State Dept. Publishes Rules for 2004 Diversity Visa Lottery

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

STATE DEPT. PUBLISHES RULES FOR 2004 DIVERSITY VISA LOTTERY
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

The U.S. State Dept. has published a notice detailing application procedures for the 55,000 immigrant visas to be available in fiscal year 2004 under the diversity visa lottery program ("DV-2004"). 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. 7, 2002, to noon of Nov. 6, 2002. The notice warns that entries received either before or after these dates will be disqualified, regardless of the postmark they bear.

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 (NACARA) allocates 5,000 of the DV visas for use in the NACARA program. The reduction, which first took effect with DV-1999, will continue for as long as it is deemed necessary, including for DV-2004.)

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), 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. The work experience of applicants will be evaluated using the Dept. of Labor's O*Net OnLine database.

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):

1. APPLICANT'S FULL NAME – Last name, first name and middle name, with the last (sur-/family) name underlined (e.g., Smith, Sara Jane).

2. 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.).

3. 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.

4. 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.

5. 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.

6. PHOTOS – A recent (less than 6 months old) photograph of the applicant that is between 1½" x 1½" (37 mm square) and 2" x 2" (50 mm square), with the applicant's name and date of birth printed across the back of the photo. Photos may be in either black and white or color. The entry must also include recent photographs of the applicant's spouse and children (natural as well as legally adopted children and stepchildren). The subject of the photo must directly face the camera, with the head not tilted (i.e., tilted neither down, up, nor to the side). About 50 percent of the photo's area should be taken up by the head. The photo should be shot against a neutral, light-colored background, and the face should be in focus. The person photographed may not wear hats, dark glasses, or other paraphernalia that might obscure the face. Photos with the subject wearing head coverings or hats are acceptable only when worn for religious reasons, and in even in these cases the headwear must not obscure any part of the face. Photos depicting applicants wearing tribal, military, airline, or other headwear not specifically religious in nature will be rejected.

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. Each photograph must be attached to the entry by clear tape. Applicants should NOT use staples or paperclips or submit photocopies of photographs. The back of the entry may be used if there is not enough room on the front to accommodate the photographs.

7. THE APPLICANT'S SIGNATURE – Applicants who do not personally sign their applications will be disqualified. The signature must be made in the applicant's "usual and customary" manner, in his or her native alphabet. Neither an initialed signature nor block printing of the applicant's name will 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 (15-25 cm) and between 3½ and 4½ inches wide (9-11 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 indicated on the application, must be printed or typed in English on the front of the envelope in the top left-hand corner. 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 Program
Kentucky Consular Center
2002 Vista Crest
Migrate, KY 41902-2000
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 41904-4000 as the zip code.

If the qualifying country is in EUROPE – same address, except use 3003 Vista Crest as the street number and 41903-3000 as the zip code.

If the qualifying country is in AFRICA – same address, except use 1001 Vista Crest as the street number and 41901-1000 as the zip code.

If the qualifying country is in OCEANIA – same address, except use 5005 Vista Crest as the street number and 41905-5000 as the zip code.

If the qualifying country is the BAHAMAS – same address, except use 6006 Vista Crest as the street number and 41906-6000 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 2003. Because the State Dept. selects more entries than there are visas available, registrants who are notified that their entries have been selected must act promptly to apply for an immigrant visa.

The State Dept. notice also reminds that in order to receive a visa, randomly selected applicants must meet all eligibility requirements under U.S. law. Such requirements include those relating to special processing established in response to the events of Sept. 11, 2001. The notice warns that these requirements may significantly increase the level of scrutiny and time necessary to process applications for natives of some countries listed as eligible for DV-2004, "particularly those where a higher level of activity related to post-September 11 concerns has been indicated." These countries include, but are not limited to, nations identified as state sponsors of terrorism.

DV-2004 will end either when all visas available under the program have been issued or on Sept. 30, 2004, whichever is sooner.

67 Fed. Reg. 54,251–56 (Aug. 21, 2002).