The Diversity Visa Lottery Program:
A Genuine Attempt to Diversify The Immigrant Pool or
A Security Trap for Visa Violators?
Lessons Learned From DV 2002
"I wish I had never won the lottery." - Maryam, an Iranian national
On September 30, 2002, the 2002 Diversity Visa Program ended with hundreds of eligible "winners" unable to obtain diversity visas due to delays caused by the post-9/11 era of consular security check procedures. The USA PATRIOT Act of October 2001 and the Enhanced Border Security and Visa Entry Reform Act of 2002 ("Border Security Act") intensified security measures for nationals of the seven states designated as sponsors of state terrorism and approximately twenty-six predominantly Muslim countries, to be expanded to thirty-three countries. Nationals from all of these countries, except Pakistan, are eligible to participate in the diversity visa program as the Secretary of State has determined that they are under-represented in the immigrant pool.
Diversity visas are allocated based on rank selection numbers allocated to the six regional areas. During the last fiscal year, all regions became current by September 2002 and final interviews were only scheduled during the final month for many "winning" candidates. Unfortunately, many diversity visa winners from the countries designated for heightened security checks were informed that they could not be issued the diversity immigrant visa without first undergoing security clearances, many of which have been taking up to four months. While security clearances for citizens, nationals or persons born in these predominantly Muslim countries were supposed to take approximately twenty-four days, the new rules provide that no visas may be issued until the clearance is issued, regardless of the delay. Furthermore, many applicants were subject to the new "Visa Condor" check if their name, citizenship, gender and age matched one of the millions of names in the FBI's National Crime Information Center (NCIC) database. Since many males aged 14 to 45 years are required to undergo these security checks, the process has caused many families to splinter. For example, the wife, who is the primary applicant, receives her diversity visa, but is unable to immigrate with her husband because his application is continued for Condor clearances. As a result, many male derivative spouses were unable to receive the diversity visas before the program ended on September 30, 2002. Now they will have to wait over five years before they are reunited with their spouses based on second preference family-based immigrant petitions.
A diversity visa applicant who was born in or is a citizen of Iran, Iraq, Libya, Syria, Cuba, Sudan or North Korea, the states designated as sponsors of state terrorism, is prohibited from receiving a visa by Section 306 of the Border Security Act until the Secretary of State, in consultation with the Attorney General and other relevant agencies, has determined that the applicant "poses no safety or security threat to the United States." Although the Department of State has indicated that it is likely to get these times drastically reduced to within a month, many of the these clearances have been taking up to four months. It appears that applicants who applied to adjust status in the United States were not subjected to these delays.
Accordingly, legal counsel has become critical to processing diversity visa cases, especially as the DV adjustment applicants may not have any unauthorized employment or fail to maintain lawful status for even one day unless they can derive Section 245(i) protection from another source. Furthermore, even the ameliorative provisions of Section 245(k) of the Immigration and Nationality Act (which allows only employment-based immigrants who have been out of status or who have engaged in unauthorized employment for less than six months to adjust status in the United States) do not apply to DV applicants. DV applicants may still be able to adjust pursuant to INA §245(i), if they have pre-April 30, 2001 priority dates for immigrant petitions filed with the Attorney General or labor certification applications filed with the Department of Labor.
Many "winners" who lost the race will now experience difficulty obtaining student and visitor nonimmigrant visas and may not even be able to enter the United States. Having made advanced efforts to become a permanent resident, they have expressed clear immigrant intent and may not be able overcome INA §214(b), which requires unrelinquished domicile abroad. For example, a former F-1 student from Iran who chose to consular process in Abu Dhabi, may now be unable to obtain a F-1 student visa to return the United States to resume her course of studies. This same problem arises for applicants who were unable to adjust status before September 30, 2002. Such individuals are placed in removal proceedings if they failed to maintain underlying lawful nonimmigrant status.
Will the DV Program Become a Trap for Out of Status Applicants?
Diversity visa participants should be aware that the Department of State no longer shreds unused and/or unselected diversity lottery applications. On September 12, 2002, Representative George Gekas, Chairman of the House Judiciary Committee's Subcommittee on Immigration, Border Security and Claims announced that upon his suggestion, the ten to thirteen million diversity visa applications will be shared with U.S. law enforcement and intelligence agencies. The diversity visa program which had once given hope to vast hordes of wishful immigrants both in the United States and abroad, may now become a security trap. Having the name, date and country of birth and address of the ten to thirteen million applicants would hardly appear useful to intelligence agencies but may be useful to an agency searching for current addresses of the several hundred thousand people ordered removed or who have overstayed their visas. After fifteen years of visa lotteries, the present government's attitude towards immigrants has made it necessary to recommend caution to persons entering the diversity visa lottery who may be out of status or otherwise removable.
The Child Status Protection Act: A Positive Measure for Diversity Visa Program
On August 6, 2002, President Bush signed into law The Child Status Protection Act of 2002 (CSPA). The Act is effective from the date of its enactment and provides relief to derivative beneficiaries of diversity lottery visa applications who lose their eligibility for such immigration benefit when they turn 21 years of age (i.e., they "aged-out").
To calculate whether an aged-out derivative beneficiary can benefit from CSPA, the Department of State will use the period between the first day of the Diversity Visa mail-in application period for the program year in which the principal applicant qualified and the date of the congratulatory letter notifying the applicant that he or she has been selected as the "petition is pending" period. This period will then be subtracted from the derivative beneficiary's age on the date the diversity visa becomes available to the principal applicant.
The provision is best understood with an example. A principal applicant is selected for the DV-2003 program for which the first date for mailing the application was October 1, 2001. The principal applicant receives a congratulatory letter dated May 30, 2002, notifying her that she has been selected. Accordingly, the diversity visa petition has been pending for 242 days. The principal applicant has a high lottery number and is finally able to proceed with her immigrant petition and receive a diversity visa on September 1, 2003. She has a daughter and a son. The daughter turned twenty-one on October 1, 2002, and the son turned twenty-one on July 1, 2003. The daughter cannot benefit from CSPA, because she has been twenty-one for more than 242 days. In contrast, the son can benefit, because he has been twenty-one for less than 242 days.
Is The Diversity Visa Lottery Application Really That Easy?
The Department of State, wary of fraud from people submitting multiple applications with minor spelling variations in names, demands strict compliance and disqualifies millions of applicants for minor technicalities. The "harmless error" rule does not apply in the DV program and "winners" are being disqualified in droves because their birth certificate might have slight variations from the name used on the application. For example, this year several winners were disqualified because a child's name was misspelled on the DV application, or the name Mohammad was spelled with two letter m's instead of one. Each year, the Department of State tries to clarify the deceptively simple instructions but at times creates more confusion. One example is the signature requirement. The DV-2004 instructs the applicant to personally sign the application in his native alphabet as it would appear on his passport or other official or contractual obligations. However, the regulations state that the signature should not be initials. AILA noted the contradiction during a recent liaison meeting with the Department of State and was advised to follow the regulations. It is unlikely that unrepresented DV applicants would be able to access the regulations and therefore may be disqualified for strictly following the Department of State instructions.
The 50,000 annual diversity visas offer hope to many forlorn nonimmigrants who have no other way of obtaining immigrant visas and it promotes the United States amongst the ten to fourteen million aspiring immigrants with dreams of a new life in America. In many countries, lottery creates a fever pitch hysteria which makes even the $100 million Powerball Loto look tame. Unfortunately, with at least 100,000 "winners" competing for 50,000 slots, turning a winning ticket into an actual green card requires more than just common sense or even following the instructions.
About The Author
Bernard P. Wolfsdorf practices exclusively in the area of immigration and nationality law in Los Angeles. He is a California state bar-certified specialist in immigration and nationality law and is listed in Martindale Hubbell's Pre-eminent Specialist Directory, and in the International Who's Who of Corporate Immigration Lawyers. He currently serves on AILA's Board of Governors and on the AILA INS Enforcement Committee. He has previously served on several AILA liaison committees, including the AILA/CSC Liaison Committee and the State Department Liaison Committee. With offices in New York, Torrance and Pacific Palisades, the firm assists applicants with consular visa interviews. Mr. Wolfsdorf is a frequent lecturer on consular processing and can be contacted at Bernard@wolfsdorf.com.
Naveen Rahman graduated cum laude from the University of Pennsylvania with a Bachelors of Arts in International Relations; and magna cum laude from New York Law School with a Juris Doctorate. She was admitted to the California bar in 1999. She practices exclusively in the area of Immigration and Nationality Law. Ms. Rahman is a member of the Los Angeles County Bar Association. Ms. Rahman can be contact at email@example.com or 1(800)-visa-law.
For an in-depth study of the Diversity Visa program, see Bernard P. Wolfsdorf, & Naveen Rahman, "The Diversity Lottery - Asians And Latinos Need Not Apply!", 00-9 Immigration Briefings (September 2000). available on www.wolfsdorf.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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