So as you are all probably aware now, there was much to celebrate for DV2020 visa holders today. A lot happened in quite a short space of time. I have now had a better chance to read the order by Judge Mehta, and so let’s recap that order AND the other actions we had heard of prior to the order.
So in chronological order, the winning started earlier this week. I became aware of a case in the Netherlands where a DV2020 visa holder was about to have her visa expire on the 20th. She contacted the embassy, and she soon was told that the embassy was discussing her case with the Department of State in Washington. The embassy told her that they were working on helping all the DV2020 cases with visas issued, but particularly the cases that were expiring first. I was thrilled of course and posted a tweet about feeling positive without explanation.
I did not want to say anything further about specifics of that case in case it caused the government lawyers to step in and advise the DoS to stop that plan. For the sake of that case, and knowing how important that was, I gave no information other than the cryptic tweet. This was Wednesday early morning – the day before the hearing. The NIE was then confirmed early morning (my time) on Thursday. It granted exemption from PP10014, 10143 and the Schengen 14 day restriction. Awesome news for the lucky recipient who then got her Covid all clear test and booked her flight. I believe she has actually entered the USA this evening. Now it is important to understand this selectee had no justification to be eligible for an NIE – this was granted only because she would otherwise have lost her visa. So – it was clear the government were trying to do something.
Then in the hearing on Thursday, the government lawyers confirmed the fact that this NIE had been issued AND one other case.
On Friday the government further confirmed that they had issued other NIEs also covering cases expiring up to Feb 28th. Again – this was a clear signal that they (DoS) intended to “take care” of those people with visas issued, and were prepared to issue NIEs to ensure fair treatment of those cases.
I started a live Q&A and almost as I was starting, Curtis tweeted that Judge Mehta had issued an order as a decision from the hearing the previous day.
The order itself is EXTREMELY generous in its protection. It strikes me as a cleverly written order that really uses the powers of the court in a very wise way. The order itself can be read here. The order uses the All Writs Act to protect the visa holders from losing their standing while decisions are being made. This was a crucial part of the hearing on Thursday where Judge Mehta posed a question to the government lawyer (York) about what if he (Mehta) did nothing. He asked York for an opinion about whether the visa holders would lose standing. York seemed unprepared for the question and then incorrectly answered the question saying they would retain standing. Judge Mehta immediately countered saying he was convinced that they would lose standing (a point that Chuck Kuck later explained was decisive in assuring the win). And that belief is what has allowed Judge Mehta to protect the visa holders now. Because the court is given huge discretion to protect the status quo for people to make sure they do not lose their rights while the court makes up its mind. Awesome legal “tap dancing”.
Now – the order itself is very generous. Almost too generous – I will explain.
The order explains that visa holders normally have 6 months visa validity. Now that is actually incorrect as many of you will know – the 6 months is counted from the day of the medical, and can even be shorter than 6 months in certain medical circumstances. However, the order paints the picture that people would normally have 6 months to make an orderly move to the USA, and of course the DV2020 holders have not had that “orderly” experience due to the ban, then the extension and also the Schengen bans.
So, as I read it, the order gives visa holders 6 months to enter the USA (6 months of validity) after one of three dates – whichever date comes first.
- The day the administration revoke the 10014 ban (if that happens).
- The first day after the ban expires (currently set as March 31)
- The day that Mehta gives his final ruling in the Gomez case.
Now hold on – don’t get too excited yet. I am concerned that Mehta has written an order that is difficult to implement, and goes beyond the benefits that visa recipients would normally receive. So for that reason (fear of appeals) I think we might see a different resolution. The order itself says in the closing words that if the government continues granting NIEs the court will listen to requests to modify the order. Mehta is ensuring no one is worse off by his order, but also (I believe) opening the door for the government to continue with the NIE plan, either with or without revocation of the 10014 ban.
So – the government might find the order unpalatable, and might instead try to deal with things through NIEs (or just have the visas revoked). In that case we could see this order changed. Therefore I feel at the moment is it wise to use your existing visa by the expiry date if at all possible. I personally would not want to gamble a certainty against a possibility, even though the Judge has been extremely clever in his order.
The lawyers will have a perspective about this and I know Chuck Kuck plans to discuss this in a live session tomorrow. So – they may see things differently to my take. But the positive news is that ANY way you cut it, the war is won for the visa holders. They will be able to enter the USA, the only question remaining is when. So it is fantastic news.
Let me deal with a couple of questions I know will be asked.
Q: Can people with March expiry dates enter immediately?
A: NO. we have to wait this week to see what action the Biden administration takes on 10014 and see whether DoS need to continue to grant NIEs. So – for those with VERY early March expiry dates, you might need an NIE – but there will be time this week to figure that out. You are protected anyway.
Q: Does this help cases that expired already, perhaps earlier this month (before the 17th)?
A: Updated statement. My understanding is that visas issued from September 4 to September 30 (Gomez I) are PROTECTED under this order. BUT I don’t know yet how those cases will be helped. Patience.
Q: What about DV2020 cases that did NOT get a reissued or issued visa in September. Are they affected by this order?
A: No – those cases are not affected at all by the order and will need to wait for the final hearing & outcome in the Gomez case.
Q: Does this affect DV2021 in any way?
A: No – this is only about DV2020 visa holders. We still need to wait for the Anunciato case to move things ahead. But you can see the justice system is working and our lawyers know how to deliver a win! So remain positive.
Now then – let’s remain calm and wait to see what happens over the next few days. The government lawyers will need to work out their response and work with DoS to figure out how they can address the implementation of the order, or try and engineer a more palatable solution. But it is clear – they have to do something that pleases the DV2020 visa holders.
So – for those of you sipping endless mojitos, you are soon going to get back to work and give you liver a rest!!!
Here is my video update from today where I learned of the order LIVE on air!