State Dept. Publishes Rules for 2003 Diversity Visa Lottery

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

STATE DEPT. PUBLISHES RULES FOR 2003 DIVERSITY VISA LOTTERY
Immigrants' Rights Update, Vol. 15, No. 6, Oct. 8, 2001

The U.S. State Dept. has published a notice detailing application procedures for the 55,000 immigrant visas to be available in fiscal year 2003 under the diversity visa lottery program ("DV-2003"). The application process once again will be a one-month, mail-in procedure; and this time it will run from noon (Eastern Time) of Oct. 1, 2001, to noon of Oct. 31, 2001.

In a separate notice, the State Dept. announced that it is making a handful of changes to the regulations governing the program. The new regulations, which took effect on Aug. 31, 2001, clarify that under no circumstances may a consular officer issue a visa to an individual after the end of the fiscal year for which he or she was registered. The new regulations also reiterate that at the end of that fiscal year, the petition is automatically revoked. In addition, the new rules clarify the signature requirement and implement changes regarding photographs and the basis on which applicants' fulfillment of the training requirement will be evaluated.

The visa lottery was introduced in 1986 as a temporary procedure to increase immigration from countries that, especially since the 1960s, have sent relatively few immigrants to the U.S. In 1988 the program was extended for two years. The Immigration Act of 1990 then created a transitional program for three more years, followed in fiscal year 1995 by a permanent lottery program.

Under the permanent diversity visa program, 55,000 immigrant visas are allocated to the different regions of the world under a formula intended to allocate more visas to areas that have sent relatively few immigrants in the previous five years than to those that have contributed large numbers of immigrants. Natives of countries that have sent more than 50,000 immigrants to the U.S. in the past five years are not eligible, and no one country can receive more than seven percent of the diversity visas issued in a single year. (However, the State Dept. notes that the Nicaraguan and Central American Relief Act of 1997 (NACARA) allocates 5,000 of the DV visas for use in the NACARA program. The reduction, which first took effect with DV-2000, will continue for as long as it is deemed necessary, including for DV-2003.)

Eligibility for Lottery. To be eligible for the visa lottery, the applicant must meet two basic requirements: (1) the applicant must be a native of one of the limited number of countries whose natives qualify for the lottery (note: persons from these countries who are already in the U.S. are eligible to apply); and (2) the person must meet either the education or training requirement of the DV program. In addition, the individual must submit a properly completed application within the application period.

Natives of the following regions and countries are eligible to apply for the visas:

AFRICA - all countries qualify.
ASIA - all countries (including Israel and the Middle East, Indonesia, Hong Kong S.A.R., which is counted separately from China, and Taiwan) qualify-except China (mainland-born only, including Macau), India, Pakistan, Philippines, South Korea, and Vietnam.
EUROPE - all countries (extending from Greenland to Russia and including all countries of the former U.S.S.R., and also including components and dependent areas overseas of Denmark, France, and the Netherlands) qualify, except the following: Great Britain (United Kingdom) and its territories (including Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and Turks and Caicos Islands; however, Northern Ireland does qualify).
NORTH AMERICA (which is not considered to include America south of the U.S.) - only the Bahamas qualifies (i.e., Canada does not qualify).
OCEANIA - all countries qualify (includes Australia, New Zealand, Papua New Guinea, and all countries and islands of the South Pacific).
AMERICA SOUTH OF THE U.S. BORDER, AND THE CARIBBEAN - all countries qualify except the following: Colombia, Dominican Republic, El Salvador, Haiti, Jamaica, and Mexico.

A native of a country is someone who was born in the country or someone who is chargeable to it under Immigration and Nationality Act section 202(b). The rules of chargeability allow the following categories of people to apply for lottery visas as natives of a qualifying country: (1) the spouse of someone born in one of the qualifying countries; (2) the minor dependent child of a parent who was born in a qualifying country; and (3) a person, regardless of age, (a) who was born in a country of which neither parent was a native or resident at the time of the person's birth, and (b) one of whose parents is a native of a qualifying country.

The alternative education and training requirements for the diversity visa program are that applicants either (1) must have a high school education (twelve-year course of elementary and secondary education) or its equivalent or (2) for two of the past five years they must have worked in a job that requires at least two years of training and experience. Under the amended regulations, for applicants who register after July 31, 2001, their work experience will be evaluated using the Dept. of Labor's O*Net OnLine database. In previous years' programs, the Dictionary of Occupational Titles (DOT) had been used. For applicants who registered for the program before July 31, 2001, O*Net OnLine will also be used. However, the State Dept, notes, in cases where O*Net OnLine-based determinations differ from those based on the DOT, and the former disadvantages the applicant, consular officers are authorized to use the latter.

Though the lottery program imposes no age limits on who can apply, usually persons under 18 will be unable to satisfy the education/work requirement. Persons who are selected for visas can adjust status in the U.S. if they are otherwise qualified for adjustment of status. Finally, persons who are in the process of applying for a visa under a different visa category also can apply for the diversity visa lottery.

A husband and wife can each submit an entry; if either is selected, the other will qualify for a derivative visa. However, no person can submit more than one entry, and the applicant must personally sign the entry. If more than one entry is submitted for any person, that person will be disqualified from the program.

Application Process. As noted above, a basic requirement to participate in the visa lottery is that the native of a qualifying country must submit one entry form within the application period. An entry consists of a plain piece of paper with the following information typed or printed in English (entries will be disqualified if they do not provide all of this information):

APPLICANT'S FULL NAME - Last name, first name and middle name, with the last (sur-/family) name underlined (e.g., Smith, Sara Jane).
APPLICANT'S DATE AND PLACE OF BIRTH, in the following order - Date of birth: day, month, year (e.g., "15 November 1961"). Place of birth: city/town, district/county/province, country (e.g., "Munich, Bavaria, Germany") (use current name of country if different than at time of birth-e.g., Slovenia, rather than Yugoslavia; Kazakstan, rather than Soviet Union, etc.).
APPLICANT'S NATIVE COUNTRY, IF DIFFERENT FROM COUNTRY OF BIRTH - If the applicant is claiming nativity based on being a national of a country other than his or her country of birth, this must be clearly indicated on the entry itself and at the upper left corner of the entry envelope. If an applicant is claiming nativity through a spouse or parent, this should be indicated on the entry.
NAME, DATE AND PLACE OF BIRTH OF APPLICANT'S SPOUSE AND CHILDREN, if any - Applicants must include all of their children, natural as well as all legally adopted and stepchildren, who are under 21 and unmarried. Applicants' spouse and children must be listed even if they no longer reside with the applicant, and regardless of whether they will immigrate with the applicant. The instructions caution that failure to provide all of this information will disqualify the applicant.
APPLICANT'S FULL MAILING ADDRESS - Make sure the address is complete and clearly written to ensure that the registration notice can be delivered; phone number is optional, but useful.
PHOTOS - A recent (less than 6 months' old) 1½" x 1½" (37 mm square) photograph of the applicant, with the applicant's name printed across the back of the photo. Under the new regulations, the entry must also include recent photographs of the applicant's spouse and children (natural as well as legally-adopted children and stepchildren). Photographs must be submitted even if the spouse or child no longer resides with the applicant and regardless of whether they will accompany or follow to join the applicant in the U.S. Each family member must be represented in separate photographs, as group photographs will not be accepted. The name and birth date of each family member must be printed on the back of the photograph. Each photograph must be attached to the entry by clear tape. Do NOT use staples or paperclips. The back of the entry may be used if there is not enough room on the front to accommodate the photographs.
THE APPLICANT'S SIGNATURE - Applicants who do not personally sign their applications will be disqualified. As clarified by the new rules, the signature must be made in the applicant's "usual and customary" manner, in his or her native alphabet. As before, an initialed signature or block printing of the applicant's name will not be accepted. Should applicants sign their name in the Roman alphabet and their native language employs a different alphabet, they must also sign in the native alphabet.

The entry must be mailed (regular mail or air mail only; no faxes, registered mail, hand delivery, express mail, etc.) in a regular or business-size envelope. The envelope must be between 6 and 10 inches long (15 to 25 cm) and between 3½ and 4½ inches wide (9 to 11 cm). No postcards will be accepted, nor will envelopes placed inside express or oversized mail packages be accepted. The qualifying country or area of which the applicant is a native, followed by the applicant's full name and address as shown on the application, must be printed or typed in English on the front of the envelope in the top left-hand corner, followed by the applicant's name and full return address. Both the country of nativity and the country of the address must be shown, even if they are the same. The address to which the application should be mailed is the same for all applicants, except that the zip code differs depending upon the geographic area of the applicant's native country. Address the envelope as follows:

If the qualifying country is in ASIA -

DV-2003 Program
Kentucky Consular Center
2002 Vista Crest
Lexington, KY 41902 U.S.A.

If the qualifying country is in SOUTH AMERICA, CENTRAL AMERICA, OR THE CARIBBEAN - use the same address as for Asia, except use 4004 Vista Crest as the street number and 41904 as the zip code.

If the qualifying country is in EUROPE - same address, except use 3003 Vista Crest as the street number and 41903 as the zip code.

If the qualifying country is in AFRICA - same address, except use 1001 Vista Crest as the street number and 41901 as the zip code.

If the qualifying country is in OCEANIA - same address, except use 5005 Vista Crest as the street number and 41905 as the zip code.

If the qualifying country is the BAHAMAS - same address, except use 6006 Vista Crest as the street number and 41906 as the zip code.

No fee is charged for sending in a visa lottery entry. The entries will each be numbered and selected at random for "registration." No advantage can be gained by sending an application early in the application period, since all applications actually received during the application period will have an equal chance of being randomly selected within their regions. Persons whose applications are selected for registration will be notified by mail about the next steps to take to apply for visas between April and July 2002. The State Dept. selects more entries than there are visas available, and registrants who are notified that their entries have been selected must act promptly to apply for an immigrant visa. DV-2003 will end either when all visas available under the program have been issued or on Sept. 30, 2003, whichever is sooner.

66 Fed. Reg. 39,811-14 (DV-2003 rules); 66 Fed. Reg. 39,435-37 (notice of new DV rules) (Aug. 1, 2001) .