DIVERSITY VISA LOTTERY

Reasons Why Attorney Processing Can be Helpful!
by Bernard P. Wolfsdorf, Esquire

The question "Do I need a lawyer for the lottery?" is frequently asked. Here is the answer!

1.  Complying with Technicalities and Timely Filing

For the DV-2004 lottery, the State Department announced that 2.9 million applications were disqualified for failure to comply with the technical rules and regulations.  In addition, spelling errors, omissions of a spouse or child, and strict enforcement of the original signature requirement have resulted in countless winners being disqualified.

The government accepts applications during the 60-day registration period, which this year is being held from October 5, 2005 through December 4, 2005. Applications received before or after the registration period are disqualified. Starting from DV 2005 lottery contains even more complicated technical requirements for applications, particularly with respect to the attachment of digital photos, which must meet exacting specifications.

2.  Expedited Processing After Selection

Lottery winners are assigned a rank order number.  Approximately twice as many “winners” are selected than there are “green cards” available.  As a result, more than 50% of the notified “winners” do not succeed in obtaining green cards because the State Department notifies more persons than there are actual visas.  A knowledgeable immigration attorney can optimize prospects of successful processing after selection by making key decisions.  Visas are issued on a first-come, first-served basis as well as on the rank order quota system.  Collecting and submitting the correct documents as well as making the correct decision to file expeditiously either an adjustment of status or immigrant visa processing abroad is critical.  If the winning ticket is a low rank number and the alien has maintained lawful status, adjustment of status may be advisable; however, this may be less desirable because of extended District Office processing times, ineligibility to adjust such as unauthorized employment or prior violations of status. 

3.  Lottery Eligibility is Based on Country of Birth

Some applicants can enhance their prospects of success by cross-charging their nationality.  The term native means BOTH someone born within one of the qualifying countries AND someone entitled to be “charged” to such country under the provisions of Section 202(b) of the Immigration and Nationality Act. 

Applicants for DV registration may be charged to the country of birth of a spouse; a minor dependent child can be charged to the country of birth of a parent; and an applicant born in a country of which neither parent was a native or a resident at the time of his/her birth may be charged to the country of birth of either parent.

There are several cases where cross-chargeability can create or enhance success:

(a) Cross-charging from a non-eligible country to an eligible country.  Natives of certain countries with high numbers of immigrants to the U.S. are barred from entering the lottery.  An applicant born in India (non-eligible country) married to a person born in Nepal (eligible country) can cross-charge to his/her spouse’s country.

(b) Cross-charging from a lower allocation region to a higher allocation region.  The DV program has six separate regional lotteries:  Africa, Asia, Europe, North America, Oceania, and South America.

A Japanese-born national (Asia) who is married to a European-born national can cross-charge to Europe and automatically increase the prospect of selection by almost 200%.  In FY 2004, Europe had 35,868 visas allocated whereas Asia had 19,599 visas allocated (1.8 times as many visas).  The statistic here is probably underestimated as Asia almost certainly has more individuals applying.

(c) Cross-charging to overcome per country limitations.  Each country is limited to 7% of the total, or 3,500 visas.  By cross-charging out of an over-subscribed country, applicants can increase their chances of getting a visa.  For example cross-charging out of Albania or Bangladesh (frequently over-subscribed countries) may avoid visa unavailability.

In order to understand the concepts of cross-chargeability, you must also understand the concept of territory and nationality.  The actual place of birth for DV purposes is the country border as recognized by the United States at the time of the lottery application.  There are numerous instances of altered odds of winning based on country of birth, such as an applicant born in what was Pakistan (ineligible) at the time of birth, but which is now part of Bangladesh (eligible).  Although the applicant may be a Pakistani citizen, he will be charged to his country of birth – Bangladesh, and will be qualified to participate in the DV Lottery program since Bangladesh is eligible.

Employment-based visa applicants can cross-charge at any time while processing to avoid visa unavailability but this may not be allowed for the DV program.

(d) Cross-charging to overcome rapid visa exhaustion.  The State Department routinely sends out 110,000 “winning” tickets for only 50,000 green cards.  If an applicant is eligible for participation in either the European or African lottery – it is better to apply in the African lottery as European lottery visas tend to be less available. 

This is extremely important as at least twice as many winners are selected.  Also each eligible family member takes a visa number.  With approximately 110,000 winners selected annually – each with a guesstimate of 2.5 average family members – as many as 225,000 people may be competing for only 50,000 visas.  Out of status “winners” frequently lament, “I thought once I had been selected I was sure to get a visa,” when they find themselves in deportation (or removal) hearings.  Thorough understanding of the rules of cross-chargeability is often essential to successful DV processing.

4.  Meeting Eligibility Once Selected

The basic requirements are relatively simple; however, the State Department has published ambiguous regulations.  The Act requires the equivalent of a U.S. high school diploma defined as, “a formal course of elementary and secondary education comparable to completion of twelve years of elementary and secondary education in the United States.” 

Winners can also qualify by having two years of work experience within the past five years in an occupation which requires at least two years of education, training, or experience to perform. If candidates do not meet the educational requirement, they must document the qualifying work experience within the past five years. The State Department has states that the U.S. Department of Labor's O*Net Online database will be used to determine qualifying work experience.

The State Department regulation is rigidly interpreted, whereas the Department of Labor treats the regulations as mere guidelines, which can be exceeded in cases of business necessity.  Accordingly, documenting and categorizing work experience based on the Department of Labor - Dictionary of Occupational Titles is often critical to ensuring eligibility.  Presentation of accurate and detailed documentation of the requisite work experience is vital to ensuring success in such cases.

5.  Overcoming Potential Grounds of Excludability & Deportability

The DV program subjects applicants to the full grounds of excludability and deportability including:

(a) Public charge.  Applicants must show an ability to avoid becoming a burden and must meet current poverty datum line guidelines.  For example, according to the 2005 Poverty Income Guidelines, a family of four must show a household income of at least $24,187.

(b) Visa fraud.  Material misrepresentation on a visa application or entry to the U.S. can result in a ten-year bar from visa benefits.  Lottery “winners” are often out of status and frequently misuse the visa waiver program or multiple entry visitor visas.  Re-entering the U.S. on a tourist visa while working in the U.S. is usually sufficient to sustain visa fraud.  Also, tourists or students who start work shortly after arrival on visitor visas are excludable.  Many lottery winners are oblivious to these issues.

(c) Two-year home residence rule.  Exchange visitors must first determine if they are subject to the home residence rule and then try to get expeditious waivers as they only have one year to complete the  visa lottery processing.  Many successful “winners” are surprised to find that by the time they get the waiver approved, the visas have become unavailable.  Even worse consequences ensue when they discover that failure to expeditiously process the permanent immigrant visa – with a waiver – can result in an inability to revert back to temporary J-1 exchange visitor status.  This can result in disruption of the academic program and the individual is in a worse position than if they had not won.

6.  Disruption of Current Nonimmigrant Status or Undocumented Status
     Resulting in Removal

Many students or visitors who are selected for the lottery apply to adjust status in the U.S.  Long delays in scheduling adjustment interviews at most District Offices result in visa number exhaustion.  When applicants finally attend their adjustment interviews, they are shocked to find that there are no visas left.  These applicants are even more surprised to find themselves in deportation proceedings as their authorized stay has expired.  Students are surprised to discover that their nonimmigrant intent has been destroyed and they are unable to apply for new visas abroad because of their expression of immigrant intent by applying for lottery green cards.  This results in disruption of the student’s U.S. educational program.

7.  Impairment of Nonimmigrant Visa Eligibility

A lottery application has been deemed to be an “immigrant petition.” Failure to disclose this petition on a nonimmigrant visa application Form DS-156 could result in visa fraud.  The State Department has advised that lottery applicants must answer “yes” to the question: “Have you ever filed an immigrant visa petition?”

Unfortunately, answering “yes” may, for some applicants, together with other factors, result in nonimmigrant visa denial based on an inability to convince a Consul or Immigration Officer of an intent to return home at the completion of his/her stay in the U.S.

8.  Strategizing in Relation to Adjusting Status in the U.S.

The law no longer allows out of status individuals or persons who have worked without permission to adjust status in the U.S.  Therefore lottery winners physically present in the U.S. may no longer apply for green cards through adjustment of status if they have violated their visa or if they worked without permission.  They are required to apply for immigrant visas at the American Consulate in their home country.  Also, if they have been out of status for more than 6 months, they are likely to be subject to the bars on re-entry and prohibited from returning to the U.S.

DV visas must be issued by September 30th of any given fiscal year – any delays may result in visa unavailability.  Similarly, delays in scheduling adjustment interviews in the U.S. can result in visa unavailability.  Competent advice on the choice between adjusting status or immigrant visa processing is critical to enhancing successful processing.

9.  Three- and Ten-Year Bars

Since out of status lottery winners cannot adjust in the U.S., their only option would be to immigrant visa process abroad.  Unfortunately persons out of status for over 180 days after April 1, 1997 will trigger a 3-year bar (or a 10-year bar if out of status for more than 1 year) to re-entry when they travel abroad.  Very few winners will be able to qualify for waivers.

10.  Document Preparation

Timely submission of the appropriate documentation is important.  Obtaining the correct documentation quickly is critical.  Applicants are required to obtain original long form birth certificates, marriage certificates, divorce certificates, death certificates, police certificates for resident countries, military clearances, prior evidence of financial support, evidence of prior visas, valid passports, photographs, medical exams, proof of education or work experience, public charge and other documentation.  Missing documentation or translations results in delays and possible visa unavailability.

11.  After Getting a Green Card - What Happens!

(a) Many “lucky winners” are shocked to discover that winning a green card means that they are now liable to pay capital gains and other U.S. income tax on income earned abroad.  Applicants are often not aware of the need for pre-immigration tax planning.  This can result in huge capital gains liability or inability to avoid double taxation.

(b) Some lottery “winners” are also surprised to discover that they actually have to live in the United States permanently, and they have only six months from the date of their interview to enter the U.S.  Advice on the proper use of re-entry permits and maintaining eligibility for naturalization is frequently important.

CONCLUSION

The successful processing of a DV petition into a green card is a perilous process requiring expeditious and careful preparation of documents and forms.  Questions frequently arise involving complex eligibility questions and difficult choices requiring knowledge of the immigration laws.  This year, the State Department disqualified 2.9 million applications for failure to comply with the rules and only 50,000 of the 110,000 “winners” notified by the State Department will actually get green cards - 60,000 of the “winners” actually lose.  This is because their “winning” numbers were too high, or their documentation was incomplete, or they failed to act fast enough.

The pitfalls are numerous.  Hopefully, the question “Why do I need a lawyer?” has been answered.  This question is understood by the distraught individuals for whom winning the lottery turned into a nightmare.  Failure to check for cross-chargeability, excludability, removability, triggering bars to admission, and impairment of current or other potential visa status is often malpractice.  While having a lawyer may not be critical if you carefully read and comply with the regulations, having a good lawyer will help to ensure success in properly preparing the application.

Should you wish to review your options, we invite you to contact 
Bernard P. Wolfsdorf, Stephen M. Dewar,
Avi Friedman, Rita Kushner Sostrin, 
Tien-Li Loke Walsh, or Naveen Rahman
at (800) VISA-LAW or (310) 573-4242.

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Bernard P. Wolfsdorf is a State Bar of California Certified Specialist in Immigration and Nationality Law practicing in Los Angeles. He currently serves as the Treasurer on the American Immigration Lawyers Association (AILA) Board of Governors, and he has served as the Chair of the following committees: AILA's U.S. Department of State Liaison; AILA’s California Service Center Liaison; AILA's Artists and Entertainers; AILA's Consular Affairs Liaison; AILA's Western Service Center Liaison; and the Southern California Chapter of AILA.