Substantive updates made to DOS Department of State policy on Diversity immigrant visas (Green Card Lottery visas or green cards), including the definition of “native,” procedures for DV selection and treatment of derivative family members.
See 9 FAM 502.6 here.
https://fam.state.gov/FAM/09FAM/09FAM050206.html
9 FAM 502.6
DIVERSITY IMMIGRANT VISAS
(CT:VISA-175; 09-13-2016)
(Office of Origin: CA/VO/L/R)
9 FAM 502.6-1 RELATED STATUTORY AND REGULATORY AUTHORITIES
9 FAM 502.6-1(A) Immigration and Nationality Act
(CT:VISA-1; 11-18-2015)
INA 202(b) (8 U.S.C. 1152(b)); INA 203 (8 U.S.C. 1153); INA 204(a)(1)(I)(ii) (8 U.S.C. 1154(a)(1)(I)(ii)); INA 212(a)(5) (8 U.S.C. 1182(a)(5)); INA 212(a)(6)(C) (8 U.S.C. 1182(a)(6)(C)); INA 212(e) (8 U.S.C. 1182(e)); INA 213(a) (8 U.S.C. 1183(a)); INA 221(g) (8 U.S.C. 1201).
9 FAM 502.6-1(B) Code of Federal Regulations
(CT:VISA-1; 11-18-2015)
22 CFR 40.205; 22 CFR 42.33.
9 FAM 502.6-1(C) Public Law
(CT:VISA-1; 11-18-2015)
Section 131 of the Immigration Act of 1990 (Public Law 101-649); the Nicaraguan Adjustment and Central American Relief Act (NACARA - Public Law 105-100); Section 1 of Public Law 105-360; Section 636 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208); the Assistance for International Malaria Control Act (Public Law 106-570); USA PATRIOT Act (Public Law 107-56).
9 FAM 502.6-2 DIVERSITY IMMIGRANTS OVERVIEW
(CT:VISA-175; 09-13-2016)
a. Section 131 of the Immigration Act of 1990 (Public Law 101-649) amended INA 203 to provide for a new class of immigrants known as “diversity immigrants” (DV immigrants). The amendment established an annual numerical limitation of 55,000 DV immigrants effective for fiscal year 1995 and thereafter. Aliens who are natives of countries determined by the Attorney General (now Secretary of Homeland Security) through application of a mathematical formula specified in INA 203(c)(1)(A) to be “low admission” countries may qualify for immigration under this limitation. INA 203(c)(1) requires a separate entry for each participating alien for each fiscal year.
b. INA 203(c)(1)(A) requires the Secretary of Homeland Security to determine the actual number of immigrant admissions from each foreign country for the previous five year period. The formula identifies both high and low admission regions and high and low admission foreign states. A greater share of the available visa numbers goes to low admission regions. High admission states are excluded from the program.
c. In November 1997, Congress passed Public Law 105-100, the Nicaraguan Adjustment and Central American Relief Act (NACARA). With NACARA, Congress stipulated that beginning with the 1999 Diversity Immigrant Visa Program, and as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas can be made available for use under the NACARA program.
9 FAM 502.6-3 DIVERSITY VISA ELIGIBILITY
(CT:VISA-175; 09-13-2016)
a. Requirements for Diversity Immigrant Program: To qualify under INA 203(c) as a diversity immigrant, the following requirements must be met:
(1) The alien must be a native of, or be chargeable to, a country eligible for that year's DV program (see 9 FAM 502.6-3 paragraph b); and
(2) The alien must have at least a high school education or equivalent (see 9 FAM 502.6-3 paragraph c); or
(3) 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 that requires at least two years of training or experience (see 9 FAM 502.6-3 paragraph d).
b. Qualifying Diversity Visa Countries
(1) Formula for Identifying Qualifying Diversity Countries:
(a) The Secretary of Homeland Security is required to determine total admissions of preference and immediate relative (IR) immigrants over the most recent five-year period for which statistics are available, worldwide total, by region, and by individual foreign state. Using these figures, the Secretary of Homeland Security is to identify both high admission regions and high admission foreign states. A high admissions region is a region whose admission total is greater than one-sixth of the worldwide total. A foreign state whose admissions total is greater than 50,000 is a high admission foreign state.
(b) Using available estimates, the Secretary of Homeland Security must then determine the population of each of the six regions (excluding the population of any high admission foreign state) and use those totals to determine the apportionment of the 55,000 worldwide DV limitations. Quotas for the six regions will be established. Natives of these regions compete for that portion of the total established for that region. Any unused portion of a regional quota is distributed proportionally among the other regions. High admission states are excluded entirely from the apportionment. No one country’s nationals may receive more than 7% of the available visas in any one year.
(2) Qualifying Countries: Natives of high admission counties are not eligible to register for the DV program unless they qualify based on chargeability to a DV program country. The Department of Homeland Security will determine annually the list of ineligible countries. The list is subject to change annually.
(3) Native: Native means a person born in a DV program county. An individual may be able to participate in the DV program because of specific family ties or personal situations by "charging" to another country. See 9 FAM 502.6-4 paragraph a(2) for additional information on chargeability.
c. High School Education or Equivalent:
(1) You must adjudicate the applicant’s qualifications under this requirement. In order to enter or apply for the DV program, the alien need not prove that this requirement is met. The applicant must, however, meet this requirement by the end of the fiscal year in which selected and present evidence of completion to be found eligible for a visa. If the applicant does not meet the requirement at the time of the interview, you should refuse the case 5A. If the applicant presents evidence of completion of high school before the end of the fiscal year, and visas are still available for the region, you may overcome the refusal and issue the visa.
(2) The Department’s Interpretation of the Term “at Least a High School Education or its Equivalent” Means Successful Completion of at least a:
(a) Twelve-year course of elementary and secondary study in the United States; or
(b) Formal course of elementary and secondary education comparable to completion of 12 years elementary or secondary education in the United States. Because a United States high school education is sufficient in itself to qualify a student to apply for college admission, in order for a foreign education to be equivalent to a United States education, it should be sufficient to allow a student to apply for college admission without further education. Vocational degrees that are not considered a basis for further academic study will not be considered equivalent to United States high school education.
(3) Education Requirements: We interpret the phrase “at least a high school education or its equivalent” to apply only to formal courses of study. Equivalency certificates (such as the G.E.D.) are not acceptable. To qualify, an alien must have completed a 12-year course of elementary and secondary education in the United States or a comparable course of study in another country. Evidence might consist of a certificate of completion equivalent to a United States diploma, school transcripts, or other evidence issued by the person or organization responsible for maintaining such records, which specify the completed course of study.
(4) Education Evaluation:
(a) Each post needs to determine what course of study is equivalent to a high school education or its equivalent in the host country. Previously, posts were provided with a guidebook that provided information on high school equivalency country by country. That guidebook ("Foreign Education Credentials Required”) is no longer in print and is not available in updated format. You should not rely on it for your evaluation of high school credentials. You should make use of the resources found in your Public Diplomacy (PD) section to determine comparable courses of study in the host country that would meet the definition of a high school education or its equivalent. Contacts in the host country’s Ministry of Education may also be of help. If you have questions about certificates and diplomas, you should consult with your public diplomacy section, including Education USA advisors and locally engaged staff, as they are valuable resources in evaluating local education systems. PD personnel advise prospective students and evaluate their educational backgrounds and have experience with and knowledge of local schools. To determine the authenticity of any particular document, you will need to work with your Fraud Prevention staff to develop expertise in making that determination. Interviewing officers may wish to consult with other posts when in doubt about the authenticity of educational certificates from countries outside their consular district.
(b) A DV refusal must be based on evidence that the alien did not in fact obtain the required degree and not on your assessment of the alien's knowledge level. You may not administer an exam, either oral or written, to test an applicant’s basic knowledge in order to determine whether they have the equivalent of a U.S. high school education. You may not refuse a DV applicant solely on the basis of your analysis of the applicant's basic knowledge. Doubts about the applicant’s claimed educational level raised by your interview, however, may lead you to investigate the authenticity of the educational credentials claimed by the DV applicant.
d. Work Experience:
(1) No Labor Certification: The labor certification requirement of INA 212(a)(5) does not apply to applicants applying as DV immigrants. Applicants, however, who do not meet the education requirement, must meet the work experience requirement of two years of experience in an occupation which requires at least two years training or experience within the five-year period immediately prior to application, or be able to meet the requirement prior to the end of the fiscal year in which the applicant was selected. If the applicant does not meet this requirement at the time of the interview, you should refuse the case 5A. If the requirement is met before the end of the fiscal year and visas are still available for the region, you may overcome the refusal and issue the visa.
(2) Work Experience Evaluation: If an applicant does not have the equivalent of a high school education, you must evaluate their work experience. You must use the Department of Labor’s O*Net OnLine database to determine qualifying work experience (see paragraph (3) below.) All applicants qualifying for a DV on the basis of their work experience must, within the past five years, have two years of experience in an occupation that is classified in a Specific Vocational Preparation (SVP) range of 7.0 or higher.
(3) Using O*Net Online to Determine Work Experience:
(a) Instructions for Determining the Applicant's Specific Vocational Preparation (SVP) Rating:
(i) Log on to the Department of Labor’s O*Net OnLine website;
(ii) Click on the “Find Occupations” link;
(iii) On the “Find Occupations” screen, enter occupational title, such as, “mason, “painter,” “hairdresser,” etc., and click on the “Go” button. A search results page appears with a list of various occupation titles that relate to whatever job title was entered. Click on the link in the “Occupation” column for the title that seems appropriate for the DV applicant's job experience;
(iv) A brief description for the job title will appear followed by more detailed data covering the following areas: tasks, knowledge, skills, abilities, work activities, work context, job zone, interests, work values, related occupations, and wages and employment.
(b) What SVP Range Qualifies an Applicant's Job Experience for the DV Program? The O*Net Online database groups job experience into five "job zones." Zone 4 includes all occupations for which more than two years experience on the job is required. An occupation in Job Zone 4 has an SVP range of 7.0 to < 8.0 (7.0 to less than 8.0) and will qualify an applicant for the DV program. Thus, all applicants qualifying for a DV on the basis of their work experience must, within the past five years, have two years of experience in an occupation that is classified in a SVP range of 7.0 or higher (i.e., an occupation in Job Zone 4).
e. Principal Registrants Under Age 18: Although there is no minimum age for submission of an entry, the requirement for a high school education or work experience will effectively disqualify most persons under age 18.
9 FAM 502.6-4 DIVERSITY VISA PROCESSING
(CT:VISA-175; 09-13-2016)
a. Diversity Visa Chargeability, Numerical Control:
(1) DV Numerical Control: The Department will have centralized control of the DV numerical limitation. (See 9 FAM 503.4.)
(2) DV Chargeability: As stated in the regulatory definition, the normal rules of chargeability apply to INA 203(c) immigrants. Many applicants may seek beneficial treatment from the rules of cross chargeability, as in the following examples:
(a) A spouse or child born in a country that is not among those for which DVs are available (a non-qualifying country) may use the principal registrant’s chargeability when they are accompanying or following-to-join;
(b) A child born in a non-qualifying country in which neither parent was born nor resident at the time of the child’s birth, may claim the birthplace of either parent;
(c) A principal registrant born in a non-qualifying country and the spouse who was born in a qualifying country may be issued DVs, provided the relationship was established prior to submitting the entry. In such instances, however, both applicants are considered principal applicants for the purpose of cross-chargeability and must be issued visas and apply for admission to the United States simultaneously.
(d) A principal registrant born in a country that is among those for which DVs are available may derive a more favorable foreign state of chargeability from an accompanying alien spouse. For example, a principal applicant from a DV eligible country from a high-admission region may claim a more favorable chargeability from a spouse, who is from a DV eligible country from a low-admission region, provided the relationship was established prior to submitting the DV entry. In such instances, however, both applicants are considered principal applicants for the purpose of cross-chargeability and must be issued visas and apply for admission to the United States simultaneously.
(3) Errors in Choice of Country of Chargeability: If the entrant chooses the wrong country of chargeability at the time of the initial entry, the error will generally be disqualifying. However, if a DV applicant chooses a country of chargeability on the DV entry form that is within the same geographic region (one of the six) as the correct country of chargeability, and you determine that the applicant gained no benefit from his or her error, and there are no fraud concerns, you may continue processing the application using the correct country of chargeability in IVO. Post may need to obtain additional DV number(s) for the correct country of chargeability from the Immigrant Visa Control and Reporting Division (CA/VO/DO/I), as necessary, via a VISAS FROG message (see 9 FAM 604.2-1).
b. Diversity Visa Entries and Applications:
(1) Diversity Visa Entries – Overview:
(a) General Instructions for DV Entries:
(i) Each year, the Department of State will publish rules for the next fiscal year's DV program in the Federal Register. Rules for a DV program in any fiscal year stipulate what information must be included on the DV electronic entry form, such as name, photo requirement, etc., as well as other requirements for the program and the DV lottery registration website. This electronic entry form is considered the petition required by 22 CFR 42.33 and INA 203(c).
(ii) We will establish a period for the submission of DV entries of at least 30 days each fiscal year in which the lottery will be conducted. To ensure wide dissemination of the information both abroad and in the United States, we will provide timely notice of the program’s rules and the exact dates of the registration period through publication in the Federal Register and by other methods.
(b) Number of DV Entries:
(i) Only one entry by or for each person is allowed during each registration period. Submission of more than one entry disqualifies the applicant fromselection. Registrants may be disqualified at any time if more than one entry is discovered. Registrants may prepare and submit their own entries, or have someone submit the entry for them.
(ii) Spouses, if both are qualified, may each submit one entry. If either is selected, the other is entitled to derivative status.
(c) Meeting DV Submission Requirements: Only those entries which meet the eligibility requirements specified in 22 CFR 42.33(a)(1) and the petition requirements specified in 22 CFR 42.33(b)(1-2), and which are received during the time period specified by the Department for each fiscal year, will be considered for selection for immigrant visa processing under INA 203(c). Entries lacking the required information or photos will be rejected by the registration website or disqualified at a later date during processing by KCC or at post.
(2) Submitting DV Entries:
(a) Place of Registration: To be accepted for DV selection, entries must be submitted electronically during the specified registration period at the Department’s designated website.
(b) Photos: Photo specifications are detailed in the annual DV Bulletin and also posted at the Department’s “travel.state.gov‟ website. The Department will disqualify entries lacking the required photos or including invalid photos. You must review the entry photo at the time of adjudication. If you determine that the photo on the entry is not that of the applicant, you may pursue a refusal under INA 212(a)(6)(C). The entry photograph may be viewed through the CCD under the “Immigrant & Diversity” section, “DVIS Applicant” report or on the eDV button on the IVO system.
(c) Derivatives:
(i) Except as specified in paragraph ii below, entries must include the name, photograph, date and place of birth of the applicant’s spouse and all natural children, as well as all legally-adopted and stepchildren, who are unmarried and under the age of 21 as of the date of the initial entry. All derivatives must be included even if the registrant is no longer legally married to the child’s parent, and even if the spouse or child does not currently reside with the registrant and/or will not immigrate with such applicant. Married children and children 21 years or older cannot qualify for the diversity visa on the basis of a parent's application. Entries lacking all of the required information may be disqualified at any time prior to selection, after selection, or during the visa application process. Visa applications lacking all required information will be refused.
(ii) By regulation, registrants are not required to include spouses and children who are already U.S. citizens or Lawful Permanent Residents (LPRs) on the entry. A failure to include on the entry spouses and children who are in fact U.S. citizens or LPRs cannot be used as grounds for denial.
(iii) You must deny the applications of applicants who failed to list on their initial entries a spouse or all children who were required to be listed. This does not include a spouse or child who was acquired subsequent to submission of qualifying DV entry. The spouse of a principal alien, if acquired after the initial entry and prior to the principal alien’s admission, or the child of a principal alien, if the child was born after entry or is the issue of a marriage which took place after entry and prior to the principal alien’s admission to the United States, although not named on an application, is entitled to derivative DV status.
(iv) If post believes a case merits issuance despite apparent failure to comply with this instruction, post can submit the case for an advisory opinion to the Advisory Opinions Division (CA/VO/L/A).
(3) Diversity Visa Application Validity:
(a) Under INA 204(a)(1)(I)(ii)(II), persons selected as DV immigrants are entitled to apply for visa issuance only during the fiscal year for which the entrywas submitted. The application is valid until midnight of the last day of the fiscal year for which the petition was submitted. There is no carry-over of benefit into another year for persons who do not receive a visa during the fiscal year for which they registered. Following-to-join derivative visas must be issued during the same fiscal year as that of the principal beneficiary.
(b) Death of Principal Registrant: The death of the principal registrant must result in the automatic revocation of the application. Thereafter, derivative beneficiaries are no longer entitled to the DV classification.
c. KCC and DV Ranking:
(1) KCC Role:
(a) Selected DV entries are processed at KCC. KCC processes approximately 125,000 registrants (both principals and dependents) each year. KCC will notify posts of the number of registrants from their DV-processing area who were selected, broken down by country of residence. The Department will maintain a computer-generated master list of selected registrants. The list is not publicly released.
(b) KCC will hold the case until those selected are entitled to make a formal application for visa issuance at a U.S. consular office abroad, or an adjustment of status with DHS in the United States.
(2) DV Selection and Ranking:
(a) Entries received during the designated registration period for the DV program will be separated into one of six geographic regions. At the end of the registration period, a computer will randomly select numbers. All entries successfully received during the registration period will have an equal chance of selection within the respective region.
(b) The selected entries for each region will have a rank order number consisting of two letters followed by eight digits, i.e., AF00000925. Within each region, the first entry randomly selected will have a rank order number 00000001, the second entry selected will be 00000002, etc. The letter codes are:
AF
Africa
AS
Asia
OC
Oceania
EU
Europe
NA
North America
SA
South America, Central America and the Caribbean
(c) Each month visa numbers will be allocated to applicants who are within the applicable rank cut-off for that month and have been reported documentarily qualified. Applicants are considered documentarily qualified when KCC confirms that the applicant has properly completed and submitted the DS-260.
d. Processing Diversity Visa Cases:
(1) Instruction Package for Immigrant Visa Applicants:
(a) If a case is selected for additional processing, the entrant will be notified electronically via Entrant Status Check, and instructed to complete Form DS-260, Online Application for Immigrant Visa and Alien Registration.
(b) Each visa applicant must follow the electronic instructions and electronically submit Form DS-260 to KCC. As soon as KCC has reviewed the DS-260 and made any required updates to the electronic DVIS record, the applicant will be considered documentarily qualified. In order to avoid potential delay in the scheduling of DV applicants, KCC does not collect any additional information or forms. KCC may ask applicants to update Form DS-260 if information is missing but will not delay scheduling if waiting for a response.
(2) Immigrant Visa Appointment Package: KCC will schedule an appointment for a documentarily qualified applicant when his or her regional lottery rank number is about to become current. KCC will notify scheduled applicants by e-mail that they should log into the Entrant Status Check website to obtain their appointment letters and further instructions. When scheduled applicants log into the ESC, they will be referred to the pre-interview instructions on the Diversity Visa Process website. On that website, applicants will be able to review post-specific instructions, and any additional required forms.
(3) Creation of Immigrant Visa File: KCC will review each DS-260 submission as they are received, and will update the electronic record in DVIS as required. In cases where a potentially disqualifying factor has been identified at KCC during case creation, a remark will be entered at the top of the DS-260 for the interviewing consular officer's information. KCC has no adjudicatory role, and so cannot determine an applicant's eligibility or qualification for the visa. Remarks are intended as additional information for officers to review as part of the adjudication process.
e. Diversity Visa Fee: There is no fee for submitting the initial entry for the DV program. However, those registrants who are selected and apply for DV immigrant visas will be required to pay a DV Lottery Fee at the time of the formal interview.
(1) Collection of Fee: Section 636 of Public Law 104-208, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, authorized the Department to collect a fee for the processing of DV immigrant visas. The DV Lottery Fee incorporates the standard IV processing fees, including the IV Application Fee and the IV Security Surcharge, and is specified in the Schedule of Fees for Consular Services. Posts must collect the DV Lottery Fee at the time of the applicant’s formal interview.
(2) Processing Cases to Conclusion: We can appreciate posts' efforts to prescreen applications allowing unqualified applicants to withdraw their applications to avoid paying the required fees. Nevertheless, like all other visa applications, it is important to process such cases to conclusion and not to simply allow the candidate to withdraw the application. Instances have arisen where DV winners who were advised not to make an application at a post abroad have then entered the United States and requested adjustment of status processing at DHS.
f. Diversity Visa Ineligibility Grounds:
(1) Applicants who establish that they qualify for DV immigrant visa classification are subject to all grounds of ineligibility specified in the Immigration and Nationality Act other than the labor certification requirements. There are no special provisions for a waiver of any ground of visa ineligibility other than those ordinarily provided in the INA.
(2) Refusals for Unqualified Applicants: Any applicant for a DV visa who fails to establish that they possess the requisite qualifications, including a valid entry for participation in the DV program, is ineligible under INA 212(a)(5)(A)(i). It is not appropriate to refuse a DV applicant under INA 212(a)(5)(A)(i) when a fraud investigation is needed before determining whether an applicant is qualified for a DV (e.g., if you suspect that the DV applicant does not possess the requisite education or work experience or if you suspect that the DV derivative applicant does not possess the requisite relationship to the DV principal applicant). In those cases, you must refuse the application under INA 221(g) pending the outcome of a fraud investigation.
(3) INA 221(g) Refusals:
(a) Interviewing officers should verbally stress the importance of submitting the requested information, preferably within the same month. When applicable, officers should advise applicants that failure to return promptly may mean that visa numbers will no longer be available and the applicant may miss the opportunity to obtain a visa.
(b) Posts must prepare a stamp to be placed on refusal letters to DV applicants refused under 221(g), with the following message:
Attention: Under no circumstances can a visa be issued or an adjustment of status occur in your case after September 30, ____.
Very important: Because of the limited number of visas that may be issued under this program, visas may cease to be available even before this date. This is especially true the closer to September 30 an application or re-application is made.
(c) Cases that are in INA 221(g) refusal status at the end of the fiscal year may be left in that status. You do not need to enter an additional refusal (such as INA 212(a)(5)(A)(i)) to close the case.
(4) Public Charge: While many categories of immigrants must submit the legally binding Form I-864, Affidavit of Support Under Section 213A of the Act, the DV category is not one of them. You can consult 9 FAM 302.8-2(B)(12)-(14) for standards of processing public charge issues in immigrant visa cases that do not involve the I-864, Affidavit of Support Under Section 213A of the Act.
(5) Waivers: Unlike applicants eligible for immigrant visas under other programs involving random selection, there are no special provisions for a waiver of any ineligibility grounds for DV applicants. The regular ineligibility waiver provisions of the INA, including INA 212(e), still apply.
g. Following-to-Join Applicants: DV applicants are informed in the electronic notification of how to adjust status to lawful permanent residence in the United States. A principal applicant who has adjusted status may file Form I-824, Application for Action on an Approved Application or Petition with USCIS requesting DHS send the Form I-824, upon its adjudication, to consular posts as verification of his or her LPR status. Upon receipt of this information, posts must send any derivative family members instructions for accessing the Form DS-260, Online Application for Immigrant Visa and Alien Registration, and the Packets for Immigrant Visa Processing (see 9 FAM 504.4-2(A)(2)) for completion. Post must notify the KCC of the adjustment of the principal applicant so that the electronic case can be modified and transmitted to post to allow visa issuance to the derivative family members. Proof of the principal applicant’s adjustment of status must be provided to the KCC. Posts can then process these cases to conclusion, obtaining additional DV numbers from the Immigrant Visa Control and Reporting Division (CA/VO/DO/I,) as necessary, via VISAS FROG messages (see 9 FAM 601.7-6). Spouses and children who derive status from a DV application can only obtain visas in the DV category during the same Fiscal Year in which the principal applicant was admitted or adjusted status. Applicants cannot follow-to-join after the end of the Fiscal Year.
h. Transfer of DV Cases:
(1) Posts are to follow normal IV case transfer procedures when a DV applicant asks that his or her case be transferred to a different post for processing. (See 9 FAM 504.4-9.)
(2) DV cases should not be returned to KCC for forwarding to another post as this delay may disadvantage the applicant, resulting in loss of opportunity for the visa interview and visa issuance if there is retrogression in the rank-order number.
See 9 FAM 502.6 here.
https://fam.state.gov/FAM/09FAM/09FAM050206.html
9 FAM 502.6
DIVERSITY IMMIGRANT VISAS
(CT:VISA-175; 09-13-2016)
(Office of Origin: CA/VO/L/R)
9 FAM 502.6-1 RELATED STATUTORY AND REGULATORY AUTHORITIES
9 FAM 502.6-1(A) Immigration and Nationality Act
(CT:VISA-1; 11-18-2015)
INA 202(b) (8 U.S.C. 1152(b)); INA 203 (8 U.S.C. 1153); INA 204(a)(1)(I)(ii) (8 U.S.C. 1154(a)(1)(I)(ii)); INA 212(a)(5) (8 U.S.C. 1182(a)(5)); INA 212(a)(6)(C) (8 U.S.C. 1182(a)(6)(C)); INA 212(e) (8 U.S.C. 1182(e)); INA 213(a) (8 U.S.C. 1183(a)); INA 221(g) (8 U.S.C. 1201).
9 FAM 502.6-1(B) Code of Federal Regulations
(CT:VISA-1; 11-18-2015)
22 CFR 40.205; 22 CFR 42.33.
9 FAM 502.6-1(C) Public Law
(CT:VISA-1; 11-18-2015)
Section 131 of the Immigration Act of 1990 (Public Law 101-649); the Nicaraguan Adjustment and Central American Relief Act (NACARA - Public Law 105-100); Section 1 of Public Law 105-360; Section 636 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208); the Assistance for International Malaria Control Act (Public Law 106-570); USA PATRIOT Act (Public Law 107-56).
9 FAM 502.6-2 DIVERSITY IMMIGRANTS OVERVIEW
(CT:VISA-175; 09-13-2016)
a. Section 131 of the Immigration Act of 1990 (Public Law 101-649) amended INA 203 to provide for a new class of immigrants known as “diversity immigrants” (DV immigrants). The amendment established an annual numerical limitation of 55,000 DV immigrants effective for fiscal year 1995 and thereafter. Aliens who are natives of countries determined by the Attorney General (now Secretary of Homeland Security) through application of a mathematical formula specified in INA 203(c)(1)(A) to be “low admission” countries may qualify for immigration under this limitation. INA 203(c)(1) requires a separate entry for each participating alien for each fiscal year.
b. INA 203(c)(1)(A) requires the Secretary of Homeland Security to determine the actual number of immigrant admissions from each foreign country for the previous five year period. The formula identifies both high and low admission regions and high and low admission foreign states. A greater share of the available visa numbers goes to low admission regions. High admission states are excluded from the program.
c. In November 1997, Congress passed Public Law 105-100, the Nicaraguan Adjustment and Central American Relief Act (NACARA). With NACARA, Congress stipulated that beginning with the 1999 Diversity Immigrant Visa Program, and as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas can be made available for use under the NACARA program.
9 FAM 502.6-3 DIVERSITY VISA ELIGIBILITY
(CT:VISA-175; 09-13-2016)
a. Requirements for Diversity Immigrant Program: To qualify under INA 203(c) as a diversity immigrant, the following requirements must be met:
(1) The alien must be a native of, or be chargeable to, a country eligible for that year's DV program (see 9 FAM 502.6-3 paragraph b); and
(2) The alien must have at least a high school education or equivalent (see 9 FAM 502.6-3 paragraph c); or
(3) 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 that requires at least two years of training or experience (see 9 FAM 502.6-3 paragraph d).
b. Qualifying Diversity Visa Countries
(1) Formula for Identifying Qualifying Diversity Countries:
(a) The Secretary of Homeland Security is required to determine total admissions of preference and immediate relative (IR) immigrants over the most recent five-year period for which statistics are available, worldwide total, by region, and by individual foreign state. Using these figures, the Secretary of Homeland Security is to identify both high admission regions and high admission foreign states. A high admissions region is a region whose admission total is greater than one-sixth of the worldwide total. A foreign state whose admissions total is greater than 50,000 is a high admission foreign state.
(b) Using available estimates, the Secretary of Homeland Security must then determine the population of each of the six regions (excluding the population of any high admission foreign state) and use those totals to determine the apportionment of the 55,000 worldwide DV limitations. Quotas for the six regions will be established. Natives of these regions compete for that portion of the total established for that region. Any unused portion of a regional quota is distributed proportionally among the other regions. High admission states are excluded entirely from the apportionment. No one country’s nationals may receive more than 7% of the available visas in any one year.
(2) Qualifying Countries: Natives of high admission counties are not eligible to register for the DV program unless they qualify based on chargeability to a DV program country. The Department of Homeland Security will determine annually the list of ineligible countries. The list is subject to change annually.
(3) Native: Native means a person born in a DV program county. An individual may be able to participate in the DV program because of specific family ties or personal situations by "charging" to another country. See 9 FAM 502.6-4 paragraph a(2) for additional information on chargeability.
c. High School Education or Equivalent:
(1) You must adjudicate the applicant’s qualifications under this requirement. In order to enter or apply for the DV program, the alien need not prove that this requirement is met. The applicant must, however, meet this requirement by the end of the fiscal year in which selected and present evidence of completion to be found eligible for a visa. If the applicant does not meet the requirement at the time of the interview, you should refuse the case 5A. If the applicant presents evidence of completion of high school before the end of the fiscal year, and visas are still available for the region, you may overcome the refusal and issue the visa.
(2) The Department’s Interpretation of the Term “at Least a High School Education or its Equivalent” Means Successful Completion of at least a:
(a) Twelve-year course of elementary and secondary study in the United States; or
(b) Formal course of elementary and secondary education comparable to completion of 12 years elementary or secondary education in the United States. Because a United States high school education is sufficient in itself to qualify a student to apply for college admission, in order for a foreign education to be equivalent to a United States education, it should be sufficient to allow a student to apply for college admission without further education. Vocational degrees that are not considered a basis for further academic study will not be considered equivalent to United States high school education.
(3) Education Requirements: We interpret the phrase “at least a high school education or its equivalent” to apply only to formal courses of study. Equivalency certificates (such as the G.E.D.) are not acceptable. To qualify, an alien must have completed a 12-year course of elementary and secondary education in the United States or a comparable course of study in another country. Evidence might consist of a certificate of completion equivalent to a United States diploma, school transcripts, or other evidence issued by the person or organization responsible for maintaining such records, which specify the completed course of study.
(4) Education Evaluation:
(a) Each post needs to determine what course of study is equivalent to a high school education or its equivalent in the host country. Previously, posts were provided with a guidebook that provided information on high school equivalency country by country. That guidebook ("Foreign Education Credentials Required”) is no longer in print and is not available in updated format. You should not rely on it for your evaluation of high school credentials. You should make use of the resources found in your Public Diplomacy (PD) section to determine comparable courses of study in the host country that would meet the definition of a high school education or its equivalent. Contacts in the host country’s Ministry of Education may also be of help. If you have questions about certificates and diplomas, you should consult with your public diplomacy section, including Education USA advisors and locally engaged staff, as they are valuable resources in evaluating local education systems. PD personnel advise prospective students and evaluate their educational backgrounds and have experience with and knowledge of local schools. To determine the authenticity of any particular document, you will need to work with your Fraud Prevention staff to develop expertise in making that determination. Interviewing officers may wish to consult with other posts when in doubt about the authenticity of educational certificates from countries outside their consular district.
(b) A DV refusal must be based on evidence that the alien did not in fact obtain the required degree and not on your assessment of the alien's knowledge level. You may not administer an exam, either oral or written, to test an applicant’s basic knowledge in order to determine whether they have the equivalent of a U.S. high school education. You may not refuse a DV applicant solely on the basis of your analysis of the applicant's basic knowledge. Doubts about the applicant’s claimed educational level raised by your interview, however, may lead you to investigate the authenticity of the educational credentials claimed by the DV applicant.
d. Work Experience:
(1) No Labor Certification: The labor certification requirement of INA 212(a)(5) does not apply to applicants applying as DV immigrants. Applicants, however, who do not meet the education requirement, must meet the work experience requirement of two years of experience in an occupation which requires at least two years training or experience within the five-year period immediately prior to application, or be able to meet the requirement prior to the end of the fiscal year in which the applicant was selected. If the applicant does not meet this requirement at the time of the interview, you should refuse the case 5A. If the requirement is met before the end of the fiscal year and visas are still available for the region, you may overcome the refusal and issue the visa.
(2) Work Experience Evaluation: If an applicant does not have the equivalent of a high school education, you must evaluate their work experience. You must use the Department of Labor’s O*Net OnLine database to determine qualifying work experience (see paragraph (3) below.) All applicants qualifying for a DV on the basis of their work experience must, within the past five years, have two years of experience in an occupation that is classified in a Specific Vocational Preparation (SVP) range of 7.0 or higher.
(3) Using O*Net Online to Determine Work Experience:
(a) Instructions for Determining the Applicant's Specific Vocational Preparation (SVP) Rating:
(i) Log on to the Department of Labor’s O*Net OnLine website;
(ii) Click on the “Find Occupations” link;
(iii) On the “Find Occupations” screen, enter occupational title, such as, “mason, “painter,” “hairdresser,” etc., and click on the “Go” button. A search results page appears with a list of various occupation titles that relate to whatever job title was entered. Click on the link in the “Occupation” column for the title that seems appropriate for the DV applicant's job experience;
(iv) A brief description for the job title will appear followed by more detailed data covering the following areas: tasks, knowledge, skills, abilities, work activities, work context, job zone, interests, work values, related occupations, and wages and employment.
(b) What SVP Range Qualifies an Applicant's Job Experience for the DV Program? The O*Net Online database groups job experience into five "job zones." Zone 4 includes all occupations for which more than two years experience on the job is required. An occupation in Job Zone 4 has an SVP range of 7.0 to < 8.0 (7.0 to less than 8.0) and will qualify an applicant for the DV program. Thus, all applicants qualifying for a DV on the basis of their work experience must, within the past five years, have two years of experience in an occupation that is classified in a SVP range of 7.0 or higher (i.e., an occupation in Job Zone 4).
e. Principal Registrants Under Age 18: Although there is no minimum age for submission of an entry, the requirement for a high school education or work experience will effectively disqualify most persons under age 18.
9 FAM 502.6-4 DIVERSITY VISA PROCESSING
(CT:VISA-175; 09-13-2016)
a. Diversity Visa Chargeability, Numerical Control:
(1) DV Numerical Control: The Department will have centralized control of the DV numerical limitation. (See 9 FAM 503.4.)
(2) DV Chargeability: As stated in the regulatory definition, the normal rules of chargeability apply to INA 203(c) immigrants. Many applicants may seek beneficial treatment from the rules of cross chargeability, as in the following examples:
(a) A spouse or child born in a country that is not among those for which DVs are available (a non-qualifying country) may use the principal registrant’s chargeability when they are accompanying or following-to-join;
(b) A child born in a non-qualifying country in which neither parent was born nor resident at the time of the child’s birth, may claim the birthplace of either parent;
(c) A principal registrant born in a non-qualifying country and the spouse who was born in a qualifying country may be issued DVs, provided the relationship was established prior to submitting the entry. In such instances, however, both applicants are considered principal applicants for the purpose of cross-chargeability and must be issued visas and apply for admission to the United States simultaneously.
(d) A principal registrant born in a country that is among those for which DVs are available may derive a more favorable foreign state of chargeability from an accompanying alien spouse. For example, a principal applicant from a DV eligible country from a high-admission region may claim a more favorable chargeability from a spouse, who is from a DV eligible country from a low-admission region, provided the relationship was established prior to submitting the DV entry. In such instances, however, both applicants are considered principal applicants for the purpose of cross-chargeability and must be issued visas and apply for admission to the United States simultaneously.
(3) Errors in Choice of Country of Chargeability: If the entrant chooses the wrong country of chargeability at the time of the initial entry, the error will generally be disqualifying. However, if a DV applicant chooses a country of chargeability on the DV entry form that is within the same geographic region (one of the six) as the correct country of chargeability, and you determine that the applicant gained no benefit from his or her error, and there are no fraud concerns, you may continue processing the application using the correct country of chargeability in IVO. Post may need to obtain additional DV number(s) for the correct country of chargeability from the Immigrant Visa Control and Reporting Division (CA/VO/DO/I), as necessary, via a VISAS FROG message (see 9 FAM 604.2-1).
b. Diversity Visa Entries and Applications:
(1) Diversity Visa Entries – Overview:
(a) General Instructions for DV Entries:
(i) Each year, the Department of State will publish rules for the next fiscal year's DV program in the Federal Register. Rules for a DV program in any fiscal year stipulate what information must be included on the DV electronic entry form, such as name, photo requirement, etc., as well as other requirements for the program and the DV lottery registration website. This electronic entry form is considered the petition required by 22 CFR 42.33 and INA 203(c).
(ii) We will establish a period for the submission of DV entries of at least 30 days each fiscal year in which the lottery will be conducted. To ensure wide dissemination of the information both abroad and in the United States, we will provide timely notice of the program’s rules and the exact dates of the registration period through publication in the Federal Register and by other methods.
(b) Number of DV Entries:
(i) Only one entry by or for each person is allowed during each registration period. Submission of more than one entry disqualifies the applicant fromselection. Registrants may be disqualified at any time if more than one entry is discovered. Registrants may prepare and submit their own entries, or have someone submit the entry for them.
(ii) Spouses, if both are qualified, may each submit one entry. If either is selected, the other is entitled to derivative status.
(c) Meeting DV Submission Requirements: Only those entries which meet the eligibility requirements specified in 22 CFR 42.33(a)(1) and the petition requirements specified in 22 CFR 42.33(b)(1-2), and which are received during the time period specified by the Department for each fiscal year, will be considered for selection for immigrant visa processing under INA 203(c). Entries lacking the required information or photos will be rejected by the registration website or disqualified at a later date during processing by KCC or at post.
(2) Submitting DV Entries:
(a) Place of Registration: To be accepted for DV selection, entries must be submitted electronically during the specified registration period at the Department’s designated website.
(b) Photos: Photo specifications are detailed in the annual DV Bulletin and also posted at the Department’s “travel.state.gov‟ website. The Department will disqualify entries lacking the required photos or including invalid photos. You must review the entry photo at the time of adjudication. If you determine that the photo on the entry is not that of the applicant, you may pursue a refusal under INA 212(a)(6)(C). The entry photograph may be viewed through the CCD under the “Immigrant & Diversity” section, “DVIS Applicant” report or on the eDV button on the IVO system.
(c) Derivatives:
(i) Except as specified in paragraph ii below, entries must include the name, photograph, date and place of birth of the applicant’s spouse and all natural children, as well as all legally-adopted and stepchildren, who are unmarried and under the age of 21 as of the date of the initial entry. All derivatives must be included even if the registrant is no longer legally married to the child’s parent, and even if the spouse or child does not currently reside with the registrant and/or will not immigrate with such applicant. Married children and children 21 years or older cannot qualify for the diversity visa on the basis of a parent's application. Entries lacking all of the required information may be disqualified at any time prior to selection, after selection, or during the visa application process. Visa applications lacking all required information will be refused.
(ii) By regulation, registrants are not required to include spouses and children who are already U.S. citizens or Lawful Permanent Residents (LPRs) on the entry. A failure to include on the entry spouses and children who are in fact U.S. citizens or LPRs cannot be used as grounds for denial.
(iii) You must deny the applications of applicants who failed to list on their initial entries a spouse or all children who were required to be listed. This does not include a spouse or child who was acquired subsequent to submission of qualifying DV entry. The spouse of a principal alien, if acquired after the initial entry and prior to the principal alien’s admission, or the child of a principal alien, if the child was born after entry or is the issue of a marriage which took place after entry and prior to the principal alien’s admission to the United States, although not named on an application, is entitled to derivative DV status.
(iv) If post believes a case merits issuance despite apparent failure to comply with this instruction, post can submit the case for an advisory opinion to the Advisory Opinions Division (CA/VO/L/A).
(3) Diversity Visa Application Validity:
(a) Under INA 204(a)(1)(I)(ii)(II), persons selected as DV immigrants are entitled to apply for visa issuance only during the fiscal year for which the entrywas submitted. The application is valid until midnight of the last day of the fiscal year for which the petition was submitted. There is no carry-over of benefit into another year for persons who do not receive a visa during the fiscal year for which they registered. Following-to-join derivative visas must be issued during the same fiscal year as that of the principal beneficiary.
(b) Death of Principal Registrant: The death of the principal registrant must result in the automatic revocation of the application. Thereafter, derivative beneficiaries are no longer entitled to the DV classification.
c. KCC and DV Ranking:
(1) KCC Role:
(a) Selected DV entries are processed at KCC. KCC processes approximately 125,000 registrants (both principals and dependents) each year. KCC will notify posts of the number of registrants from their DV-processing area who were selected, broken down by country of residence. The Department will maintain a computer-generated master list of selected registrants. The list is not publicly released.
(b) KCC will hold the case until those selected are entitled to make a formal application for visa issuance at a U.S. consular office abroad, or an adjustment of status with DHS in the United States.
(2) DV Selection and Ranking:
(a) Entries received during the designated registration period for the DV program will be separated into one of six geographic regions. At the end of the registration period, a computer will randomly select numbers. All entries successfully received during the registration period will have an equal chance of selection within the respective region.
(b) The selected entries for each region will have a rank order number consisting of two letters followed by eight digits, i.e., AF00000925. Within each region, the first entry randomly selected will have a rank order number 00000001, the second entry selected will be 00000002, etc. The letter codes are:
AF
Africa
AS
Asia
OC
Oceania
EU
Europe
NA
North America
SA
South America, Central America and the Caribbean
(c) Each month visa numbers will be allocated to applicants who are within the applicable rank cut-off for that month and have been reported documentarily qualified. Applicants are considered documentarily qualified when KCC confirms that the applicant has properly completed and submitted the DS-260.
d. Processing Diversity Visa Cases:
(1) Instruction Package for Immigrant Visa Applicants:
(a) If a case is selected for additional processing, the entrant will be notified electronically via Entrant Status Check, and instructed to complete Form DS-260, Online Application for Immigrant Visa and Alien Registration.
(b) Each visa applicant must follow the electronic instructions and electronically submit Form DS-260 to KCC. As soon as KCC has reviewed the DS-260 and made any required updates to the electronic DVIS record, the applicant will be considered documentarily qualified. In order to avoid potential delay in the scheduling of DV applicants, KCC does not collect any additional information or forms. KCC may ask applicants to update Form DS-260 if information is missing but will not delay scheduling if waiting for a response.
(2) Immigrant Visa Appointment Package: KCC will schedule an appointment for a documentarily qualified applicant when his or her regional lottery rank number is about to become current. KCC will notify scheduled applicants by e-mail that they should log into the Entrant Status Check website to obtain their appointment letters and further instructions. When scheduled applicants log into the ESC, they will be referred to the pre-interview instructions on the Diversity Visa Process website. On that website, applicants will be able to review post-specific instructions, and any additional required forms.
(3) Creation of Immigrant Visa File: KCC will review each DS-260 submission as they are received, and will update the electronic record in DVIS as required. In cases where a potentially disqualifying factor has been identified at KCC during case creation, a remark will be entered at the top of the DS-260 for the interviewing consular officer's information. KCC has no adjudicatory role, and so cannot determine an applicant's eligibility or qualification for the visa. Remarks are intended as additional information for officers to review as part of the adjudication process.
e. Diversity Visa Fee: There is no fee for submitting the initial entry for the DV program. However, those registrants who are selected and apply for DV immigrant visas will be required to pay a DV Lottery Fee at the time of the formal interview.
(1) Collection of Fee: Section 636 of Public Law 104-208, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, authorized the Department to collect a fee for the processing of DV immigrant visas. The DV Lottery Fee incorporates the standard IV processing fees, including the IV Application Fee and the IV Security Surcharge, and is specified in the Schedule of Fees for Consular Services. Posts must collect the DV Lottery Fee at the time of the applicant’s formal interview.
(2) Processing Cases to Conclusion: We can appreciate posts' efforts to prescreen applications allowing unqualified applicants to withdraw their applications to avoid paying the required fees. Nevertheless, like all other visa applications, it is important to process such cases to conclusion and not to simply allow the candidate to withdraw the application. Instances have arisen where DV winners who were advised not to make an application at a post abroad have then entered the United States and requested adjustment of status processing at DHS.
f. Diversity Visa Ineligibility Grounds:
(1) Applicants who establish that they qualify for DV immigrant visa classification are subject to all grounds of ineligibility specified in the Immigration and Nationality Act other than the labor certification requirements. There are no special provisions for a waiver of any ground of visa ineligibility other than those ordinarily provided in the INA.
(2) Refusals for Unqualified Applicants: Any applicant for a DV visa who fails to establish that they possess the requisite qualifications, including a valid entry for participation in the DV program, is ineligible under INA 212(a)(5)(A)(i). It is not appropriate to refuse a DV applicant under INA 212(a)(5)(A)(i) when a fraud investigation is needed before determining whether an applicant is qualified for a DV (e.g., if you suspect that the DV applicant does not possess the requisite education or work experience or if you suspect that the DV derivative applicant does not possess the requisite relationship to the DV principal applicant). In those cases, you must refuse the application under INA 221(g) pending the outcome of a fraud investigation.
(3) INA 221(g) Refusals:
(a) Interviewing officers should verbally stress the importance of submitting the requested information, preferably within the same month. When applicable, officers should advise applicants that failure to return promptly may mean that visa numbers will no longer be available and the applicant may miss the opportunity to obtain a visa.
(b) Posts must prepare a stamp to be placed on refusal letters to DV applicants refused under 221(g), with the following message:
Attention: Under no circumstances can a visa be issued or an adjustment of status occur in your case after September 30, ____.
Very important: Because of the limited number of visas that may be issued under this program, visas may cease to be available even before this date. This is especially true the closer to September 30 an application or re-application is made.
(c) Cases that are in INA 221(g) refusal status at the end of the fiscal year may be left in that status. You do not need to enter an additional refusal (such as INA 212(a)(5)(A)(i)) to close the case.
(4) Public Charge: While many categories of immigrants must submit the legally binding Form I-864, Affidavit of Support Under Section 213A of the Act, the DV category is not one of them. You can consult 9 FAM 302.8-2(B)(12)-(14) for standards of processing public charge issues in immigrant visa cases that do not involve the I-864, Affidavit of Support Under Section 213A of the Act.
(5) Waivers: Unlike applicants eligible for immigrant visas under other programs involving random selection, there are no special provisions for a waiver of any ineligibility grounds for DV applicants. The regular ineligibility waiver provisions of the INA, including INA 212(e), still apply.
g. Following-to-Join Applicants: DV applicants are informed in the electronic notification of how to adjust status to lawful permanent residence in the United States. A principal applicant who has adjusted status may file Form I-824, Application for Action on an Approved Application or Petition with USCIS requesting DHS send the Form I-824, upon its adjudication, to consular posts as verification of his or her LPR status. Upon receipt of this information, posts must send any derivative family members instructions for accessing the Form DS-260, Online Application for Immigrant Visa and Alien Registration, and the Packets for Immigrant Visa Processing (see 9 FAM 504.4-2(A)(2)) for completion. Post must notify the KCC of the adjustment of the principal applicant so that the electronic case can be modified and transmitted to post to allow visa issuance to the derivative family members. Proof of the principal applicant’s adjustment of status must be provided to the KCC. Posts can then process these cases to conclusion, obtaining additional DV numbers from the Immigrant Visa Control and Reporting Division (CA/VO/DO/I,) as necessary, via VISAS FROG messages (see 9 FAM 601.7-6). Spouses and children who derive status from a DV application can only obtain visas in the DV category during the same Fiscal Year in which the principal applicant was admitted or adjusted status. Applicants cannot follow-to-join after the end of the Fiscal Year.
h. Transfer of DV Cases:
(1) Posts are to follow normal IV case transfer procedures when a DV applicant asks that his or her case be transferred to a different post for processing. (See 9 FAM 504.4-9.)
(2) DV cases should not be returned to KCC for forwarding to another post as this delay may disadvantage the applicant, resulting in loss of opportunity for the visa interview and visa issuance if there is retrogression in the rank-order number.
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