State Dept. Publishes Rules For 2005 Diversity Visa Lottery

IMMIGRATION LAW & POLICY

Obtaining Lawful Permanent Residence Status

STATE DEPT. PUBLISHES RULES FOR 2005 DIVERSITY VISA LOTTERY
Immigrants' Rights Update, Vol. 17, No. 6, October 2003

The U.S. State Dept. has published a notice detailing application procedures for the 50,000 immigrant visas to be available in fiscal year 2005 under the diversity visa lottery program ("DV-2005"). This year for the first time, applications for the program will be accepted only in electronic form during a 60-day registration period beginning Saturday, Nov. 1, 2003, and extending through Tuesday, Dec. 30, 2003. No procedure has been provided for submitting entries on paper, and no such entries will be accepted. And if more than one entry is received for any applicant, all the applicant's entries will be disqualified, regardless of who submitted the additional entry(ies).

Of concern to anyone interested in submitting a visa lottery entry who is inside the U.S. without legal immigration status should be the fact that the DV-2005 rule contains no restriction on the government's use for enforcement purposes of information it gathers from lottery entrants. Though none of the rules governing past visa lotteries have ever contained such a restriction, the fact that past lotteries relied on paper rather than electronic entries virtually assured that information regarding those millions of entrants who were not selected was of little enforcement value, since authorities lacked the capacity to organize and make use of it. The information in electronic entries, however, should be much more easy to glean and analyze for enforcement purposes.

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, because the Nicaraguan and Central American Relief Act (NACARA) allocates 5,000 of the DV visas per year, beginning with DV-1999, for use in the NACARA program, only 50,000 visas are available for DV-2005.)

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 enter the DV lottery and, if selected in the lottery, to apply for a DV visa:

AFRICA. All countries qualify.
ASIA. Most countries in Asia, including Indonesia and the countries of the Middle East, qualify. Countries that do not qualify are mainland China (i.e., people born in mainland China do not qualify), India, Pakistan, Philippines, South Korea, and Vietnam; however, persons born in Hong Kong SAR, Macau SAR, and Taiwan do qualify.
EUROPE. Most European countries, including their overseas components and dependent areas, qualify. However, Russia does not qualify, nor does the United Kingdom (except Northern Ireland does qualify), nor the U.K.'s dependent territories (i.e., Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, and Turks and Caicos Islands).
NORTH AMERICA. Only the Bahamas qualifies; Canada and Mexico do not qualify.
OCEANIA. All countries qualify (includes Australia, New Zealand, Papua New Guinea, and all countries of the South Pacific).
SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN. All countries qualify except the following: Colombia, Dominican Republic, El Salvador, Haiti, and Jamaica.

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 (12-year course of elementary and secondary education) or its equivalent, or (2) for two of the past five years must have worked in a job that requires at least two years of training and experience to perform. The work experience of applicants will be evaluated using the U.S. Dept. of Labor's O*Net OnLine database. (Applicants can find a link to a Labor Dept. list of qualifying occupations at the State Dept.'s Consular Affairs Web site: www.travel.state.gov.)

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 (if otherwise eligible) will qualify for a derivative visa. However, no person can submit more than one entry. If more than one entry is submitted for any person, that person will be disqualified from the program.

Application Process. A basic requirement to participate in the visa lottery is that the native of a qualifying country must submit one electronic diversity visa entry form within the application period. The form is accessible only at www.dvlottery.state.gov. According to the State Dept.'s notice, "Failure to complete the form in its entirety will disqualify the applicant's entry." The entry form requires that the applicant provide the following information:

1. APPLICANT'S FULL NAME. Last/family name, first name, and middle name.
2. APPLICANT'S DATE OF BIRTH. Day, month, year.
3. APPLICANT'S GENDER. Male or female.
4. CITY/TOWN OF BIRTH.
5. COUNTRY OF BIRTH. The name of the country should be that which is currently in use for the place where the applicant was born.
6. PHOTOS. All required photographs must be submitted electronically, as attachments to the electronic entry form. The digital file for each submitted photo may be produced either by photographing the subject with a digital camera or by electronically scanning a photographic print. Each digital photo file must be in the JPEG format; it must be of either a color or grayscale image (no monochrome images accepted); if it is a digital photo, its resolution must be 320 pixels wide by 240 pixels high and its color depth must be either 24- or 8-bit color, or 8-bit grayscale. Any scans of photographic prints submitted must be 2 inches by 2 inches (50mm x 50mm) square and scanned at a resolution of 150 dots per inch (dpi), with a color depth of 24- or 8-bit color, or 8-bit grayscale. The maximum acceptable size of each photo file is 62,500 bytes.

One "recent" photo each is required of the applicant and of the applicant's spouse and all his or her children (natural as well as legally-adopted children and stepchildren), except that no photo is required of any child who is already a lawful permanent resident or a citizen of the U.S. A photo for each non-LPR and non-U.S. citizen family member must be submitted, even for members who no longer reside with the applicant and regardless of whether they will accompany or follow to join the applicant in the U.S. Group or family photos are not acceptable; a separate photo must be attached for each family member.

The subject of each photo must be directly facing 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 a hat, dark glasses, or other paraphernalia that might obscure the face. A photo in which the subject is wearing a head covering or hat is acceptable only when the item is worn for religious reasons, and even in such a case the headwear must not obscure any part of the face. Any photo depicting the DV lottery entrant wearing tribal, military, airline, or other headwear not specifically religious in nature will be rejected.

7. MAILING ADDRESS. Address, city/town, district/country/province/state, postal code/zip code, country.
8. PHONE NUMBER. Optional.
9. E-MAIL ADDRESS. Optional.
10. COUNTRY OF ELIGIBILITY, IF APPLICANT'S NATIVE COUNTRY IS 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, that information must be submitted in the entry. If an applicant is claiming nativity through a spouse or parent, this should be indicated in the entry.
11. MARRIAGE STATUS. Is the entrant married? Answer Yes or No.
12. NUMBER OF APPLICANT'S CHILDREN WHO ARE UNMARRIED AND UNDER 21 YEARS OF AGE.
13. SPOUSE INFORMATION. Name, date of birth, gender, city/town of birth, country of birth, photograph.
14. CHILDREN INFORMATION (for each child for whom a photo is required (see number 6, "PHOTOS," above)). Name, date of birth, gender, city/town of birth, country of birth, photograph.

No fee is charged for submitting a visa lottery entry. Applicants will be selected at random from among all qualified entries. Every entry received during the lottery registration period will have an equal random chance of being selected within its region. Persons whose applications are selected for registration will be notified by mail between May and July 2004 about the next steps to take to apply for an immigrant visa. Spouses and unmarried children under age 21 of successful visa applicants may also apply for visas to accompany or follow to join the principal applicant, but processing of entries and issuance of diversity visas to successful applicants and their eligible family members must occur by midnight on Sept. 30, 2005 (DV-2005 visas will be issued between Oct. 1, 2004, and Sept. 30, 2005).

The State Dept. notice also reminds readers 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. 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-2005.

The notice takes pains to state that the DV program is operated entirely by the U.S. government and that no outside entity is sanctioned by the State Dept. to help prepare entrants' computerized entries. In terms of its chances of being selected in the random selection process, each properly completed electronic entry form has an equal chance of being selected, regardless of whether it is submitted directly by a private party or through the a paid intermediary.

However, receipt of more than one entry per person will disqualify the person from registration, regardless of the extra entry's source.

68 Fed. Reg. 51627-32 (Aug. 27, 2003).