Analysis

Pandemic May Disrupt Compliance With Diversity Visa Order

By Alyssa Aquino
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Law360 (September 9, 2020, 9:18 PM EDT) -- A federal judge recently shielded thousands of diversity lottery winners from the Trump administration's visa ban, but with only three weeks to secure green cards amid a pandemic, some lottery winners' shot to enter the U.S. could time out.

Last Friday, U.S. District Judge Amit Mehta directed the State Department to "expeditiously" work towards sending out the 45,000 diversity visas that were put on ice in the spring before they expire on Sept. 30. However, lottery winners who have to navigate a web of coronavirus lockdowns may not get to a consulate in time to secure their visas.

"All of this is really a work in progress," said Jesse Bless of the American Immigration Lawyers Association, one of several attorneys representing the lottery winners. "You have hundreds or more consulates, you have 45,000 or so applicants, you have a huge machine of processing at the Kentucky Consular Center. There's a lot of moving parts."

In April, President Donald Trump barred green card seekers from moving to the U.S., citing the domestic economy's financial downturn amid the pandemic. That order, which the administration expanded to cover more visa categories in June, swept in the thousands of foreigners who were selected from a pool of millions for a diversity visa.

The visa ban met a wave of opposition from foreign nationals, immigration advocates and domestic businesses. Several challenged the proclamation outright, and others accused the State Department of improperly using the prohibition to stop work on immigration applications. That latter set of claims swayed Judge Mehta, who ordered the State Department to make a good faith effort to process the thousands of pending diversity visa applications.

Generally speaking, overseas U.S. consulates and embassies have the manpower and resources to process the visas. Though the department has about 45,000 visas to issue, that work is split among 170 consulates, which aren't dealing with their full pre-pandemic workloads, said Charles Kuck of Kuck Baxter Immigration Partners LLC, who also represents the lottery winners.

The primary concern for diversity visa applicants, however, remains whether they can get to a consulate in time. That in itself is subject to a web of policies and practices shaped by the pandemic.

Foreign nationals with access to an "in-country" consulate may have to contend with domestic lockdown orders, which vary across the world. However, there are hundreds or thousands of lottery winners whose nearest U.S. consulate is out-of-country, including Iranians. Those applicants will have to figure out which countries' coronavirus mandates won't blockade their efforts.

Other pandemic orders include the shuttering of both consulates and borders. Cubans, for example, are under strict domestic lockdown orders that have closed its consulate and are barred from leaving the island until Sept. 30. Moreover, nearby Guyana — which permits Cuban passport holders to enter without a visa — has closed its borders.

Attorneys are still waiting to see how individual consulates will react to Judge Mehta's order and whether the difficulties posed by the pandemic will prevent applicants from obtaining their visas. But Rafael Urena, another attorney for the winners, pointed out that the confusion of navigating this web is its own roadblock.

"At this point, it's just mass confusion how they're going to adjudicate these visas. Anytime there's confusion there's going to be individuals going to be left out, in particular when there's 21 days from the deadline," Urena said.

The State Department added another layer of complexity in a Tuesday guidance on Judge Mehta's order. In the spring, Trump required travelers from five areas of the world — including the Schengen Zone, Iran and Brazil — to quarantine in a third country before entering the U.S. Citing these orders, the State Department instructed officials to hold off on issuing diversity visas to affected applicants until they've quarantined for 14 days elsewhere.

A State Department representative did not respond Wednesday to questions on how consulates would comply with the court order.

Urena cautioned that the text of the State Department's guidance may not line up with consular officers' actions on the ground. But on its face, applicants facing the regional travel restrictions "have to leave basically tonight" to meet the 14-day quarantine, Urena said.

"It's not going to be possible for people to do that — the resources, the logistics. It's going to be too much for people to do to get their visas," he said.

Bless said he was planning on taking up the issue with Judge Mehta in what he anticipates to be one of several conferences the diversity lottery team will push for before Sept. 25, when the court will reconsider extending the visa deadline.

"It doesn't seem to mesh with the spirit of the judge's order," Bless said.

Both Bless and Urena called the State Department's instruction nonsensical, saying that visa winners wouldn't be able to enter the U.S. until Dec. 31.

Moreover, these travel concerns primarily affect individuals who are relatively further along in the diversity visa application process. There are still an unspecified number of foreign nationals whose applications were frozen even before they scheduled a consular interview, Kuck said.

To qualify for the visa, lottery winners must send their applications to the Kentucky Consular Center showing they meet the education and work requirements of the green card. The KCC then conducts an early-stage vetting of the documents — it is the only State Department consulate to perform this task, so a logjam here would time out diversity visa applicants entirely, Kuck said.

Applicants also have to contend with other logistical issues, such as medical reports in their applications that went stale between the spring and September. However, advocates stressed that it's within the State Department's power to be lenient. The department could issue the visas without the in-person interviews, instruct consular officers to forgive stale application materials and prolong the shelf life on medical evaluations, Bless said.

In July, the State Department flexed such authority when it exempted foreign students from Trump's 14-day quarantine policy for travelers from the Schengen Area, the United Kingdom and Ireland.

As far as Bless is concerned, it's down to the government to untangle this web of roadblocks. "The government sat on its hands from March till now. ... this is entirely a problem made by the government's incorrect interpretation of the proclamation. It's up for them to correct it."

"There are workarounds. If the government wants to benefit these diversity visa applicants, they know how to do it," he said. "If they want to drag their heels ... they can do that, too."

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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