Gomez v. Biden FAQ

Updated Wednesday, August 18, 2021

The American Immigration Lawyers Association (AILA), Justice Action Center (JAC), and Innovation Law Lab, with pro bono support from Mayer Brown LLP, filed the lawsuit Gomez v. Trump in the summer of 2020 on behalf of family-based immigrant visa petitioners, diversity visa 2020 lottery winners, and nonimmigrant employment-based visa sponsors, challenging President Trump’s April and June 2020 proclamations which effectively stopped almost all immigration to the United States.  On February 24, 2021, President Biden rescinded the ban on immigrant visas.  On April 1, 2021, President Biden allowed the nonimmigrant visa ban to expire.

Important information for winners of the DV-2020 lottery: If you are a DV-2020 lottery winner and have not yet been issued a visa, there is a possibility that you may be able to receive one of the 9,095 diversity visas that a federal judge has ordered the State Department to reserve and process. On August 17, Judge Mehta issued an opinion granting partial summary judgment to Plaintiffs and ordering the government to process the 9,095 diversity visas that he reserved in September 2020. The court has directed the parties to confer as to the timeline for visa processing and will issue a final order once that question is resolved. It is uncertain at this time whether the government will appeal the court’s order.  If the government appeals, the relief could be delayed or altered.  Gomez counsel will update these FAQs as soon as there is additional information about whether or not the government is appealing the case and how that might affect the availability of the reserved visas.

If you are a DV-2020 diversity visa holder and your diversity visa does NOT have an expiration date between February 17 and February 28, 2021, the State Department will treat your visa as if it had been issued on February 24, 2021. Your visa will be valid from this date for the same validity period for which it was originally issued. Please see more information below under FAQ for DV-2020 selectees

Here is a timeline of what’s happened in the case so far: 

  • September 4, 2020:  A federal court in Washington, D.C. issued a preliminary injunction ordering the Trump administration to stop denying immigrant visas to 2020 diversity visa winners (DV-2020) on account of Presidential Proclamations 10014 and 10052. It also ruled that the order applies to all DV-2020 lottery winners, and not just the plaintiffs named in the lawsuits. Because of this ruling, over 7,000 individuals received DV-2020 visas.  
  • September 30, 2020:  The court amended its September 4 ruling and ordered the State Department to reserve an additional 9,095 diversity visas, past the September 30 deadline, for 2020 diversity lottery winners. It also ruled that lawyers representing the Gomez plaintiffs would now also represent all DV-2020 lottery winners who had not received visas as of April 2020.  The court order did not rule that Proclamations 10014 and 10052 are unlawful at this preliminary stage of the case — meaning that unfortunately, individuals impacted by the immigration ban, even if they had valid visas, could not enter the U.S. 
  • January 1, 2021: President Trump extended the immigration ban through March 31, 2021.
  • February 2, 2021: President Biden issued an Executive Order directing a review of agency actions that are inconsistent with the administration’s policy that “immigration processes and other benefits are delivered effectively and efficiently.” However, neither this Executive Order — nor others signed by President Biden since he took office — rescinded or made any explicit reference to the immigrant visa ban (Presidential Proclamation 10014) or nonimmigrant visa ban (Presidential Proclamation 10052).
  • February 19, 2021: Upon a request by Gomez Class Counsel and other Plaintiffs’ attorneys, the district court granted emergency relief to DV-2020 visa recipients who were issued visas under the Court’s September 4, 2020 injunction, but whose visas would expire before the then-current March 31, 2021 expiration date of the Proclamations. However, DV-2020 visas that expired or will expire between February 17 and February 28, 2021 have not been extended under the Judge’s order; recipients of those visas were granted National Interest Exceptions and must travel to the United States before their original visa expiration date.  If you are a DV-2020 visa recipient whose visa expires between now and February 28, 2021, you must travel to the United States before your visa expiration date.  See more information about that relief below under Q: What do the court’s prior orders in Gomez v. Trump mean?
  • February 24, 2021: President Biden rescinded Proclamation 10014 (the immigrant visa ban), which means individuals with immigrant visas, including DV-2020 visas, may now seek to enter the U.S. upon completion of other entry formalities (e.g. completing Covid-19 testing and other country or region-specific formalities). President Biden did not take action to revoke the entry ban on nonimmigrant temporary workers.
  • April 1, 2021: President Biden allowed Proclamation 10052 (the nonimmigrant visa ban) to expire. Individuals who were refused visas subject to the restrictions of this Proclamation may now reapply by submitting new applications.
  • August 17, 2021: Judge Mehta granted in part Plaintiffs’ motion for summary judgment, ordering that the government process the reserved 9,095 DV-2020 visas “in a random order” until they have all been issued. The court directed the parties to confer and notify the court by August 25, 2021 whether they have agreed to a timeline within which the Department of State must process the visas.

 

FAQ 

Q: What does it mean that President Biden has overturned Proclamation 10014 and allowed Proclamation 10052 to expire?

Presidential Proclamation 10014 (the immigrant visa ban) was revoked on February 24, 2021. This means that people who have been issued immigrant visas may, subject to other provisions of immigration law and protocols, travel to and seek admission to the United States.

Presidential Proclamation 10052 (the nonimmigrant visa ban) expired on April 1, 2021. This means that PP10052 no longer suspends the entry of nonimmigrants upon issuance of visas abroad.

Note, however, DOS processing delays and President Biden’s COVID-19 related suspensions of entry, also known as the regional bans on entry, may impact certain non-citizens’ ability to receive a visa and seek entry to the United States.  For more information on whether this will impact your ability to travel, please follow this link:  https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/covid-19-travel-restrictions-and-exceptions.html

Q: What is the impact of the President’s revocation of Proclamation 10014 and the expiration of Proclamation 10052 on the Gomez v. Biden case?    

The rescission of Proclamation 10014 and the expiration of Proclamation 10052 did not resolve all of the issues in the Gomez case. The district court still needed to decide whether the government must issue the 9,095 visas to a portion of the DV-2020 lottery winners who have not yet received visas.  On August 17, 2021, Judge Mehta granted in part Plaintiffs’ motion for summary judgment, ordering that the government process the reserved 9,095 DV-2020 visas “in a random order” until they have all been granted.

In addition to our proceedings before the district court, Gomez counsel were also appealing Judge Mehta’s partial denial of our request for injunctive relief. Because the Proclamations are no longer in effect, on April 9, 2021, the D.C. Circuit Court of Appeals dismissed the appeal as moot. This decision does not impact the proceedings before the district court, where we have just won a decision ordering the government to process the 9,095 reserved DV-2020 visas.

Q: What does Judge Mehta’s August 17 opinion mean?

On August 17, Judge Mehta issued an opinion granting in part Plaintiffs’ motion for partial summary judgment. This decision means that Plaintiffs have prevailed on their legal claims that Defendants’ No-Visa Policy was unlawful, that Defendants inappropriately excluded diversity visas from mission-critical via processing, and that Defendants unreasonably delayed and withheld diversity visa adjudication.

Because Judge Mehta ruled for Plaintiffs on these claims, he has ordered that the 9,095 reserved DV-2020 visas be issued to Gomez class members “in a random order” until all visas have been granted.

However, Judge Mehta’s August 17 opinion is not final. Judge Mehta has directed the parties to confer about the timeline by which the 9,095 reserved visas should be issued and to notify the court by August 25 about whether an agreement has been made. Judge Mehta will issue a final order once the timeline question is resolved.

Additionally, the government still has the option of appealing Judge Mehta’s decision, which could delay issuance of the visas or change the outcome of the case. The government has 60 days to appeal the decision to the D.C. Court of Appeals, if they choose to do so.  Gomez counsel will update the class as soon as there is additional information about whether or not the government is appealing the case and how that might affect the availability of the reserved visas.

Q:  What do the court’s prior orders in Gomez v. Trump mean?

In his September 4, 2020 ruling, the district court judge, Judge Mehta, granted preliminary relief for DV-2020 selectees, and ordered the State Department to process as many diversity visa applications as possible before the September 30 fiscal year deadline. In a later order on September 30, the court ordered the State Department to reserve 9,095 diversity visas pending a final adjudication on the merits in the case. This means after legal proceedings in the district court have concluded.

The court also granted class certification to DV-2020 lottery winners — meaning all diversity visa lottery winners for 2020 who did not receive a visa prior to April 23, 2020 are covered by the court order, and not just the plaintiffs whose names appear in the case. The judge also appointed the Gomez lawyers — that’s attorneys from the American Immigration Lawyers Association, Justice Action Center, Innovation Law Lab, and the Law Office of Laboni A. Hoq, who have been working on the case pro bono — as class counsel.

On February 19, 2021, Judge Mehta granted our motion for emergency relief for DV-2020 class members who received diversity visas in September 2020, but whose visas will expire on or before March 31, 2021. Apart from those visas that will expire between February 17 and February 28, 2021, the judge ordered the government to “treat all visas issued or renewed pursuant to Gomez I as having been issued in the first instance as of the date that this court renders a final judgment in this action,” or as of the date that the Proclamations are no longer in effect – whichever comes first.

The ban was rescinded on February 24, 2021. Therefore, DV-2020 winners who have been issued immigrant visas may, subject to other provisions of immigration law, travel to and seek admission to the United States. Under Judge Mehta’s order, the government must treat DV-2020 visas that were issued in September 2020 under the Gomez I order as if they were issued on February 24, 2021 (the date of the Proclamation’s rescission). However, DV-2020 visas that expired or will expire between February 17 and February 28, 2021 have not been extended under the Judge’s order; recipients of those visas were granted National Interest Exceptions and must travel to the United States before their original visa expiration date. If you have a visa that expired or will expire between February 17 and February 28, 2021 and you have not been granted a National Interest Exception, please contact class counsel immediately at jordan@innovationlawlab.org.

Q: Are there other cases that have provided relief for non-DV-2020 plaintiffs?

On October 1, a district court in California struck down Trump’s June proclamation barring nonimmigrant workers, so long as they or their sponsoring employers are members of the U.S. Chamber, National Association of Manufacturers, Technet, and the National Retail Federation. This is good news for those visa applicants. Unfortunately, it does not help all impacted nonimmigrant workers, nor diversity visa winners and individuals who have been separated from their families as a result of the President’s bans on entry (However, as discussed above, they are no longer subject to entry suspensions under President Biden’s revocation of Proclamation 10014).

The Northern District of California also granted a preliminary injunction to beneficiaries of immigrant relative visa petitions filed by 181 individual family immigration petitioners.  Family members of named plaintiffs in that case should contact their counsel with any questions.

Q:  Why is this case now referred to as Gomez v. Biden?

Gomez v. Biden is the same ongoing case as Gomez v. Trump. Because this case sues the President in his official capacity, when President Biden took office he was automatically substituted for President Trump as the lead Defendant in this case.

 

 FAQ for DV-2020 selectees

Q: Will the consulates resume the processing of diversity visas for fiscal year 2020 now that the Proclamation has been rescinded? 

By statute, the consulates are not permitted to issue diversity visas to DV-2020 lottery winners after September 30, 2020.  However, Judge Mehta reserved 9,095 DV-2020 visas in September 2020, and he has now ordered the consulates to issue these visas to class members.  Because the government may still appeal and the parties have been directed to confer on the timeline for visa issuance, it is not clear when the consulates might actually resume processing of these visas. See answer above to Q: What does Judge Mehta’s August 17 opinion mean?

Q: How many DV-2020 selectees will actually receive visas?

Judge Mehta has ordered that the government issue the 9,095 DV-2020 visas that he reserved in September 2020. Including these reserved visas, the State Department has estimated that the total number of diversity visas that will have been issued for FY 2020 will be around 27,000. This number is about half of the number of diversity visas that are issued in a typical year. We had initially asked the district court to issue a total of about 43,000 DV-2020 visas, taking into account some reduced capacity to process visas due to the COVID-19 pandemic, but the court declined to do so.

Q: If the additional 9,095 visas that the court has reserved are issued, to whom and how will they be distributed?

Pursuant to Judge Mehta’s August 17 opinion, the reserved visas would be issued in a random order. Judge Mehta concluded that because the immigration statute requires “that the processing of diversity visas proceed in a random order,” he would “not order Defendants to prioritize certain DV-2020 applicants over other class members.” This relief is consistent with Gomez class counsel’s request that the reserved visas be allocated fairly and in a random order.

Q: When will the additional 9,095 visas that the court has reserved for DV-2020 winners be processed?

At this time, we do not know when the 9,095 reserved visas will be issued. Gomez class counsel will advocate for visas to be processed as expeditiously as possible when we meet with government counsel to discuss this issue, pursuant to Judge Mehta’s instructions.

Q: I was issued a visa in September of 2020 that is expiring soon.  What should I do? 

If your visa was set to expire between February 17 and February 28, 2021, the validity of your visa was not extended under Judge Mehta’s February order, and you must travel to the United States before your visa’s original expiration date.  The government has advised class counsel that the State Department has been in touch with all DV-2020 recipients who fall into this category.  If your DV-2020 visa expired or will expire between now and February 28, 2021 and you have NOT received a National Interest Exception, please let class counsel know immediately by emailing jordan@innovationlawlab.org.

Apart from those visas that will expire between February 17 and February 28, 2021, “all visas issued or renewed pursuant to Gomez I” (the district court’s September 4, 2020 order) must be treated as if they were “issued in the first instance” on February 24, 2021 (the date that the Proclamation was rescinded). So, for example, if you were issued a DV-2020 visa on September 15, 2020 that was valid for six months and set to expire on March 15, 2021, the government must now treat your visa as if it were issued on February 24, 2021 and will expire on August 24, 2021.

Q: I was issued a visa in September of 2020 that has already expired.  What should I do? 

The State Department website states (as of March 1, 2021) that “individuals who received diversity visas in 2021 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” (February 24, 2021). Please see the State Department’s guidance for DV-2020 Applicants at this link for the most updated information.

If you are traveling to the United States on an expired DV-2020 visa that remains valid due to the Gomez order, you may wish to print this statement and bring it with you to the airport.

Q: If additional DV-2020 visas are processed, it will be challenging for me to receive a visa because the consulate in my country is closed. What can I do? 

Unfortunately, the Gomez case will not resolve many of the other practical and legal barriers to immigration to the United States that are in place because of limited visa processing due to COVID-19. You should consult with immigration counsel and your local U.S. embassy or consulate about issues specific to your own immigrant visa processing.

Q: What is a class action?

A class action is a lawsuit in which a small group of plaintiffs can ask the court for relief on behalf of a larger group of similarly situated people. Class actions are useful when there’s a large group of impacted people (for example, the DV-2020 selectees impacted by the President’s proclamations go far beyond the six named plaintiffs in Gomez v. Trump), and it is difficult or inefficient for everyone to file their own lawsuit. As mentioned above, the district court has certified DV-2020 selectees as a class, and appointed Gomez counsel to represent the class with respect to the challenge to the legality of the immigration ban. We do not, however, represent class members with respect to their individual visa processing — including their individual efforts to obtain expedited visa processing, or to seek an exception to the immigration ban.

Q: What does it mean to be class counsel?

In class actions, the court appoints one or more attorneys to serve as “class counsel” to represent the members of the class who are not named plaintiffs in the litigation. The purpose is to make sure that the interests of class members who are not actually in court are protected at all stages of the case. In Gomez, the court appointed the attorneys at the American Immigration Lawyers Association, Justice Action Center, Innovation Law Lab, and the Law Offices of Laboni Hoq as class counsel. Our job is to advocate for and protect the interests of the class members as the case goes forward. We will not be able to advise class members on questions specific to their individual cases, such as issues unique to the status of their visa processing or efforts to seek an exception to the presidential proclamations, but if you sign up here, we will keep you posted on the latest information as it relates to classwide issues.

Q: I’m a DV-2020 selectee, but I was not a named plaintiff in one of the lawsuits against the Trump administration. Does the court’s latest ruling apply to me?

Yes. The district court’s September 30 ruling in Gomez — which ordered the State Department to reserve 9,095 diversity visas for future processing — is not limited to the named plaintiffs in any of the cases challenging the suspension of entry for DV-2020 lottery winners. You are a class member.  You do not need to take additional steps to become a class member.

Q: How do I know if I am a member of the class?

You are automatically a member of the class if you are a DV-2020 selectee who did not receive a diversity visa as of April 23, 2020 because of Proclamation 10014.

Q: Will I receive any documents or certificate from the court or attorneys confirming my membership?

No, you will not. Your membership in the class is automatic and we will not send you any confirmation of membership. You can reference proof of your membership in the court’s September 30, 2020 memorandum opinion and amended order certifying the class, a copy of which is available here.

Q: I’m a DV-2020 selectee but was not a named plaintiff in Gomez, nor any other lawsuit against the Trump administration. Do I need to join a new lawsuit to benefit from the Gomez court’s order?

No, you do not.

Q: Should I continue to contact my consulate to request that my application be processed?

While the Gomez class has now prevailed on summary judgment before the district court, Judge Mehta’s order is not yet final and the government could still appeal. If the government issues further guidance on any aspects of our case, including issuance of the 9,095 reserved DV-2020 visas, we will let the class know via email or updates to our website immediately.

Q: 9,095 additional visas does not seem to be enough to cover all the would-be cases that have been thwarted this year because of Trump’s immigration ban. Are you going to ask the court to set aside more?

We did ask the court to reserve more than 9,095 additional visas, but the judge denied our request because of the limitations placed on Department of State consular staff to process additional visas due to the COVID-19 pandemic. In his August 17 opinion, Judge Mehta again rejected the request to expand the number of reserved DV-2020 visas for processing beyond the 9,095 DV-2020 visas reserved in September 2020.

Q: How do I sign up to receive updates about the status of the Gomez case?

Please sign up here, and we will keep you posted about developments.  This sign-up form is for both DV-2020 selectees and family/employment-based visa petitioners.

Q: I’ve filled out that form on your website. Now what?

We will be in touch! As we receive important updates from the court about the status of the case, we will make sure and provide those updates to you and other members of the class. We understand that this experience has proven difficult for you and your family. We remain committed to doing everything possible to help you as soon as possible.