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					The Diversity Visa Program (Green Card Lottery)




                  By Bill Kadarusman




             Presented for Voice of America

                 On September 6, 2004
                                                                  Table of Content

I.         Introduction........................................................................................................................................ 3

II.        Nuts and Bolds of the Green Card Lottery....................................................................................... 4

III.       Key Considerations............................................................................................................................ 7

      a.   Foreign State chargeability................................................................................................................ 7

           1.         Parent-child exception........................................................................................................... 7
           2.         Married couple exception...................................................................................................... 8
           3.         Missionary exception ............................................................................................................ 8
           4.         U.S. born non-citizens exception.......................................................................................... 9

      b.   High school education or its equivalence......................................................................................... 9

      c.   Work experience.............................................................................................................................. 10

      d.   Public charge – DV winners may not be recipients of social welfare.......................................... 11

      e.   Derivatives ....................................................................................................................................... 12

IV.        Procedures to obtain DV – 2 ways:................................................................................................ 13

      a.   Immigrant visa process abroad ....................................................................................................... 13

      b.   Adjust status in the U.S................................................................................................................... 14

V.         Visa Fraud ........................................................................................................................................ 15




                                                                                                                                                              2
                                The Diversity Visa Program (Green Card Lottery)

                                                By Bill Kadarusman1

    I.       Introduction

    The Immigration and Nationality Act (INA) provides only four ways by which an individual may

immigrate to the United States: (a) family sponsored, (b) employment preference, (c) political asylum,

and (d) the diversity visa (DV) program or the green card lottery. For the past decade, on the average

only 4 or 5 percent of all the immigrants who were granted legal permanent resident status receive

green card through the DV program. For example, by the end of the fiscal year (FY) 2002 (between

October 1 ‘01, and September 30 ‘02) more than 1 million immigrants (1,063,732 individuals) were

granted legal permanent resident status; of that number, about sixty-three percent were family

sponsored, 16 percent were admitted under employment preferences, 12 percent were admitted as

refugees or asylees, and only 4 percent were admitted under the DV program. See the following table

for further statistics:

                               Class of Admission of Legal Immigrants: FY 1989-2001 2
                                                  (Percent of total)

Year      Total       Immediate          Family     Employment      Refugee    IRCA or Legalization       DV        Other
           (in      Relative of U.S.   Preference    Preference       or           dependent            program
         percent)       citizen                                     Asylees
1989       100             20             20             5             8                 44               N/A         3

1990       100            15              14             4             6                 57               N/A         4

1991       100            13              12             3             8                 61               N/A         3

1992       100            24              22             12           12                 22                 3         4

1993       100            28              25             16           14                 9                  4         4

1994       100            31              26             15           15                 5                  5         2


1
  The author has a law degree from Brigham Young University Law School in Utah and has numerous experiences in
handling political asylum cases from Indonesia and other immigration problems in the United States. In the summer of
2003, he worked for a non-profit organization called Catholic Charities of the East Bay in Oakland, California, in its
immigration division as well as for the law office of Christina Chen, attorney-at -law, in San Francisco, California.
Currently, he works at a youth detention center as a youth counselor in Utah.
2
  U.S. Department of Justice – the Immigration Naturalization Service, 2001 Statistical Yearbook of the Immigration and
Naturalization Service 13.

                                                                                                                          3
1995      100           31            33           12          16               1                7        1

1996      100           33            32           13          14               1                6        1

1997      100           40            27           11          14              <0.5              6        1

1998      100           43            29           12           8              <0.5              7        1

1999      100           40            34           9            7              <0.5              7        1

2000      100           41            28           13           8              <0.5              6        4

2001      100           42            22           17          10              <0.5              4        5



    Participants in the DV program are nationals of “underrepresented countries,” which have not been

able to benefit from the employment and family based petition or are ineligible to apply for asylum.

Pursuant to §203(c) of the INA, 50,000 permanent resident visas are made available annually to

individuals from countries with low rates of immigration to the United States.

    The visas, however, are distributed unequally among six geographic regions – Africa, Asia,

Europe, Oceania, North America (Bahamas), South America and the Caribbean. Visas are given to

people with lower rates of immigration, and no visas are afforded to citizens of countries sending more

than 50,000 immigrants to the U.S. in the past five years. In the past, approximately 42 percent of the

visas were allocated to natives of Europe, 39 percent to natives of Africa, 13 percent to natives of Asia,

4 percent to natives of South America, and only about 1.5 percent to natives of Oceania and North

America. Within each region, no one country may receive more than seven percent of the available

Diversity Visas in any one year.

    II.     Nuts and Bolds of the Green Card Lottery

    The Department of State (DOS), not the U.S. Citizenship and Immigration Service (formerly

known as the INS), organizes and processes the DV program. Therefore, the DOS regulations define

the eligibility criteria, the limitations and the procedure by which a participant files a petition for




                                                                                                              4
consideration. Further the DOS instructions and discussions of the DV program can be found within

section 42.33 of the Foreign Affairs Manual (FAM).3

      The annual DV program makes permanent residence visas available to persons meeting the

deceptively simple eligibility requirements. The applicants must provide their full name, date of birth,

gender, city or town of birth, a less-than-six-month-old photograph, current mailing address, country of

eligibility (if the applicant’s native country is different from country of birth), marriage status, number

of children that are unmarried and under 21 years of age (if any), as well as spouse and children

information (name, date of birth, gender, city/town of birth, and a recent photo). Telephone number

and email address are optional.

      The DOS, wary of fraud, demands strict compliance. Failure to complete the form in its entirety

will disqualify the applicant’s entry, and often the most innocent error raises a presumption of fraud

because the DOS has become cynical about applications. Accordingly, if a DV adjudicator finds an

inconsistency in the spelling of a name on the birth certificate from the petition, he or she may

disqualify the applicant. All entries by an applicant will be disqualified if more than one entry for the

applicant is received. Additionally, no more paper application is accepted. The only way to enter the

DV program is to submit an electronic DV entry form which is accessible only at

http://www.dvlottery.state.gov Furthermore, the photo must conform to the following specifications as

set by the DOS:

            •    The image must be in the JPEG format

            •    The image must be either in color or grayscale

            •    If a new digital photo is taken, it must have a resolution of 320 pixels wide by 240 pixels

                 high, and a color depth of either 24-bit color, 8-bit color, or 8-bit grayscale




3
    The FAM can be accessed at http://travel.state.gov/visa/index.html

                                                                                                               5
        •   If a photographic print is scanned, the print must be 2 inches by 2 inches (50 mm by 50

            mm) square

        •   The maximum image size accepted will be 62.5kb

        •   The applicant, spouse, or child must be directly facing the camera; the head of the person

            being photographed should not be tilted, and should cover about 50% of the area of the

            photo

        •   The background should be light colored; photos taken with very dark or patterned, busy

            background will not be accepted

        •   Photos in which the face of the person being photographed is not in focus will not be

            accepted

        •   Photos in which the person being photographed is wearing sunglasses or other face

            paraphernalia which conceal the face of the applicant will not be accepted

        •   Photos of applicants wearing head coverings or hats are only acceptable due to religious

            beliefs, and even then, may not obscure any portion of the face of the applicant

   Applicants for DV program are chosen by a computer-generated random lottery drawing. The

National Visa Center (NVC) assigns random numbers to the acceptable applications received within

the designated 60-day period and separates them by region. A computer program randomly rank-

orders the numbers for each region. The NVC then selects in the rank-orders determined by the

computer a quantity for each region estimated to be sufficient to ensure the usage of all possible DV

immigrant visas. In this manner, 100,000 “winning lottery” are selected for the 50,000 available visas.

As stated earlier, no more than 7 percent of the DV visas may go to applicants from a particular

country. Moreover, all entries received during the registration period will have an equal chance of

being selected within each region.




                                                                                                         6
     The FAM specifies that in order to qualify under INA 203(c) as a diversity immigrant the following

requirements must be met:

               a. The alien must be a native of4 or chargeable to a diversity country5; and

               b. The alien must have at least a high school education or equivalent6; or

               c. The alien must have, within five years of the date of application for a diversity

                   immigrant visa under INA 203(c), at least two years of work experience in an

                   occupation which requires at least two years of training or experience.7

      III.     Key Considerations

               a. Foreign State chargeability

                   The DOS defines “native” as one who is “born within the territory of a foreign state, or

               entitled to be charged for immigration purposes to that foreign state pursuant to INA

               §202(b), as amended.”8 Stated differently, the country of birth determines state of

               chargeability.

                   However, in order to promote family unity, the exceptions of alternate and cross

               chargeability allow applicants to charge to parents’ or spouses’ countries of birth. These

               exceptions are crucial because they allow beneficiaries of family, and to a lesser extent,

               employment-based immigration petitions to remove themselves from horrendous

               backlogged countries and DV applicants to remove themselves from ineligible countries.

               Thus, there are 4 exceptions to the “nativity” rule:

                        1.      Parent-child exception – within the DV scenario, the first exception prevents

                                the separation of a child from a parent. An immigrant child may be charged

                                to the same foreign state to which a parent is chargeable if the child is

4
    9 FAM 42.33 N4.2
5
    9 FAM 42.33 Exhibit I
6
    9 FAM 42.33 N7
7
    9 FAM 42.33 N8
8
    59 Fed. Reg. 15300 (Mar. 31, 1994).

                                                                                                            7
                            accompanying or following-to-join the parent.9 In short, a child can be

                            charged to his or her parents’ country of chargeability; however, the reverse

                            is not allowed.10 Nonetheless, all unmarried children under 21 years may

                            claim derivative eligibility for an immigrant visa from a parent.

                    2.      Married couple exception – likewise, a second exception prevents the

                            separation of a married couple. An immigrant spouse may be charged to a

                            foreign state to which his or her spouse is chargeable if accompanying or

                            following-to-join.11 For both of these exceptions, the relationship must exist

                            at the time of the principal applicant’s admission to the United States with an

                            immigrant visa or adjustment to LPR status.12 Notice, however, that

                            marriage after registration to an alien from an eligible state would not

                            qualify the couple for visas. The reverse situation would qualify the couple

                            for visas where the winning applicant is a native of an eligible state and

                            before visa issuance marries an alien from an ineligible state. For example,

                            Agus from Indonesia receives a notification from the U.S. embassy for LPR

                            interview, but before interview he marries Susanti, also from Indonesia. In

                            this case, since Susanti is also from Indonesia, Agus may not be able to bring

                            Susanti to U.S. as LPR. But if Agus marries to Olga from Russia, both will

                            receive a green card.

                    3.      Missionary exception – a third exception known as the “missionary

                            exception” applies when the DV applicant was born in a foreign state in

                            which neither of his or her parents were born or had residency at the time of


9
  22 CFR §42.12(b).
10
   9 FAM Note 3.8 to 22 CFR §42.12
11
   22 CFR §42.12(c).
12
   9 FAM Note 3.3 to 22 CFR §42.12.

                                                                                                           8
                                 the applicant’s birth.13 The children of such parents are not considered as

                                 having acquired a residence within the meaning of the INA §202(b)(4), if, at

                                 the time of the alien’s birth within the foreign state, the parents were visiting

                                 temporarily or were stationed there in conjunction with the business or

                                 professional and under orders or instructions of an employer, principal, or

                                 superior authority foreign to such state.

                        4.       U.S. born non-citizens exception – the last exception applies when the

                                 person was born in the U.S., but is not a U.S. citizen – for example, the child

                                 of a diplomat or a person who did acquire U.S. citizenship by birth in the

                                 United States but subsequently lost his citizenship.14 Such persons shall be

                                 considered as having been born in the country of which he is a citizen or

                                 subject, or if he is not a citizen or subject of any country, in the last foreign

                                 country in which he had his residence as determined by a consular officer.15

                                 It is critical to note that longstanding assignments do not destroy cross-

                                 chargeability. Rather the evaluation is made as to the parents’ status at the

                                 time of the alien’s birth. If the parents migrate permanently to the country of

                                 the applicant’s birth before application is filed, alternate state chargeability

                                 is not available.

               b. High school education or its equivalence

                    For the DV program, DOS defines high school education or its equivalent to mean

               “successful completion of a twelve-year course of elementary and secondary education in

               the United States or successful completion in another country of a formal course of

               elementary and secondary education comparable to completion of twelve years’ elementary

13
     22 CFR §42.12(e).
14
     56 Fed. Reg. 46099 (Sept. 9, 1991).
15
     INA §202(b)(3).

                                                                                                                     9
               and secondary education in the United States.16 A general education diploma (GED) test or

               its foreign equivalent will not satisfy this requirement.

                    In FY 2003, DOS embassies and consulates issued 48,115 diversity visas to persons

               from 158 countries or geographic entities.17 The “typical” principal applicant issued a

               green card was a male professional, aged 26-30, holding a university degree. About 40% of

               the principal applicants reported having received a college/university or advanced degree.

               Sixteen percent of principal applicants reported having some college education, 18% a high

               school diploma, 7% some high school, and 19% reported having attended vocational

               school.

               c. Work experience

                    To determine eligibility based on work experience, definitions from the Department of

               Labor O*Net OnLine database will be used. Their website can be accessed at

               http://online.onetcenter.org The DOS regulations direct the adjudicators to refer to the most

               recent edition of the O*Net OnLine or the Dictionary of Occupational Titles to determine

               whether a particular occupation is one that requires at least two years of training or

               experience. In terms of the citizenship and immigration service, a Specific Vocational

               Preparation (SVP) of at least a “7” (two to four years of experience) is required for a job to

               meet the DV requirement.

                    However, a job with an SVP of “6” can require as much as two years of experience and

               thereby meets DV experience criteria. Top of the scale SVP “6” jobs such as nurses,

               paramedics, professional athletes, biomedical equipment technicians, county or city

               auditors and radio directors should be sufficient to meet the experiential requirements of the

               DV program.


16
     22 CFR §42.33(a)(2).
17
     Visa Bulletin No. 73 Vol. VIII.

                                                                                                           10
                   The most recent visa bulletin (no. 73 vol. VIII) reported that the three most common

              occupational categories listed for principal applicants were

              executive/administrative/managerial occupations, service occupations, and college students.

              Other significant occupational categories were teachers - except Postsecondary, admin

              support including clerks, operators/fabricators/laborer, sales, technologists/technicians and

              engineer. Derivative applicants show a similar employment profile.

              d. Public charge – DV winners may not be recipients of social welfare

                   DV immigrants must meet the public charge category by showing that they are self-

              supporting; have sufficient skills and/or education to find employment, or have friends or

              family who will support them on arrival in the United States.18 Affidavit of Supports (Form

              I-864) is not required.19

                   With 2001 Poverty Income Guidelines at $17,650 for a family of four, DV winners have

              quite a high standard to meet.20 In many countries only a small percentage of the

              population earns over $17,650 annually. For example, Bangladesh which had 5,003

              registrants for DV-2001 program, has a per capita income of $360 and approximately 40

              percent of children enrolled in school drop out prior to completing primary school.21

              Similarly, Indonesian green card lottery winners may face the same challenge as the

              Bangladesh visa winners at the time of the visa interview. Only the wealthiest sector of

              Bangladeshi and Indonesian society can overcome INA §212(a)(4), which states that “a

              person who, in the opinion of the consular or immigration official, is likely to become a

              public charge” is excludable. As in any immigrant visa application, the applicant must

              show sufficient assets, income or a sponsorship to meet the poverty guidelines. Since many


18
     9 FAM 42.33 Note 9.1.
19
     Id.
20
     65 Fed. Reg. 7555 (Feb. 15, 2000).
21
     The World Bank, “World Bank Country Brief on Bangladesh,” September 5, 2000.

                                                                                                           11
               DV winners have no pre-arranged employment or family ties in the United States, this issue

               arises frequently.

                   Unfortunately, the relatively low DV criteria – a high school diploma or two years of

               experience in a job requiring two years of training, education, or experience – does not

               automatically satisfy the public charge requirement. Documentation to overcome the public

               charge issue is required in addition to the evidence of education and experience. As in any

               case, “to determine public charge, the INS applies a totality of the circumstances approach

               which includes whether the alien has received public assistance, his or her age, capacity to

               earn a living, health, family, situation, work history, affidavits of supports and physical and

               mental condition.”22

               e. Derivatives

                   Successful lottery winners are also granted immigrant visas for their spouses and their

               children under the age of 21 years. The important part to know here is that the immigrant

               visas granted to the derivatives are counted against the 50,000 diversity visa cap. This

               means that a husband and wife plus three children under 21 years of age are all counted

               against the 50,000 visas available even though only the husband is the only lottery winner

               in the family.

                   For the derivative to benefit, he or she must be listed on the application. If a winner

               fails or omits to disclose an existing spouse or child, such pretermitted derivative will not

               be eligible. However, the DOS will provide an exception for after-born children and

               spouses from marriages subsequent to the application, provided that they are bona fide

               derivatives who can overcome a presumption of fraud.




22
     Matter of A-, 19 I&N, Dec. 867 (Comm. 1988).

                                                                                                               12
                 The FAM holds that the death of the principal applicant will result in the automatic

             revocation of the application. The derivative beneficiaries will no longer be entitled to DV

             classification.23

                 In contrast, the CIS has authority to provide “humanitarian reinstatement.” Even

             though it is difficult to qualify for humanitarian reinstatement, the DOS should promulgate

             regulations similar to the CIS or in the absence of DOS regulations, CIS rules should

             govern. Furthermore, H. Edward Odom, Chief and Advisory Opinion Division, Directorate

             of Visa Services had previously expressed a more lenient and just policy in an opinion

             letter, stating:

                 Since a DV applicant is instructed to list the spouse’s name and date and place of birth

                 in the petition with which they registered for DV eligibility, the visa office believes that

                 when the principal registrant dies before he has an opportunity to apply for a DV visa or

                 adjustment of status, the spouse listed on the petition may be considered an alternate

                 principal applicant. Therefore, if the spouse was listed on the DV petition, she can

                 apply for a DV visa after the death of her spouse, as if she was the principal applicant.24

     IV.     Procedures to obtain DV – 2 ways:

             a. Immigrant visa process abroad

                 Regardless of how a DV winner processes the visa abroad or adjusts status in the U.S.,

             everyone must, immediately after he or she receives the winning notification, complete

             “Packet 3” which the Kentucky Consular Center (KCC) or the National Visa Center (NVC)

             sends to all the winners. The Packet 3 which can be downloaded from the DOS website

             (Form DS-122 and DS-230) can be filed with the KCC before October 1, the beginning of

             the fiscal year.

23
   9 FAM 42.33 Note 5.2-2.
24
  Letter from H. Edward Odom, Chief, Advisory Opinion Division, Directorate of Visa Services, U.S. Dep’t of State, to
Stanley Silver, Attorney at Law (August 16, 1996).

                                                                                                                        13
   When the rank-order or case number becomes current, the NVC will send the winner

the “Packet 4” which includes the appointment notices for visa interviews at the local U.S.

embassies or consulates (normally, the appointment is scheduled four to six weeks before

the interview). It is important to note that the successful winner does not have a visa

number allocated until a Packet 4 has been issued with an immigrant visa appointment date.

Here is the advantage of processing and getting the green card visa abroad. The local

embassies or consulates have ordered and had them when setting the appointment.

Therefore, once an individual passes the interview, the interviewer can immediately hand

out the visa upon the conclusion of the interview.

b. Adjust status in the U.S.

   For adjustment applicants, most CIS district offices have developed “special handling”

procedures for DV cases. Assuming the applicant’s country is current, his or her

adjustment of status application can only be filed after October 1, the first day of the fiscal

year. However, beginning in 1999, all CIS District offices are instructed to accept

adjustment of status applications filed under the DV program anytime during the 90-day

period preceding the cut-off date provided in the Visa Bulletin.

   Here, unlike processing visa abroad, the adjustment interviews are scheduled shortly

after filing the application. In most CIS district offices, visa numbers are only ordered

when the case is completed, that is, after the interview. Accordingly, many registrants who

have an appointment scheduled are surprised to find that there is no more visa available at

the time of the interview. This will have drastic deportation consequences for out-of-status

applicants. In short, out-of-status lottery winners and those who have their asylum case

pending in court (if they are selected as DV winners) cannot adjust in the United States.

Their only option would be to immigrant visa process abroad.


                                                                                              14
                   However, if the out-of-status lottery winner processes his or her immigrant visa back in

               the country of origin, there might be a dire consequence. INA §212(a)(9)(B)(i) prohibits

               admission to an applicant who:

                   was unlawfully present in the United States for a period of more than 180 days (6

                   months) but less than 1 year, voluntarily departed the United States and again seeks

                   admission within 3 years of the date of such alien’s departure or removal, or has been

                   unlawfully present in the United States for 1 year or more and again seeks admission

                   within 10 years of the date of such alien’s departure or removal from the United States,

                   is admissible.

               That provision in effect creates a three-and-ten-year-bar rule. For someone

               who has overstayed in the country more than 6 months but less than a year, he

               or she will be barred from returning to the U.S. for at least three years, and for

               someone who has overstayed for more than a year, that individual is barred for

               ten years. Very few lottery winners will qualify for a waiver, which must be

               based on extreme hardship to an immediate relative citizen or lawful

               permanent resident.25

      V.       Visa Fraud

      Material misrepresentation on a visa application or entry to the United States can result in a

permanent bar from visa benefits. The INA §212(a)(6)(C) misrepresentations provision provides that

an “alien who by fraud or willful misrepresentation of a material fact seeks to procure or has sought to

procure or has procured a visa, other documentation or entry into the U.S. or other benefit provided

under the Act” is excludable.

      In a typical nonimmigrant visa application such as tourist B-1/B-2 visa, a consular officer may give

little or no weight to a lottery application. However, this does not mean that the visa applicants should
25
     INA §212(a)(B)(v).

                                                                                                            15
omit information about DV program application if he or she has in the past participated in it. When

requesting benefits on Form DS-156 (Nonimmigrant Visa Application), one of the questions (on the

form and/or during interview) is “have you or anyone acting for you ever indicated to a U.S. Consular

or Immigration Employee a desire to immigration to the U.S.?,” and if so “has anyone ever filed an

immigrant visa petition on your behalf?” The DOS has determined that for lottery applicants, the

correct answer to these questions is “yes.”

   Failure to review the Form DS-156 carefully may have serious consequences for the unwary

applicant and the uninformed practitioner. The good news is the fact that an individual has

participated in the DV program in and of itself will not be sufficient cause for nonimmigrant visa

denial.

   Finally, for more information, DV winners can contact the Kentucky Consular Center directly.

The public telephone number for the KCC is (606) 526-750.




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