"Unraveling The Mysteries In Adjustment Of Status"
Whether a 2004 DV application denial may be appealed after Oct. 1. He applied for aos on January 28, 2004 NY Albany district office. He received a denial on September 24, 2004 (dated September 21) for failure to attached necessary tax documents. A motion to reopen was filed on September 28th, 2004. On October 1, 2004 he received a letter stating that the motion to reopen was approved. On Octber 6, he received a letter stating that the year had ended and he was out of luck.
Answer by Dinesh Shenoy:
As far as i know, no, there is no recourse after the end of the fiscal year on 9/30/04. see INA 204(a)(1)(i)(ii)(ii): "aliens who qualify, through random selection, for a visa under section 1153(c) of this title [i.e., INA 203(c) - the dv lottery program] shall remain eligible to receive such visa only through the end of the specific fiscal year for which they were selected."
Couple that with INA 245(a)(2) - "the status of an alien . . . may be adjusted . . . to that of an alien lawfully admitted for permanent residence if . . . (2) the alien is eligible to receive an immigrant visa. . ." when the two are read together, it means once 9/30/04 passes, the eligible to receive the dv visa disappears.
With those two INA provisions reading as they do, i think it would be very difficult to get a federal court to change the outcome. here are some cites of cases to check out that cite INA 204(a)(1)(i)(ii)(ii); i've not read them in detail, just skimmed them, but they seem to bear out that there's no recourse in this situation:
Lavelle v. U.S. Dept. of Homeland Security, 2004 wl 1975935 (n.d.cal.,
sep 07, 2004).
(There are more, do a search of all federal cases for the term "1154(a)(1)(i)(ii)(ii)")
Check out AILA infonet at doc. no. 04021367: AILA press release: AILA's statement on legislation that would preserve dv eligibility in the face of processing delays. for now, that bill has not become law, not clear what's going to happen to it.