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Listserv Q&A for
"Unraveling The Mysteries In Adjustment Of Status"

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Question:

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).
Khan v. Ashcroft, 2004 wl 2034079, (n.d.ill., aug 27, 2004)
Coraggioso v. Ashcroft, 355 f.3d 730 (c.a.3,2004.)
Carrillo-Gonzalez v. I.N.S., 353 f.3d 1077 (c.a.9,2003)

(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.


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