Story Of Menike- A Diversity Visa Lottery Winner

Menike was a lawyer in her own country Ranka.[i] In 2018 she heard about the Diversity Visa Lottery program (DV) which helps people to get a visa to live and work permanently in the USA. She really loved to travel to another country for her future studies and she really appreciated the free and independent lifestyle which the USA is known for. Although she was educated successful and well respected in Ranka, as Ranka was still a developing country, her prospects were limited. She wished and dreamed for more for her family and especially for her child. Having high hopes, she applied for the DV Lottery in November 2018. When the results of the DV were released in May 2019, she was astonished to find out that she has won. Everyone congratulated her, and her family and she started to plan their new life in the USA.

Menike filed the long informative visa applications in June 2020. The process and the requirements were extremely “stringent”.[ii] She was pleased and more hopeful when she came to the final stage-interview in March 2020. However unfortunately few days after the notification about the interview she got another notification cancelling the interview until further notice due to Covid 19. Menike’s hopes about the interview started to become uncertain. The Immigration and Nationality Act of 1990[iii] (INA) clearly states that the visa needs to be issued before September 30^th which is the last date of the fiscal year and there were only 5 months until September,2020 and she has already planned to start their life in the USA.  As she was waiting for the embassy to reschedule their interviews, the then President Trump enacted a travel ban (Presidential Proclamation 10014) for all immigrants (travel ban).[iv] The reason for the PP 10014 was to protect the job market of the country during economic recovery after Covid 19 outbreak.[v] US embassies in most of the countries stopped scheduling all immigrant visa interviews referring to the travel ban. The travel ban was extended again until the end of the year 2020.[vi] The DV Lottery winners were agitated and were worried about their chances. Will the USA government provide a way to safeguard the interests of the DV winners? Chances were unlikely, the president himself attempted to cancel the DV program and stated in his rally that DV program brings “worst of the worst”.[vii]

A pro bono action was filed in Columbia District Court- Gomez v. Trump, 485 F. Supp. 3d 145 (D.D.C. 2020) Menike gave information about her family and their concerns about the time limit, their legitimate expectation to secure the opportunity, about the plans they have made to permanently settle in the USA. On September 04^th 2020 Judge Mehtha issued an interim order directing all embassies to treat the DV cases as “mission critical” and to try and issue as much as possible.[viii] Menike was so grateful that the Judge could understand the true situation and the importance of the time and the unchangeable deadline on September 30^th. On 26^th September 2020 they got their visas issued and finally they got their true lottery in their hand. But they could not travel due to the travel ban, which was to last until December 31^st, 2020, and their visa was only valid only till March 15^th, 2021, and was non-renewable.

Many DV winners were hopeful and positive that the ban will be expired on the 31^st of December 2021 as the new President was elected and his political agenda supported immigration.  Menike was hopeful too and she booked flights for 1^st of January. On 1^st of January 2021, she woke up to find that the proclamation was again extended for 6 more months.[ix] Manike was completely lost now. She heard stories of many other winners who had moved to other countries for 14-day quarantine, who were on their flights and some who even managed to enter the USA.[x] Menike had bid farewell to all family and friends, resigned from jobs, enrolled in a university, paid for their flights, sold their properties and are now left with their travelling bags and money in dollars. Everything was at a stake. The dream was now a nightmare. They couldn’t sleep well, couldn’t go back to their past lives, they had to explain all relatives and friends about the Presidential Proclamations.

After two months the new president cancelled the travel ban[xi] and the court also decided DV winners to be granted a “national interest exception”[xii] and to be allowed into the country. Just before few days Menike’s visa to expire forever, they were lucky to come to the USA and start their new life. Yet after a prolonged excruciating wait!

Incompatibility between promotion of diversity and treatment of immigrants? 

DV program was not merely introduced to manifest American philanthropy. It largely benefits America. Diversity creates a larger pool of differently skilled work force, more innovation and more productivity. [xiii] A “diverse, equitable, inclusive, and accessible workplaces yield higher-performing organizations”.[xiv] When the USA, as a country with a historical “exceptionalism”[xv] ideology provided for DV System through a provision in a public legislation and by conducting the program in a systematic manner throughout a period, it created a legitimate expectation on the people to act accordingly and to rely on the system. After winning the lottery, winners pause building their lives in their home country hoping that they will move to the USA soon. They pause planning new children, taking new job opportunities, making important investments in their countries and so on. The process itself can take nearly 18 months from the moment they win and until they have their visas issued. Even after having sacrificed a significant period of time from their lives, thousands of winners from all over the world are left without any result. Many DV winners who celebrated when they found out they won the lottery are still suffering and the so called DV program became a mere malfunctioned program for many winners. (The statistics show that number of initial entries have significantly dropped after 2020.[xvi]) Some new measures are being taken by the new administration to protect the interests of the immigrants including diversity winners. What if the administration was still against immigration? All of Menike’s time, money effort and expectations would have been washed away and she would need more effort, time, and resources to adjust to her old life. Does an immigrant who hope to legally enter the USA following the well-established pathways deserve such an ending?

Does the DV lottery bring unskilled people?

The DV program brings in unskilled people to the country is a mere misconception.[xvii] The DV entry process initially requires a high school degree or two years of work experience in a field that requires 2-year training. To understand and keep up with the process a person needs to be sophisticated and must have enough money to pay the visa fee, immigrant fee and air tickets. A study has found that most of the diversity immigrants are degree holders[xviii] and it is not surprising to tell that only an educated and committed person can think of restarting the life in a completely new country.

Battle between the executive, legislature, and judiciary

Can the executive president pass proclamations without review, without any reflection on how such a proclamation would affect others and without a rational basis? When proclamations and executive orders were tested before courts, courts tend to view immigration as an area where the judiciary takes on a passive role in challenging other branches of government.[xix] INA was an act of legislature and, if the president can declare against the legislature and with the judiciary hesitant to go against Executive power, can one claim that there is a sufficient system of checks and balances? Power of the executive to enact “backdoor bans”[xx] in the name of national security succeeded legal and constitutional challenges, and all immigrants including DV winners were banned in the name of labor market protection during Covid 19. Does immigration and provisions of INA depend on the personal political agenda of the next executive?

[i] The story uses a pseudo names and non-existing country names.

[ii] Travel State, Immigrate, (December 27^th, 2021) https://travel.state.gov/content/travel/en/us-visas/immigrate.html (Diversity Visa Program is defined as “Annual program making a limited number of visas available to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States”

[iii] https://www.congress.gov/bill/101st-congress/senate-bill/358- Part 3

[iv] Federal Register Vol. 85, No. 81 Monday, April 27, 2020 (December 30^th,2021) https://www.govinfo.gov/content/pkg/FR-2020-04-27/pdf/2020-09068.pdf-.

[v] “Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak”

[vi] https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-amendment-proclamation-10052/

[vii] https://www.bloomberg.com/news/articles/2017-12-15/trump-calls-immigrants-with-lottery-visas-worst-of-the-worst

[viii] Gomez v. Trump, No. 20-CV-01419 (APM), 485 F.Supp.3d 145, (D.D.C. Sept. 4, 2020).

[ix] Proclamation on Suspension of Entry of Immigrants and Nonimmigrants Who Continue to Present a Risk to the United States Labor Market, (December 27^th, 2021), https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-continue-present-risk-united-states-labor-market/

[x] Jan. 1, 2021- Update for Mohammed, Fonjong, and Kennedy DV 2020 visa holders, (January, 10, 2022) https://www.youtube.com/watch?v=8EQTGOPdS9U

[xi] A proclamation on revoking Proclamation 10014, White House, (December 27^th, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/24/a-proclamation-on-revoking-proclamation-10014/.

[xii] Gomez v. Trump, No. 20-CV-01419 (APM), 485 F.Supp.3d 145, Document 209 Filed 02/19/21- Granting the motion for ‘Emergency Injunctive Relief’.

[xiii] Thomas Kemeny, Abigail Cooke, Spillovers from immigrant diversity in cities, Journal of Economic Geography, Volume 18, Issue 1, January 2018, P 213–245, (December 31^st, 2021) https://doi.org/10.1093/jeg/lbx012.

[xiv] The White House, Briefing Room, Executive order on diversity equity inclusion and accessibility in the federal workforce, (January 10, 2021) https://www.whitehouse.gov/briefing-room/presidential actions/2021/06/25/executive-order-on-diversity-equity-inclusion-and-accessibility-in-the-federal-workforce/

[xv] Ian Tyrrell. (1991). American Exceptionalism in an Age of International History. The American Historical Review, 96(4), 1031–1055. https://doi.org/10.2307/2164993

[xvi] Diversity Visa Program, DV 2019-2021: Number of Entries Received During Each Online Registration Period, (December 28^th, 2021), https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-program-entry/diversity-visa-program-statistics.html. (In 2020 the total entries were 23182554 in 2021 the number fell in to 11830730).

[xvii] The Myth of the Unskilled Diversity Visa Immigrant, By Jeremy L. Neufeld, November 20, 2018, (December 29^th, 2021), https://www.niskanencenter.org/diversity-visa-myths/.

[xviii] Hailu, T. E., Mendoza, B. M., Lahman, M. K., & Richard, V. M. (2012). Lived Experiences of Diversity Visa Lottery Immigrants in the United States. The Qualitative Report, 17(51), 1-17, (December 31^st 2021) https://doi.org/10.46743/2160-3715/2012.1697

[xix] Chae Chan Ping v. United States, 130 U.S. 581 (1889) (Referred to power of “political branches” over immigration)

[xx] Shoba Sivaprasad Wadhia, National Security, Immigration, and the Muslim Bans, 75 Wash. & Lee L. Rev. 1475 (2018), (January 2^nd, 2022), https://scholarlycommons.law.wlu.edu/wlulr/vol75/iss3/9, at p. 5.