In an unusual case that will no doubt leave many Immigration and Naturalization Service as well as State Department officials stunned, a judge in the US District Court in the Eastern District of Illinois has ordered the agencies to issue a green card to an individual even though the law technically says that a visa is not available to the plaintiff. The case involved a Yugoslavian national whose wife won the DV-96 green card lottery. The wife and daughter were granted residency on time and the plaintiff filed an application to “follow to join” as a green card holder shortly after the approval of his wife’s green card. The processing on the husband’s case needed to be completed by September 30th of 1996. The INS approved the case on July 17, 1996 and granted the plaintiff temporary evidence of his permanent residency.

When the plaintiff did not get his green card within six months, he diligently followed up with INS. He then learned that the State Department, due to a bureaucratic error, had failed to send the reserved visa number to the INS. By the time the error came to light, the September 30th deadline to issue the visa had already passed and the INS took the position that it could not force the State Department to issue a visa number. And without a visa number, a green card cannot be issued. The INS defended itself in the suit by claiming that the plaintiff no longer had a clear right to the visa and the INS no longer has a duty to issue the visa.

The Immigration Judge in the lower court had ordered that what needed to be done for thee issuance of the green card be done. The District Court agreed and has ordered the INS to comply of the lower court order by completing all remaining processing of the plaintiff’s adjustment of status, including issuing a resident alien card.