President Biden Ends Immigrant Visa Ban [UPDATE]

Trump Era Visa Bans Rescinded by President Biden

On February 24, 2021, U.S. President Biden rescinded what has come to be known as the Immigrant Visa Ban or the Presidential Proclamation 10014 previously issued by former President Trump.  Former President Trump issued the Immigrant Visa Ban on April 22, 2020, that suspended certain immigrants from receiving immigrant visas and from entry into the United States.  The original proclamation prohibited the issue of immigrant visas through the end of 2020 and then was expanded through March 31, 2021.  President Biden’s actions are a step in the right direction to repair some of the damage done to U.S. immigration by the Trump administration. 

It is important to note that President Biden has not yet lifted President Trump’s Non-Immigrant Visa Ban, limiting certain non-immigrant work visas. This ban is currently in place until March 31, 2021.  Also note, that President Biden has maintained specific geographic COVID-19 health-related 14-day travel restrictions for certain countries and areas including the Schengen Area, U.K., Ireland, South Africa, and Brazil.  Travellers currently present in those locations may be exempt from the travel ban or may apply for a National Interest Exemption (NIE) to receive a visa or to travel to the U.S. 

The Department of State (DOS) is now able to issue visas for numerous immigrant visa categories that had been limited by the Trump Administration.  These same categories of Immigrant Visa holders may now enter the U.S.  This means that the following categories of immigrants now can process their visa applications: 

• Parents of US citizens
• Other family-based immigrants that are not included in the exceptions
• Immigrant Workers including EB-1, EB-2, and EB-3 workers not included in the exceptions
• Diversity Visa lottery immigrants
• Other special immigrants not included in the above exceptions (example – religious workers)

The DOS has also issued detailed guidance depending on visa type.  For many visa applicants, their situation may still require waiting for the processing of their case through the National Visa Center (NVC) or through the Kentucky Consular Center (KCC) for Diversity Visa Lottery selectees for 2021.  

Visa Backlogs at U.S. Consulates and Embassies

Important to this announcement is the ability locally of a U.S. Consulate or Embassy to be able to process all visas given that operations have been significantly impacted by COVID-19.  Starting in July 2020, Consulates began a phased resumption of routine visa services including immigrant visas on a post by post basis.  Unfortunately, not all posts worldwide have resumed routine immigrant visa applications at this time.  This has created a significant backlog worldwide in visa processing.  Hopefully, the Administration will move quickly to safely operate U.S. consular posts and fairly adjudicate all these visa applications. 

The U.S. Consulate in Sydney and the U.S. Consulate in Auckland are currently undertaking more routine immigrant visas services that were not subject to the Immigrant Visa Ban.  As COVID-19 is an ongoing day-to-day situation, the return to routine services could be impacted by further COVID-19 outbreaks. 

Specific Impacts on Fiscal Year 2020 Diversity Visa Lottery

The Immigrant Visa Ban has impacted some Fiscal Year (FY) 2020 Diversity Visa (DV) Lottery selectees that could not travel to the U.S. due to the original presidential proclamation, but actually were able to receive a visa due to pending litigation discussed more below.  These were Diversity Visas that should have been issued no later than September 30, 2020.   

The ongoing class action litigation in Gomez v. Trump related to how the Immigrant Visa Ban impacted FY-2020 DV Lottery cases. 

On February 19, 2021, the U.S. District Court for the District of Columbia ordered an emergency injunction preserving and extending the validity of most diversity visas (DVs) from the 2020 diversity visa lottery.  This order preserved the validity period for visas issued for DV-2020 that could not be used due to the Immigrant Visa Ban.  Related to the order, if the Immigrant Visa Ban ended before the end of the Gomez ligation (as is the case now) that “any such visas issued under the court’s September 2020 injunction will be treated as if they were first issued on the future date that the ban no longer is in place. In combination, the court’s order ensures that the approximately 7,000 diversity visa winners who got their visas after the September preliminary injunction win in the Gomez case will not lose their chance to come to the United States.”   

Thus, any current DV-2020 immigrant visa holder (that is not subject to additional restrictions through the 14-Day Health Proclamation requiring an National Interest Exemption) should carefully review the specific guidance from Department of State as stated below:  

Diversity Visa 2020 Applicants:  Those holding diversity visas issued in 2020 that are still valid may seek entry to the United States immediately, despite the visa annotation, “Entry Subject to PP 10014.”  Individuals whose DV-2020 visas have expired may not be issued replacement visas; however, individuals who received diversity visas in 2020 as a result of orders in the court case Gomez v. Trump may travel to the United States on an expired visa as the court ordered the government to treat these visas as though they were issued on the date P.P. 10014 was rescinded.  The court did not specify for how long the visas would be considered valid.   Additionally, it may be possible that the court order could be changed or modified in some important respect.  Therefore, applicants wishing to benefit from the order are encouraged to travel as soon as practicable as the order could change.  

For those DV-2020 selectees that were not issued immigrant visas by September 30, 2020, litigation remains ongoing and you should closely follow the class action litigation in Gomez v. Trump and understand how this pending litigation may impact you as a class member.  This overview contains recent comprehensive question and answers on this ongoing litigation.

Help and Advice 

Worldwide Migration Partners can advise immigrant visa holders or those with immigrant visa cases pending.  If you would like further information regarding the end of the Immigrant Visa Ban and your case, please don’t hesitate to reach out to us!