Diversity Visa Lottery Re-run: Was This the End?

Diversity Visa Lottery Re-run: Was This the End?

By Molly J. Liskow, J.D., Legal Editor, Practice Area Content (Immigration) 

The State Department "botched" the 2012 Diversity Visa Lottery. That was the term used by a federal judge who allowed the Department to re-do the selection process, despite a lawsuit by many very upset applicants who had thought they'd won the chance to apply for a green card -  a way of saying legal permanent residence, a/k/a immigrant status, in the United States. 

For the millions of people who did not follow what happened this year, let's review. Every year, the State Department has a "lottery" in which millions of people apply for the chance to apply for a green card. The process is done over the Web, and the window for applying is short, just over a month in 2010. This time (for fiscal year 2012), 19 million people applied. The State Department chose about 100,000 people from that pool. They could then apply for permission to enter the United States, if they were not here, or permission to adjust their status from some other status to that of immigrant, if they were in the United States. Because people may not act in time or may be ineligible, the Department notifies twice as many people as there are slots. Immigration and Nationality Act (INA) § 203, 8 U.S.C. §1153, limits DV visas to 50,000. In addition, the visas are available only until the end of the fiscal year - that is, September 30, 2012. So the applicants have to move promptly. 

To get down to 100,000, the Department takes all the applications, throws out duplicates and those that did not comply with the instructions, then by computer randomly selects the winners. That was the problem this year. As District Judge Amy Berman Jackson explained in Smirnov v. Clinton, 2011 U.S. Dist. LEXIS 76093 (D.D.C. July 14, 2011), the computer program did not mix up the order of the applications. So when the "choosing" part of the process occurred, almost all of the winners were from the first two days of the application period even though the Department had assured potential applicants that it would not hurt them if they did not apply at the start of the period. 

Keep in mind that the purpose of the "Diversity Visa" is to bring in people from countries that do not have large numbers of people coming to the United States in the employment-based and family-based programs. People from the countries that do have the most people in those programs are ineligible (with some technical exceptions) for the DV Lottery. So the countries whose citizens "win" the DV Lottery generally are poorer and have less Internet access than, say, Germany or Great Britain. And for the last several years, the only way to apply has been by Internet. 

The Department investigated and found the problem. (Judge Jackson goes into more detail than I'll bore you with.) It said that it would re-do the lottery. And some very unhappy people sued to try to stop the do-over. 

They lost. On July 14, the judge announced her decision. She was sympathetic to the people who had acted on what they had thought were real chances to come to the United States, but she also said that the millions of "losers" often had just as sympathetic stories as to why they should be allowed to come. More to the point, she went through the statute (INA §§201, 203, 204, 8 U.S.C. §§1151, 1153, 1154) and regulation (22 C.F.R. §42.33). She decided that, "since the original lottery did not comply with the statutory and regulatory requirements, [the court] cannot order the Department to process the original winners' applications." She added that "the Department's decision to conduct a second lottery in compliance with law was neither arbitrary nor capricious, and [] it was based on a reasonable interpretation of the statute and the agency regulations. Therefore, the second lottery may proceed as planned." 

Round Two took place on June 15, and the results were announced. Now those winners need to complete the process of getting to the Untied States by the end of Fiscal Year 2012. Naturally, the people who won the first time and lost the second were unhappy, to say the least. 

Even more significantly for the long run, the problem this time supports efforts to end the Diversity Visa Lottery. Even before the announcement of the mistake, bills had been introduced in Congress to end it. (E.g., S. 332, H.R. 43, and H.R. 704 just this year.) The Chairman of the House of Representatives' subcommittee on immigration is proceeding on one of those bills this week. The sponsor says "that the lottery is also ripe for abuse by terrorists and foreign spies." Matt O'Brien, Contra Costa Times, Wining, and losing, the green card lottery, San Jose Mercury News, July 12, 2011 (available on lexis.com > 3News & Business > Mega News, Major Newspapers, search "diversity and visa" and date after July 11, 2011). 

So, stay tuned. Immigration law remains very active and interesting.


For more on the DV Lottery's history, rules, and process, see Charles Gordon, Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure §§ 40.01 to 40.04. 

The State Department has information at http://travel.state.gov/visa/immigrants/types/types_1322.html

The rules for the 2012 DV Lottery were published at, among other places, 75 Fed. Reg. 60846 (notice Oct. 1, 2010). 

The decision in the lawsuit is at Smirnov v. Clinton, 2011 U.S. Dist. LEXIS 76093 (D.D.C. July 14, 2011).

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  • 07-31-2011

22000 ex dv 2012 winner found looser in 2 nd redraw its a tragedy/join our faceboook page /us green card lottrey dv-2012 can't be ignored

  • 07-31-2011

i m one of this Hapless poeple this is realy unjust we are now with out hope they act with not like humain been they Manipulate our feelings please we need help

  • 02-02-2012

Don't loose your hope, Take part in next year dv lottery program and be the luckiest winner of diversity lottery visa.

Walter Shannon
  • 02-09-2018

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