Friedman Kaplan Helps Overturn Problematic “Passport Rule” for Diversity Visa Applicants
Friedman Kaplan, along with the Institute for Constitutional Advocacy and Protection (“ICAP”) at Georgetown University Law Center, obtained a major pro bono victory affecting millions of people around the world when the U.S. District Court for the District of Columbia vacated a rule implemented by the Trump Administration that significantly hampered the Diversity Immigrant Visa program. The program makes up to 50,000 immigrant visas available through a lottery process each year to individuals from countries with low rates of immigration to the United States and 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 rule imposed by the Trump Administration required applicants to have a valid passport at the time of application, which effectively foreclosed the program to low-income people from countries where passports are expensive or difficult to obtain. Indeed, following implementation of the so-called “passport rule,” applications for the diversity visa lottery dropped from 14.7 million in 2018 to 6.7 million in 2019 with the most dramatic impacts on aspiring migrants from Africa.
Work on the case began shortly after the U.S. Department of State issued the passport rule in 2019. Friedman Kaplan and ICAP joined African Communities Together, an advocacy organization for immigrants from Africa, in challenging the passport rule on behalf of plaintiffs from Ethiopia and Cote d’Ivoire and their American families on the basis that the rule was passed as an interim final rule without the notice and comment period required by the Administrative Procedures Act. In October 2019, Judge Timothy J. Kelly denied the plaintiffs’ motion for a preliminary injunction, but agreed that they had standing to bring their claims.
On February 4, Judge Timothy J. Kelly granted our motion for summary judgment and rejected the government’s argument that the passport rule is exempt from notice and comment, and struck down the passport rule requirement. As a result of this ruling, applicants to the next diversity visa lottery later this year will not be required to submit a passport simply to enter the lottery; a passport will only be required at the final stage, for those who win the lottery and are submitting a full application for an immigrant visa, at which point obtaining a passport is far less burdensome and costly.
The Friedman Kaplan team included associate Anil K. Vassanji and partner Philippe Adler. “The requirement under federal law that the public should have notice of, and be permitted to comment on, the development of any final rule allows affected communities to raise concerns,” said Mr. Vassanji, who argued the preliminary injunction. “The passport rule sidestepped that obligation and, as we have seen, the effect on our immigrant communities was immense. The court’s thoughtful and thorough ruling underscores the importance of the notice and comment requirement, and why exceptions to that rule should be narrowly construed. Friedman Kaplan is proud to have worked on this important matter with its community partners.”
The victory has been covered by the press, including by Law360 and Bloomberg Law. A recording of a press conference about the decision can be viewed here.