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Reform The Troubled Diversity Visa Lottery
by George Carenbauer

This week marks the start of the annual month long Diversity Visa Immigration Lottery, and applications must be received in Kentucky by midday, Wednesday, November 6. Almost unknown in the U.S., the lottery accounts for about 7 percent of all legal immigration, with applicants vying for 50,000 green cards for permanent residence in the U.S. It's the brass ring of immigration, because lucky winners can receive green cards not just for themselves, but for their family as well.

In terms of sheer participation, it may be the biggest immigration program of all. Its scope is enormous, with 8.7 million applications received in 2001 and 13 million in 2000. Because each application must contain personal information and a separate photo of the applicant as well as the applicant's spouse and children under age 21, each year's lottery represents the aspirations of 25 to 40 million people worldwide.

The program has its critics. The anti-immigration lobby would do away with it in a heartbeat. Some pro-immigration advocates would rather see an increase in family and employment-based immigration. But in many ways it's the last vestige of America's longstanding promise. Without it, immigration would be virtually closed to people in most nations of the world, and there would be only limited hope for people without special skills or wealth.

Yet the administration of the program has a lot of problems. Years of neglect by the State Department, Congress and the immigration bar have taken their toll. The result is a system that is unfair to applicants, deaf to interests of national security and threatening to postal workers.

Unfair to Applicants - A Dismal Failure Rate

Thirty percent of entries are rejected out of hand for some shortcoming and never actually considered in the lottery, but the mistaken applicants are never told. Only the 50,000 yearly winners are notified even that their applications were received, and the remaining applicants have no way of knowing whether they did something wrong, their application wasn't received or they just didn't win the lottery. So each year, some applicants continue to make the same mistakes in submitting their applications. Yet the Department actually discourages applicants from seeking help, maintaining that it's easy to apply on your own by just following 16 simple pages of instructions.

Rules require an application to be received at the Kentucky post office during the open period, and the most common reason for rejection is that the entry arrived there either too early or too late. It's one thing for a person in London to send an application to Kentucky with a reasonable assurance it will make it there in a week or so. But for an applicant in Lagos or Dhaka, there may be little assurance it will ever arrive.

And the Department does little or nothing to help matters. Two years ago, for example, the mailing address for applications was changed from New Hampshire to Kentucky. It would have been simple enough for the Department to have forwarded any applications sent to New Hampshire to the new address. Instead the Department just destroyed them. The applicants weren't even given the courtesy of a "Return to Sender" notice. The result is that the hopes and dreams of about a million people were dashed in the snows of New Hampshire.

The State Department's advice to applicants to file on their own -- despite a failure rate of thirty percent -- stems from its stated concern about unscrupulous "submission service firms" who can take advantage of unknowing applicants. There's reason to be concerned. The Internet is replete with firms who suggest they are the government and never tell an applicant that entry is free. They are a clever lot, these firms. One based in Germany overstates the rejection rate and entices applicants to enter a side lottery by paying an additional $100 on the chance of receiving up to $1500 in airfare to America if the applicant wins. Another has gone so far as to set up its own set of six zip codes to parrot the State Department's official practice. Another entrepreneur has put his services up on ebay, offering the "last auction" and "last chance" to apply to the lottery.

More disturbing is that the State Department knows of these firms and seems to do nothing about them. One popular site, that pops up on the Google search engine as the "Official U.S." immigration service, until recently billed itself by the name of an actual government agency. It is apparently run by a former State Department employee and former Ambassador, well known to the Department's current employees. Instead of simply discouraging applicants from seeking any help at all, the State Department should clamp down on the bad guys.

The Cheater's Advantage

The rule is simple. An applicant can enter the lottery only once. But with the Department's antiquated paper processing, an apt slogan might be: Play the Rule, Play the Fool.

The Department estimates it receives at least 800,000 duplicate entries a year. By requiring applications to be submitted only on paper, it is impossible for the Department to double check against multiple entries. Indeed, until last month the Department had a policy of shredding all but the winning applications, but even with that practice halted, searching by hand through tens of millions of documents is simply not feasible.

The result is that cheaters win and the Department knows it. By chance a lawyer in Brooklyn last year was found to have entered people in the lottery multiple times for a fee. Twenty-nine of his clients, it was learned, had won.

Just last week, a North Carolina man was indicted for fraud for completing 20 applications to last year's lottery for himself, his wife and brother, using variations of the spelling of names and dates of birth. The FBI agent involved said it could be impossible to prove the case against the man, since all but winning applications are destroyed. (Conversely, with the records destroyed, it might be impossible for the defendant to prove he never actually entered.)

What kind of message are we sending to applicants who play by the rules when we can't determine who's cheating?


The Department also says there's a problem of "impostors" - where someone enters the lottery for someone else by forging the signature. This can happen, for example, when Uncle Mike in Boston signs an application for his nephew Jack back in Dublin.

So the Department keeps trying to refine the rules by clamping down on signatures. Determining a forgery is more an art than a science, and the Department's efforts can cut both ways. Clever "impostors" gain permanent residence, while others may be wrongly accused of forgery. A few years ago, winners in Russia who were accused of forging signatures, banded together and hired a lawyer to fight the Department.

Ignores National Security

The lottery would seem an unlikely -- and highly inefficient -- way for terrorists to enter the United States. So keeping records of who has applied would seem at first blush to make little difference to national security.

But remember -- the lottery is a source of information not only about the applicant, but also about the applicant's family. The murder of two persons at the El Al ticket counter at Los Angeles Airport on July 4 of this year shows that the information and photos contained in the applications can be useful to law enforcement. The State Department had received a photo and personal information on Mohamed Hadayet, the man who committed the murders at LAX, when his wife entered (and won) the lottery a few years ago. If she had not won, the Department would have received - and shredded -- information and a photo of the murderer and never been the wiser.

The North Carolina arrest last week might be another instance where the lottery could be helpful to national security. Anonymous sources reportedly say the man indicted in North Carolina for submitting multiple entries to the lottery was a pilot connected with El Queda. If the accusation proves to be true, it would undercut the argument that terrorists themselves would never use the lottery as a way to gain permanent residence here.

Because of national security concerns, the State Department last month halted its practice of shredding applications and has asked intelligence and law enforcement agencies if it might be useful to keep them. However, as long as applications are submitted in paper form, it's hard to imagine they could be accessed in efforts to protect us against terrorists or common criminals.

Anthrax Threat

Last year's open lottery period ran from October 1 through October 31st. Applicants were instructed to send their paperwork through the regular mail to the fictional town of Migrate, Kentucky. In reality this is simply a mail drop section located within a large post office in that state. On October 4th, the world received the first reports of anthrax in the mail. For the rest of the month reports of mysterious deaths, post office closings and the evacuation of Congressional and news organization offices dominated the headlines.

Put yourself in the place of a worker in the Kentucky post office receiving visa lottery applications then -- just a few weeks after the events of September 11th. Add to this the fact that about half of all applications are from residents of Islamic countries. We all remember being told at the time to beware of strange packages, especially those from overseas. But for those Kentucky postal workers, all the packages were strange -- all 8.7 million of them. The government ultimately resolved their concerns by decontaminating the entries, at a cost to taxpayers that's still not known.

Mend It Don't End It

It might be easy to throw up our hands and say we ought to just go ahead and abandon the Diversity Visa lottery, considering how unfairly it's being administered. But that would be a disaster.

Throughout most of the world the lottery is a big deal - a very big deal - even in countries with which we have differences. In late August of 2001, the Jakarta Post reported there were long lines around the U.S. embassy in Indonesia of people seeking information about the lottery. A few weeks later, after the events of September 11th and the invasion of Afghanistan, the embassy closed because of anti-American demonstrations. This occurred in the capital of the world's biggest Islamic country. Did the people lose interest in the lottery? No, submitting timely applications was just harder for them.

And in poverty-stricken Bangladesh, the lottery is big business for the country's post office as well as its people. Hundreds of extra postal workers are hired to process lottery applications. Over two million applications -- representing the interests of more than 5 million people -- are submitted from that country alone.

The way the lottery is administered today does not provide a level playing field. But the program itself is sound; it shows the world our openness and compassion; and it deserves to be reformed.

About The Author

George Carenbauer is a member of the law firm of Steptoe & Johnson, PLLC. He is former legal counsel to Senators Robert C. Byrd, George J. Mitchell and Jay Rockefeller (when Governor). The firm operates a web site to assist applicants to the Diversity Visa lottery at

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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