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Passport is not required for Diversity Visa Applicants

Court Tosses Out Trump-Era “Passport Rule” For Diversity Visa Applicants

A federal court in the District of Columbia vacated a Trump-era rule that limited applications to the Diversity Visa (DV) program. The Department of State “passport rule,” promulgated in 2019, required applicants to possess a valid passport just to enter the lottery for a chance to receive a visa to immigrate to the United States through the DV Program, effectively foreclosing the program to low-income people from countries where passports are expensive or difficult to obtain. The court held that the government did not follow public notice and comment procedures required by federal law before enacting the rule, and rejected the government’s claim that immigration regulations are exempt because they implicate “foreign affairs.”
The ruling overturns one of the most significant procedural barriers to legal migration erected by the Trump Administration. The DV program is one of the few ways that people from countries without large immigrant populations in the U.S. and who do not have U.S. family or work connections can legally obtain a visa. The program’s purpose is “to diversify the immigrant population in the United States,” which it does by allowing aspiring immigrants from around the world to enter a lottery for the chance to apply for a visa. For many aspiring immigrants, particularly those from poorer countries, passports are in limited supply and procuring one can be expensive, involve extensive delays, and may be impossible to obtain for someone who has not purchased a ticket for international travel.
After implementation of the passport requirement, applications for the DV lottery plummeted worldwide, from 14.7 million in 2018 to 6.7 million in 2019. The most dramatic impact was on African migrants aspiring to be American citizens, with applications from African countries dropping by a staggering 62 percent. Unlike some other Trump-era policies, the Biden Administration declined to withdraw the passport rule and continued to defend it in court.

The ruling came in the lawsuit E.B. v. Department of State (link to case background), which was organized by African Communities Together, an advocacy organization for immigrants from Africa. E.B. was filed by four anonymous plaintiffs: a national of Ethiopia and a national of Côte d’Ivoire and their U.S.-citizen siblings. The aspiring immigrants had previously applied to the DV program and would have continued to apply each year but for the passport rule. Plaintiffs were represented by the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University Law Center, and Friedman Kaplan Seiler & Adelman LLP.

The opinion by Judge Timothy J. Kelly sets and affirms important legal precedents for the U.S. District Court in the District of Columbia, which often hears suits challenging federal government actions. Judge Kelly rejected the government’s argument that the passport rule was exempt from notice and comment rulemaking under the “foreign affairs function exception,” concluding that the exception applies only when a rule “directly involves the conduct of foreign affairs.” The court roundly rejected the government’s defense that it was sufficient to provide an opportunity for public comment on the rule after it was already adopted, which Judge Kelly deemed “as bold as it is wrong.”

The most significant impact of the decision will be for millions of aspiring American immigrants and communities in the United States that hail from countries that have been underrepresented in U.S. migration. As a result of this ruling, applicants to the next DV lottery, which is expected to open in October 2022, will not be required to submit a passport until they know that they have won the lottery and may apply for a visa.
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