Googler
09-28-2007, 09:44 PM
In most cases, the benefit of a successful winning application will
outweigh other risks. For many who do not qualify for an employment- or
family-based petition, this would be their only chance of immigrating. For
applicants in slow-moving job or family-preference categories, the benefits
are obvious.
A decision to enter the DV program should nonetheless be an informed
and careful choice. The DOS has held that a lottery application is, an
expression of interest in immigrating to the United States. Also it was
determined during the predecessor OP-1 lottery program that the entry is a
“petition” within the terms of the INA.
Clients should be counseled to disclose lottery participation on
applications, which request information as to whether an immigrant visa
petition has been submitted and that this information may result in a visa
denial pursuant to INA § 214(b). Too many people view the lottery
application as a simple matter not worthy of disclosure in another application.
Given the stakes, certain persons may not wish to risk applying for a lottery,
in which only a small chance of winning is weighed against the necessity of obtaining
student visas necessary to complete a program, particularly if travel or an extension
of stay is required.
Many “winners” who lost the race will now experience difficulty
obtaining student and visitor nonimmigrant visas and may not even be able to
enter the United States. Having made advanced efforts to become a
permanent resident, they have expressed clear immigrant intent and may not
be able overcome INA §214(b), which requires unrelinquished domicile
abroad. For example, a former F-1 student from Iran who chose to consular
process in Abu Dhabi, may now be unable to obtain a F-1 student visa to
return the United States to resume her course of studies. This same problem
arises for applicants who were unable to adjust status before September 30,
2003. Such individuals are placed in removal proceedings if they failed to
maintain underlying lawful nonimmigrant status.
When requesting benefits on Form DS-156, The Nonimmigrant Visa
Application, the form asks: “Has anyone ever filed an immigrant visa petition
on your behalf?” The DOS has determined that for lottery applicants, the
correct answer to this question is “yes.”
Failure to review the Form DS-156 carefully may have serious
consequences for the unwary applicant and the uninformed practitioner.
Although the question should not affect H and L applicants due to the doctrine
of dual intent, as well as O and E applicants, a perceived desire to reside
permanently in the United States may result in the refusal of issuance of the
visa for B-1/B-2, H-3 and J-1 applicants.
According to H. Edward Odom’s directive, “the fact that an alien has
registered for the visa lottery may be taken into account (just as any other fact
may be) by a consular officer when adjudicating a subsequent non-immigrant
visa application. However, the Visa Office is of the opinion that the fact of
registration, by itself, would not ordinarily be sufficient cause for visa denial
and certainly is not an automatic bar to receipt of a subsequent non-immigrant
visa(s).”
Also, although a lottery applicant is not automatically barred from
issuance of a nonimmigrant visa where INA § 214(b) applies, nor
automatically prohibited from changing status to such a nonimmigrant visa or
status, the willful misrepresentation of this fact before a Consular Officer or
Immigration official, if combined with other factors so that it becomes
material, could be grounds for refusal of a visa.
In a typical nonimmigrant visa application, a consular officer may give
little or no weight to a lottery application, whereas an approved Form I-140,
or Form I-130 immigrant petition may lend stricter scrutiny to the question of
nonimmigrant intent. If, however, the applicant has been registered as a
“winner” by the State Department, this will demonstrate a higher degree of
immigrant intent and foreclose many nonimmigrant visa options.
This issue also arises when applying for a change of status or extension of
stay in a visa category where nonimmigrant intent is an issue. Form I-539,
Application to Extend/Change Nonimmigrant Status at Part 4(a) and (b)
requests the following information: (a) Are you or any other person included
in this application, an applicant for an immigrant visa? (b) Has an immigrant
petition ever been filed for you, or for any other person included in this
application? The immigration practitioner should keep in mind that an F-1
student may file a number of these applications throughout a long academic
history if he/she changes from an English as a second language program to a
bachelor degree program to a graduate school program and finally to a
practical training program.
Diversity visa participants should also be aware that the DOS no longer
shreds unused and/or unselected diversity lottery applications. On September
12, 2002, Representative George Gekas, Chairman of the House Judiciary
Committee’s Subcommittee on Immigration, Border Security and Claims,
announced that upon his suggestion, the ten to thirteen million diversity visa
applications will be shared with U.S. law enforcement and intelligence
agencies.
The diversity visa program, which had once given hope to vast
hordes of wishful immigrants both in the United States and abroad, may now
become a security trap. Having the name, date and country of birth and
address of the ten to thirteen million applicants would hardly appear useful to
intelligence agencies, but may be useful to an agency searching for current
addresses of the several hundred thousand people ordered removed or who
have overstayed their visas. After fifteen years of visa lotteries, the present
government’s attitude towards immigrants has made it necessary to
recommend caution to persons entering the diversity visa lottery who may be
out of status or otherwise removable.
outweigh other risks. For many who do not qualify for an employment- or
family-based petition, this would be their only chance of immigrating. For
applicants in slow-moving job or family-preference categories, the benefits
are obvious.
A decision to enter the DV program should nonetheless be an informed
and careful choice. The DOS has held that a lottery application is, an
expression of interest in immigrating to the United States. Also it was
determined during the predecessor OP-1 lottery program that the entry is a
“petition” within the terms of the INA.
Clients should be counseled to disclose lottery participation on
applications, which request information as to whether an immigrant visa
petition has been submitted and that this information may result in a visa
denial pursuant to INA § 214(b). Too many people view the lottery
application as a simple matter not worthy of disclosure in another application.
Given the stakes, certain persons may not wish to risk applying for a lottery,
in which only a small chance of winning is weighed against the necessity of obtaining
student visas necessary to complete a program, particularly if travel or an extension
of stay is required.
Many “winners” who lost the race will now experience difficulty
obtaining student and visitor nonimmigrant visas and may not even be able to
enter the United States. Having made advanced efforts to become a
permanent resident, they have expressed clear immigrant intent and may not
be able overcome INA §214(b), which requires unrelinquished domicile
abroad. For example, a former F-1 student from Iran who chose to consular
process in Abu Dhabi, may now be unable to obtain a F-1 student visa to
return the United States to resume her course of studies. This same problem
arises for applicants who were unable to adjust status before September 30,
2003. Such individuals are placed in removal proceedings if they failed to
maintain underlying lawful nonimmigrant status.
When requesting benefits on Form DS-156, The Nonimmigrant Visa
Application, the form asks: “Has anyone ever filed an immigrant visa petition
on your behalf?” The DOS has determined that for lottery applicants, the
correct answer to this question is “yes.”
Failure to review the Form DS-156 carefully may have serious
consequences for the unwary applicant and the uninformed practitioner.
Although the question should not affect H and L applicants due to the doctrine
of dual intent, as well as O and E applicants, a perceived desire to reside
permanently in the United States may result in the refusal of issuance of the
visa for B-1/B-2, H-3 and J-1 applicants.
According to H. Edward Odom’s directive, “the fact that an alien has
registered for the visa lottery may be taken into account (just as any other fact
may be) by a consular officer when adjudicating a subsequent non-immigrant
visa application. However, the Visa Office is of the opinion that the fact of
registration, by itself, would not ordinarily be sufficient cause for visa denial
and certainly is not an automatic bar to receipt of a subsequent non-immigrant
visa(s).”
Also, although a lottery applicant is not automatically barred from
issuance of a nonimmigrant visa where INA § 214(b) applies, nor
automatically prohibited from changing status to such a nonimmigrant visa or
status, the willful misrepresentation of this fact before a Consular Officer or
Immigration official, if combined with other factors so that it becomes
material, could be grounds for refusal of a visa.
In a typical nonimmigrant visa application, a consular officer may give
little or no weight to a lottery application, whereas an approved Form I-140,
or Form I-130 immigrant petition may lend stricter scrutiny to the question of
nonimmigrant intent. If, however, the applicant has been registered as a
“winner” by the State Department, this will demonstrate a higher degree of
immigrant intent and foreclose many nonimmigrant visa options.
This issue also arises when applying for a change of status or extension of
stay in a visa category where nonimmigrant intent is an issue. Form I-539,
Application to Extend/Change Nonimmigrant Status at Part 4(a) and (b)
requests the following information: (a) Are you or any other person included
in this application, an applicant for an immigrant visa? (b) Has an immigrant
petition ever been filed for you, or for any other person included in this
application? The immigration practitioner should keep in mind that an F-1
student may file a number of these applications throughout a long academic
history if he/she changes from an English as a second language program to a
bachelor degree program to a graduate school program and finally to a
practical training program.
Diversity visa participants should also be aware that the DOS no longer
shreds unused and/or unselected diversity lottery applications. On September
12, 2002, Representative George Gekas, Chairman of the House Judiciary
Committee’s Subcommittee on Immigration, Border Security and Claims,
announced that upon his suggestion, the ten to thirteen million diversity visa
applications will be shared with U.S. law enforcement and intelligence
agencies.
The diversity visa program, which had once given hope to vast
hordes of wishful immigrants both in the United States and abroad, may now
become a security trap. Having the name, date and country of birth and
address of the ten to thirteen million applicants would hardly appear useful to
intelligence agencies, but may be useful to an agency searching for current
addresses of the several hundred thousand people ordered removed or who
have overstayed their visas. After fifteen years of visa lotteries, the present
government’s attitude towards immigrants has made it necessary to
recommend caution to persons entering the diversity visa lottery who may be
out of status or otherwise removable.