OK – so let’s talk about DV2021.
Unless you have been living under a rock you will have heard me saying for some months now that the revocation is not the only hurdle we will have. There are many more concerns for DV2021. So – first let’s lay those concerns out there so that everyone is clear.
- PP10014 was the reason that many embassies were using in responses to applicants to say they were not interviewing any cases. So – their standard replies will change now that is no longer an issue.
- The embassies are in various states of reopening according to the Diplomacy Strong plan implemented by the Department of State. The Diplomacy Strong plan set out the conditions that should exist for each of three levels of reopening. The three levels determined the level of resources at the embassy (Level 1 up to 40% staff, Level 2 40 to 80% staff, and Level 3 80%+). The link I just gave shows what conditions should be in place in the country where the embassy is located, in order to decide which level the embassy should be in. Based on the resources (staffing) the embassy would prioritize which types of cases they would take on. In November, the DoS announced it would now be up to the embassy themselves to decide what cases they would take on. So – they might take some immigrant cases, but perhaps not all immigrant cases. Therefore the embassy opening is going to be different, embassy by embassy.
- The Schengen and similar geographic restrictions remain in force. Hopefully, they will be removed once more effective/sensible measures are in place. But the countries themselves are not helping. The UK for instance is leading the world in its vaccination program, and is seeing a large reduction in new cases as a result. The rest of Europe is not doing as well. While large numbers of cases, or new strains are being seen, the US government would be unwise to remove restrictions without very powerful measures being enforced (mandatory in USA quarantine periods for instance). So – DV2021 applicants will have to consider these restrictions for a while yet.
- Some Embassies are now informing people in some locations that they will not conduct interviews for people affected by the Schengen bans. That is arguably as bad (not legal) as the previous behavior to not issue visas that could not be used. However, as I have said before the 14 day restrictions are less overtly wrong, and couple with the Diplomacy Strong framework and embassy decision making ability described above, I suspect it will be hard to counter their behavior. The lawyers will try, but there is a possibility the restrictions will remain. I have said before many times, no Judge can order embassies to put their staff in danger. So the embassies will retain discretion. They could, however, be asked to find other ways to interview people that would then spend a 14 day quarantine period in a non restricted country.
- KCC is the bottleneck through which all DV cases have to pass. We know that their previous procedures with the documents have been extremely badly implemented and will confuse and confound the situation. But even if that were resolved, KCC have lost a lot of time to do their work, since they reduced their staffing levels during the last few months. Unless KCC increase the workforce dramatically and quickly and/or change their procedures, there is no doubt in my mind they would not have enough time to process and schedule all the cases needed to fill the 55K quota. They work with contract staff, so I am hoping the Anunciato case results in an order that they gear up their staffing to appropriate levels to handle a higher monthly volume of cases than they have ever handled before.
- I have mentioned before the Muslim ban effect. Of the 130k+ selectees this year, 15K were barred by the Muslim ban, now revoked. That adds to the pressure on the system (the system being KCC, background checking agencies, physicians, and the embassies themselves).
- The DV2020 Gomez case continues. If that case is finally won, at least 9095 visas will need to be processed – meaning about 4500 cases. Some of those cases were already moved to the embassies, but still there would be an impact of that win on the embassy capacity. Of course there is a chance that the lawyers manage to secure more visas for issuance to DV2020 cases, and that would add additional strain on the capacity problems.
- If the Gomez case is won, the DV2020 cases previously refused for the sake of the Muslim ban will have a chance to reopen their cases. These are “refused” cases, already at the embassies. Again, that will be additional strain on the system.
- DV2022 will be going ahead as planned. Unless the government delay the announcement of winners (as they did in DV2021) there will be the usual flood of DS260s into KCC during May. I hope they push back the announcement date.
- There are too many selectees in DV2021. Even without any of the above concerns and without having lost half of the year, this was likely going to be a year where we see cutoffs in place at the end of the year – meaning regions don’t go current. Remember we see overselection (therefore cutoff numbers) about half the time. Out of the last 6 years, 3 have been over selected, 3 were underselected. DV2021 would make the 7 year total 4-3. The right number of selectees is around 100k, DV2014 had 140K selectees and was over selected with cutoffs, DV2015 had 125K selectees and again cutoffs. DV2021 is between those two years (although we have a slightly higher quota now, and a more rigorous rule in the passport rule that will likely block many cases). But I think it is still too many.
- Outside of DV there is a HUGE backlog of cases waiting at the embassies. We can’t assume that embassies will only focus on DV cases.
As you can see there are a lot of factors that are looming for DV2021. The lawyers are well aware of all of these points, and are working behind the scenes on some of these issues. They have been clear they cannot reveal their discussions so we have to remain in wait and see mode. But I want people to understand the realistic position. I have been explaining this for months, so this should not be a surprise.
How can this be fixed? Well a preservation of visas (or more processing time) at the end of the year may be the only way forward. But that is not easy. The lawyers are asking for that in the Anunciato case, but the outcome on that decision (the preservation bit, not the whole case) may be months away.
There is no doubt a lot of damage has been done. The legal work done for DV2020 will be enormously helpful for DV2021. The lawyers we have are good and they have been getting good practice at winning these cases. But legal remedies don’t always get us everyone we want. Just because we want something “really badly” doesn’t mean we will get it. We must remain positive and hopeful, but as adults we must also be aware of how difficult this situation remains.
Covid sucks. It caused problems. That would have been bad in any situation, but it was made worse by the previous administration. I hope things will be better going forward.