Centre and Innovation law Lab with partner law firms working pro bono), Mohammed, Fonjong (and later Kennedy) lawsuits brought by Morrison Urena law firm and the Aker lawsuit brought by Kuck Baxter law firm.
In this lawsuit, the lawyers successfully obtained a preliminary injunction against the “No Visa Policy” which was where the government was using entry bans as the basis for not granting visa interviews for DV winners and ordered the immediate processing of DV 2020 all winners in September 2020 with priority given to named plaintiffs. The court then reserved 9095 additional visas as compensation for the illegal act on the part of the government.
The final decision confirmed the preliminary decision and ordered the issuance of the 9095 reserved visas but without priority granted to plaintiffs. No reserved visas have been issued yet and the government has appealed this decision.
DV2021 – Rai lawsuit brought by Morrison Urena challenging the government policy Covid-19 related entry bans used to halt visa processing in certain countries (sometimes referred to as the Schengen Visa Ban though many more countries were affected). Here the Judge ruled this policy was illegal and ordered the government to issue 966 visas after the fiscal year deadline available to all DV winners affected. There were no special privileges granted to named plaintiffs as the Judge found this would be inequitable (unfair).
DV 2021 – Goh lawsuit brought by IMMpact Litigation (an alliance of Kuck Baxter, Siskind Susser and Joseph Hall law firms) brought challenging the “No Visa Policy” and Tier prioritisation which was alleged to deny DV winners a fair chance at a visa interview. The lawsuit requested relief for all but with priority for named plaintiffs of the case.
The Judge found in favour of plaintiffs, issued an injunction and a final decision stopping the government from using the above policies for al DV winners and reserved 481 visas for plaintiffs to be issued to plaintiffs of the case (31% of 1550 plaintiffs).
The government has not yet issued these reserved visas and the decision has been appealed.
DV2021 – GoodLuck lawsuit brought by Morrison Urena brought challenging the “No Visa Policy” and Tier prioritisation which was alleged to deny DV winners a fair chance at a visa interview. Later the Jacob (later Rosales) case filed by the same law firm was consolidated with Good Luck.
A separate lawsuit called Filizapovich v DOS brought by Glazer and Glazer was consolidated with GoodLuck but failed to win a preliminary injunction, but this did not matter in practice as the Judge offered injunctive relief for all via the GoodLuck PI.
The Judge found in favour of plaintiffs issued a preliminary injunction stopping the government from using the above policies for all DV winners and reserved 6914 visas for plaintiffs to be issued to plaintiffs of the case (31 % of total plaintiffs). The consolidated cases are still continuing
Other notable cases such as Gjoci filed by Glazer and Glazer failed to achieve a positive decision as Judges found issues related to standing (the ability of plaintiffs to bring legal action before court), or no quantifiable harm to the plaintiffs before end of the fiscal year but still continuing. At least one individual mandamus case also succeeded but many failed.
In summary, in 2021 litigation resulted in a mixed picture with some courts siding with the plaintiffs but some siding with the government. The situation was not completely comparable with 2020. We believe the 2021 situation will be different and challenging for lawsuits compared to DV 2020 and 2021.
What is the current situation when it comes to DV 2022
Since Rena Bitter was appointed as Assistant Secretary of State for consular affairs we’ve seen some improvements in the department of state policy regarding consular operations. Most significantly:
- The tier prioritisation guidance has been withdrawn.
- The documentary qualification stage for diversity visas has been abolished which should free up KCC resources to work on scheduling.
- Most recently consular reassignment guidance has been published for Iraq and Afghanistan whose US embassies are no longer operational.
However, this does not mean the situation for DV 2022 is all positive. Right now the world is in the midst of another Covid-19 wave which has disrupted operations in places. There are also political, diplomatic, internal issues in places like Russia, Belorussia, Myanmar and Ethiopia. Further we believe embassies such as Abu Dhabi still have resources dedicated to processing Afghan refugees so may not be running at 100%.
There may be also local embassy policies that may affect processing but we currently do not have a clear idea of the impact on DV 2022 as we have only recently started to receive.
So what does this all mean for DV 2022 winners considering joining lawsuits?
The most important point to understand is that joining a lawsuit does not guarantee you will be processed for a diversity visa. The lawyers will try their best but outcomes cannot be guaranteed.
In operational embassies, many people will naturally be scheduled and processed without extra assistance.
In 2021 lawsuits did not allow plaintiffs to leapfrog non-plaintiffs before the end of the fiscal year though plaintiffs were eligible for reserved visas (except for the Rai case where the reservation was extended to all eligible DV winners). There also seemed to be no advantage filing the cases early as all decisions were delivered close to the end of the fiscal year.
But in some circumstances, it could help increase your chances, particularly if you are affected by restrictive policies at a particular embassy or are waiting on a non-operational embassy.
For most, they may want to wait and see how the situation develops, and listen under and understand lawyers rationale / legal theory before rushing to join lawsuits in 2022.
So everybody should consider their situation carefully, contact the lawyers, ask questions and satisfy you before joining.
If my embassy is not working can I transfer my case to another embassy?
In 2021 this proved to be the most effective way of working around embassy issues but this didn’t always pay off as some accidentally switched away from embassies which started working later to ones that slowed down towards the end.
You do not need to unlock your DS260 to transfer your case. KCC usually ignores the embassy you select and schedule you to an embassy-based on your country of residence.
KCC advices you to contact them if you have been not yet been scheduled to switch to another embassy. If you are already scheduled, they advise you to first contact the embassy you want to transfer to, get their agreement and then contact the embassy who has your case to transfer (or just ask the new embassy to request your case).
Whether a transfer is accepted or not is very much dependent on the policies in place at the target embassy. Many do not accept applicants outside their jurisdiction.
Sometimes you could get around this by claiming temporary residence in the country where the embassy resides.
For those without functioning embassies please refer to state department guidance on alternate embassies to transfer to.
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