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DV 2005 - The Diversity Lottery - New Technology or a Trap?

by Bernard P. Wolfsdorf and Naveen Rahman

The Department of State has "modernized" the 2005 Diversity Visa (DV) Program to comply with the intensified security measures mandated by the USA PATRIOT Act of October 2001, the Enhanced Border Security and Visa Entry Reform Act of 2002 ("Border Security Act") and the Homeland Security Act of 2002. The thrust of these legislative enactments is enhanced security through interagency data sharing and increased vigilance. Originally designed to assist Irish immigrants and later to "diversify" the immigrant pool, the DV Program offers hope to the millions of aspiring immigrants who may not have other ways of obtaining immigrant visas. However, it will now also serve a dual purpose of generating a massive database of millions of names, biographic information and photographs of people who voluntarily participate in this seemingly innocuous lottery. The data will be available to intelligence and security agencies and the Department of States believes it will be a way to "thwart terrorists or criminal aliens who may use the DV program to enter the United States."[1] Having personal information including the name, date and country of birth and address of ten million applicants annually would not appear very useful to intelligence agencies seeking to stop people who may wish to cause harm to our country but it may be useful to an agency such as the U.S. Immigration and Customs Enforcement (ICE) searching for current addresses of the several hundred thousand people ordered removed or who have overstayed their visas. After fifteen years of advising that it is safe for out-of-status aliens to enter visa lotteries, the present government's attitude towards immigrants has made it necessary to caution persons entering the diversity visa lottery who may be out of status or otherwise removable.

The most significant change to the program is the new electronic filing procedure. The Department of State will only accept completed Electronic Diversity Visa (EDV) Entry Forms submitted electronically. Paper entries, which are mailed in, will no longer be accepted. Neither the EDV Entry Form nor the website are available at this time. Possibly in light of the DV program's late announcement and foreseeable technical difficulties, the registration period will commence later than usual on November 1, 2003 instead of the beginning of the fiscal year as in the past. On the positive side, the registration period will run for 60 days instead of 30 days. [2]

Applicants must also attach separate digital photographs of themselves, their spouses and children less than 21 years of age (expect children who are already permanent residents or U.S. citizens). The photographs must be in the Joint Photographic Experts Group (JPEG) format and meet specific resolutions (320 pixels wide by 240 pixels high), color depths (24-bit color, 8-bit color or 8-bit grayscale) and bytes (maximum 62,500 bytes) requirements. [3] If a photograph print is scanned, the print must be two inches square and be scanned at a resolution of 150 dots per inch and with specific color depths. [4] Presumably, these extensive requirements are designed for the Department of State's new facial recognition software. (Since facial recognition techniques are becoming increasingly sophisticated, the U.S. government is moving increasingly towards adopting this as the primary standard for identifying people. Presumably, scanners will soon be appearing at Ports of Entry and Departure.) If the digital image does not conform to the specifications, the application will be automatically disqualified. Conversely, if the EDV Entry Form is accepted, the applicant will receive an electronic confirmation notice.

Coincidently, an original signature on the petition and the photograph, which was traditionally perceived as a conclusive test of a fraudulent entry and which resulted in so many disqualifications, is no longer required. Rather, the Department of State believes that electronic filing offers other anti-fraud benefits, such as crosschecking for multiple submissions by matching digital images. Hopefully, male applicants will not be tempted to submit duplicate entries with bearded and clean-shaven photographs.

Furthermore, starting with the DV-2005 Program, Russians will no longer eligible to apply. The Department of Homeland Security has determined that Russia has sent more than 50,000 immigrants to the United States in the last five years. Accordingly, countries whose nationals are ineligible to participate are Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, South Korea, United Kingdom (except Northern Ireland) and Vietnam.

Aside from the technological challenges in the coming months, the Department of State should also address the procedural and substantive concerns from past DV programs.[5] Applicants, who do not have a high school diploma or equivalent, must have relevant work experience. To determine whether a particular occupation meets the requirement, the Department of State will now refer to the Department of Labor's O*Net OnLine database, for all DV programs. Previously, a Specific Vocational Preparation (SVP) of at least a "7" (minimum two to four years of experience) was required for a job to meet the DV requirement, while jobs with an SVP of "6" which required as much as two years of experience and thereby met DV experience criteria, were not acceptable. Now the Department of State will refer to the O*Net system which uses zones to classify standard vocational training for a particular occupation. Zone 3 includes occupations for which "medium preparation is needed" usually with one or two years of training and/or have completed three or four years of apprenticeship or several years of vocational training. Zone 3 occupations are assigned SVP ranges, which include SVP 6 to SVP 7. The ambiguity of the designated standard further complicates the evaluation of whether a "winner" meets the statutory eligibility criteria. For example, fashion designers are classified under Zone 3, but are assigned an SVP 7 because they can require two years of training or experience. The DV applicant should submit documentation explaining why the job requires two years of training or experience when reference to the O*Net system does not on its own resolve the matter.

For the DV-2003 program, only North America, Oceania, South America and the Caribbean became current in September 2003. Thousands of "winners" from the three largest regions, Africa, Asia and Europe, are now disqualified from the race because the Department of State miscalculated and notified too many winners. Those who are able to proceed will be scheduled for interviews during the final weeks. Despite a successful interview, many diversity visa winners from the countries designated for heightened security checks cannot be issued the diversity immigrant visa without first undergoing security clearances. While security clearances for citizens, nationals or persons born in these predominantly Muslim countries are supposed to take approximately twenty-four days, no visas may be issued until the clearance is issued, regardless of the delay. Furthermore, many applicants are subject to a "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 may cause families to splinter. For example, the wife, who is the primary applicant, receives her diversity visa, but will be unable to immigrate with her husband because his application is continued for Condor clearances. As a result, many male derivative spouses may not receive the diversity visas before the program ends on September 30th. 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.

As a result of these security clearances and the excessive number of 'winners' who were notified, many applicants discovered that winning the green card lottery was a disruption of their lives and caused false hope. Furthermore, many winners paid hundreds of dollars in processing fees to the Department of State but were not issued visas through no fault of their own. These applicants spent substantial time and money preparing for and traveling to their interviews and undergoing medical exams only to be terribly disappointed. Furthermore, if they are not issued immigrant visas, some may have their student and/or visitor's visas cancelled for possessing "immigrant intent" and may not be eligible for future visas because they had expressed an intent to immigrate. Now more than ever, DV applicants must be advised of the risks and potential legal vulnerabilities. Knowledgeable counsel can guide applicants both at the initial petition stage and even more so during the adjustment of status or immigrant visa processing to ensure the applications meet the rigorous criteria and if selected, enhance the ultimate success for any DV "winner".

[1] 68 FR 49353 (August 18, 2003).
[2] U.S. Dep't of State, "Instructions for the 2005 Diversity Immigrant Visa Program (DV-2005)."
[5] 68 FR 49353 (August 18, 2003).

About The Author

Bernard P. Wolfsdorf, Esq. 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 Preeminent 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 ABA Commission on Immigration. 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 or 1(800)-visa-law.

Naveen Rahman, Esq. 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 can be contact at or 1(800)visa-law.

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

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