State Department Issues Rules For 2004 Diversity Visa Lottery
The State Department today issued rules on the diversity visa lottery for 2004. For this week’s version of our newsletter, we will be providing questions and answers of the lottery. These will also be available on our green card lottery website at www.visalaw.com/lottery_page.html.
QUESTIONS AND ANSWERS ABOUT THE DV-2004 GREEN CARD LOTTERY
The DV lottery is designed to increase the diversity of the overall pool of immigrants coming to the US. Countries that are proportionately over-represented in the immigrant population are excluded. Countries that have sent more than 50,000 immigrants to the US in the past five years are put on to the list above.
How are visas allotted?
The DV-2004 program apportions visa issuance among six geographic regions (Africa, Asia, Europe, North America (other than Mexico), Oceania, and South America (including Mexico, Central America and the Caribbean). The world is divided up into high and low admission regions and each of the six regions is divided into high and low admission states. A greater portion of the visas go to the low admission regions than to high admissions regions. High admission states are entirely excluded from the lottery (those states are listed above) and low admission states compete equally with other low admission states in the same region. No single state may receive more than 7% (3,500) of the 50,000 allotted visas.
Who is eligible to apply for the lottery?
To receive a DV-2004 visa, an individual must be a native of a low admission foreign state (described above). The individual must have at least a high school education or its equivalent, or, within the preceding five years, two years work experience in an occupation requiring at least two years training or experience.
What does it mean to have a "high school education or its equivalent?"
"High School education or its equivalent" means the successful completion of a twelve year course of elementary and secondary education in the U.S. or successful completion in another county of a formal course of elementary and secondary education comparable to complete a 12 year education in the U.S. or successful completion in another country of a formal cause of elementary and secondary education comparable to completion of a 12 year education in the U.S. Passage of a high school equivalency examination is not sufficient. It is permissible to have completed one's education in less than 12 years or more than 12 years if the course of study completed is equivalent to a U.S. high school education. Documentary proof of education (including a diploma or school transcript) should NOT be submitted with the application, but must be presented to the consular office at the time of formally applying for an immigrant visa application.
What does it mean to have "two years work experience in an occupation requiring at least two years training or experience?"
The determination of which occupations require at least two years of training or experience shall be based upon the Department of Labor's O*Net Online database. Previously, when work experience was used as the equivalent of high school graduation, the employment position was compared to those in the US Department of Labor Dictionary of Occupational Titles. The Labor Department has phased out this publication and replaced it with the O*Net online system. To reflect this change, the State Department will begin using O*Net classifications in determining whether an applicant has the equivalent of a high school education. The O*Net system is available online at http://online.onetcenter.org. As with proof of education, documentary proof of work experience should not be submitted with the application, but must be presented to the consular office at the time of a formal immigrant visa application.
Can I be a "native" of a country other than the country in which I was born?
A native is both someone born within one of qualifying countries and someone entitled to the "charged" to such country under Section 202(b) of the Immigration and Nationality Act. Thus someone may be (1) charged to the country of birth of his/her spouse, but only if the spouse is also issued a visa and enters the US at the same time as the primary applicant; (2) a minor dependent child can be charged to the country of birth of a parent; and (3) an applicant born in a country of which neither parent was a native may be charged to the country of birth of either parent. If one claims to be a native of a country other than where one was born, he/she must include a statement to that effect on the lottery application and must show the country of chargeability on the application envelope (see discussion of the application form and envelope).
Will applying for the lottery affect one's ability to receive a nonimmigrant visa?
Probably not. Technically, filing a visa lottery application is equivalent to filing an immigrant petition. According to a source at the Department of State, a consulate will only be notified IF the person is selected in the lottery. An individual who is not chosen is on his honor to state that he/she applied for the lottery. Theoretically, if your name is selected in the lottery, you may have trouble renewing nonimmigrant status while waiting for your name to be cleared for processing (see discussion on the post-selection process for securing a green card). This should only be a temporary problem since permanent residency should eventually be awarded. There is still a risk that you will fail to be deemed eligible for the DV-2004 visa or the Department of State will have overestimated the number of individuals to select in the lottery (see discussion on how the selection process works). However, of all the lawyers with whom I have spoken, none have ever reported a problem with a client having entered the lottery. We have instructed our clients to answer the question on the DS-156 concerning previous immigrant visa applications as follows: "My lawyer entered me in the DV-2004 lottery." We have never had a problem reported and I have yet to hear of anyone denied a visa because of a previous lottery application.
Do I need to be in lawful visa status to compete?
An individual who is in the U.S. need NOT be in lawful status to compete in the lottery. However, the Department of State has indicated that it will share information with the Immigration and Naturalization Service for the "formulation, amendment, administration and enforcement" of the country's immigration laws. Furthermore, a person out of status may be subject to the three and ten year bars on admission of the 1996 immigration law and unable to take advantage of winning the lottery. However, we believe that if someone has a pending visa application approved before April 30, 2001 (for example, an I-130 approved but where priority dates are not current), the person may be able to process a lottery selection in the United States. Because the laws on this subject are highly complex, it is recommended that out of status persons contact an immigration lawyer to determine their status and an appropriate strategy.
Does it matter whether I am or am not in the U.S.?
Individuals who otherwise meet the requirements for competition in the lottery, may compete whether they are in the United States or in a foreign country.
Are there any limitations on the number of entries I can send in for the lottery?
Each individual is limited to one application in the lottery. If more than one application is received, the individual will be totally disqualified. Note: Hundreds of thousands of applications are rejected every year due to multiple applications. It is not a problem if you have submitted an application during a PREVIOUS lottery registration.
May a husband and wife each submit a separate application?
Yes. If otherwise qualified, a husband and a wife may each submit one lottery application. If either is selected in the lottery, the other would be entitled to derivative status.
If I win, can I get green cards for my family?
Your spouse and unmarried children under the age of 21 (at the time the green card - not the lottery application - is approved) are automatically entitled to the same status as you. Under the new Child Status Protection Act, children of lottery-based green card applicants, the age of the child minus the adjudication time of the lottery-based immigrant petition at the time a visa number becomes available for the parent is the age used for determining whether the child is eligible for the green card as an under 21 year old child. But to take advantage of this, the child actually must seek to acquire the green card within a year of the visa becoming available. Also, in the case of a child who turns 21 while a lottery-based green card application is pending who is not eligible to claim to be under 21 for purposes of seeking a green card, may still retain the original date issued upon receipt of the original petition and it is not necessary to file a new application because the case will automatically convert to the appropriate category.
Is there a minimum age to apply for the lottery?
There is not a minimum age to apply for the lottery. However, the education/work experience requirements will effectively preclude most people under 18 from applying.
May I adjust status in the U.S. if I am selected?
An applicant may adjust status (switch to permanent residency in the U.S.) if they meet the normal requirements for adjusting status with the INS (including not having previously been out of visa status). In order to apply for adjustment of status, the INS must be able to complete action on the case before September 30, 2004.
How does the selection process work?
The State Department's Kentucky Consular Center will receive all applications. Upon receipt, the KCC will place the letter into one of six geographic regions and assign the letter an individual number. Within each region, the first letter randomly selected will be the first person registered, the second letter selected will be the second person registered, etc. When a case is registered, the applicant will immediately be sent a notification letter that will give visa application instructions.
About 90,000 persons, both principal applicants and their spouses and children, will be registered. Since it is probable that some of the first 50,000 persons registered will not apply for a DV-2004 visa, this figure is assumed to be large enough to ensure that all of the visas are used. However, there is a risk that some applicants will be left out. Indeed, this has been a problem for people drawn late in the selection process. According to the Department of State, all applicants will be informed promptly of their place on the list. Each month visas will be issued, according to registration lottery rank order, to those ready for visa issuance for that month. Once 50,000 visas are issued, the program ends. Registrants for the DV-2004 lottery will have to have their visa in hand by September 30, 2004 at the latest. You must be prepared to act promptly if your name is selected.
How will I know if I was selected or not selected?
The State Department will notify winners by mail between May 2003 and July 2003. The State Department will not notify applicants to let them know they were not selected. The only way you will know that you are not selected is if you have not received a registration notification letter before the date the INS officially states that it has stopped notifying people (i.e. if you have not heard by August 2003, assume you were not selected).
Is there an application fee to enter the lottery?
No. There is no government application fee for submitting a lottery application. If you win the lottery, you will pay a special DV-2004 case processing fee later. Winners will also have to pay regular visa fees at the time of visa issuance. Certain law firms and immigration consultants offer application services and the fees for such services may vary. IT IS NOT NECESSARY TO USE SUCH A SERVICE. However, one may want to use a reputable service if they wish to have a US return address, want the application mailed from a US address, want someone to review your application if your English skills are weak, or otherwise do not have the time to submit the application on their own.
Can someone selected in the lottery receive a waiver of any of the grounds of visa ineligibility?
No. There is no special provision for the waiver of any grounds of visa ineligibility other than those provided for in the Immigration and Nationality Act. Also, holders of J 1 visas with a two year home residency requirement will not be able to receive a waiver of this requirement by virtue of being selected in the lottery. A holder of a J visa can still enter the lottery, but he/she will have to qualify for a residency waiver in the same manner as is normally required to get such a waiver. Because all visas must be issued by the end of September 2004, individuals who have not yet begun their home residency are effectively precluded (unless they are able to get a waiver of the home residency requirement quickly).
May someone apply for a DV-2004 visa if they are already registered in another visa category?
Do I need to send photographs of each family member and have each sign the application or just the principal applicant?
Recent photographs of the applicant and his/her spouse and each child, including all natural children as well as all legally-adopted and stepchildren, excepting a child who is already a U.S. citizen or a Legal Permanent Resident, even if a child no longer resides with the applicant, must be attached to the entry. The name and date of birth of each family member must be printed on the back of their photo. Group or family photos will not be accepted; there must be a separate photo for each family member. Photos should be attached with tape and not stapled to the entry. If there is insufficient room on the front of the entry, applicants may tape photos to the back of the page.
The signature of the principal applicant is all that should be included in the application. Remember, however, that a husband and wife can each submit their own applications as the principal applicant.
What if someone else signs my application or if I send it in unsigned?
The State Department is quite strict on the requirement that the applicant sign his or her own application. It is not sufficient to have a family member or friend sign the application on behalf of the applicant. A number of DV winners have been sadly disappointed when they found out there immigration applications were later rejected on this ground. Also, if you fail to sign your application, you will not even get as far as being selected since your application will not even be entered into the computer.
In what region is my native country assigned?
There is no form for the DV-2004 lottery. All that is required is that the proper information is typed or clearly printed in the Roman alphabet on a plain sheet of paper, the application is signed by the applicant, a proper photograph is included and the application is sent in a properly addressed envelope via regular mail.
Each application must contain the following information and documents:
1. APPLICANT'S FULL NAME
Last Name, First Name and Middle Name2. APPLICANT'S DATE AND PLACE OF BIRTH
Date of Birth: Day, Month, Year3. NAME, DATE AND PLACE OF BIRTH OF APPLICANT'S SPOUSE AND CHILDREN
[Note: Do not list parents as they are not entitled to derivative status.]
4. APPLICANT'S MAILING ADDRESS
Be sure the address is complete since this is where notification will be sent if the
application is selected. You may also provide a telephone number, but this is optional.
5. APPLICANT'S NATIVE COUNTRY IF DIFFERENT FROM COUNTRY OF BIRTH
6. The Applicant's signature is required on the application (preferably the bottom).
7. Recent photographs of the applicant and his/her spouse and each child, including
all natural children as well as all legally-adopted and stepchildren, excepting a child who
is already a U.S. citizen or a Legal Permanent Resident, even if a child no longer resides
with the applicant, must be attached to the entry. The name and date of birth of each family
member must be printed on the back of their photo. Group or family photos will not be accepted;
there must be a separate photo for each family member. Photos should be attached with tape
and not stapled to the entry. If there is insufficient room on the front of the entry, applicants
may tape photos to the back of the page.
The application should be placed in an envelope which is between 6 inches and 10 inches
(15 cm to 25 cm) in length and between 3 1/2 inches and 4 1/2 inches (9 cm to 11 cm) in width.
In the upper left hand corner of the front of the envelope must be the country of which the applicant is a native. Typed or clearly printed below the country must be the same name and mailing address of the applicant as are shown on the application form.
James John Doe
1111 Main Street
Nashville, Tennessee 37204
Where do I send the application?
Applications must be sent by regular mail (not by hand delivery, telegram, or any means requiring acknowledgment such as registered mail or express mail) to one of the six following addresses, depending upon the region of the applicant's native country.
Note carefully the importance of using the correct postal zip code for each region:
AFRICA: DV-2004 Program, Kentucky Consular Center, 1001 Visa Crest, Migrate, KY 41901-1000, USA
ASIA: DV-2004 Program, Kentucky Consular Center, 2002 Visa Crest, Migrate, KY 41902-2000, U.S.A.
EUROPE: DV-2004 Program, Kentucky Consular Center, 3003 Visa Crest, Migrate, KY 41903-3000, U.S.A.
SOUTH AMERICA: DV-2004 Program, Kentucky Consular Center, 4004 Visa Crest, Migrate, KY 41904-4000, U.S.A.
OCEANIA: DV-2004 Program, Kentucky Consular Center, 5005 Visa Crest, Migrate, KY 41905-5000, U.S.A.
NORTH AMERICA: DV-2004 Program, Kentucky Consular Center, 6006 Visa Crest, Migrate, KY 41906-6000, U.S.A.
[Editor's Note: Corrected 10/10/2002].
DISCLAIMER: This file is not intended to create an attorney client relationship. The information contained in this file is not intended to be legal advice. Any reliance on this information is taken at your own risk.
About The Authors
Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at email@example.com
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.