9 FAM 502.6

(U) Diversity Immigrant Visas

(CT:VISA-705;   11-05-2018)
(Office of Origin:  CA/VO/L/R)

9 fam 502.6-1  (U) Related statutory and regulatory Authorities

9 FAM 502.6-1(A)  (U) Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

(U) 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)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 22 CFR 40.205; 22 CFR 42.33.

9 FAM 502.6-1(C)  (U) Public Law

(CT:VISA-1;   11-18-2015)

(U) 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  (U) Diversity Immigrants Overview

(CT:VISA-175;   09-13-2016)

a. (U) 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. (U) 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.  (U) 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  (U) Diversity Visa Eligibility

(CT:VISA-705;   11-05-2018)

a. (U) Requirements for Diversity Immigrant Program:  To qualify under INA 203(c) as a diversity immigrant, the following requirements must be met:

(1)  (U) 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)  (U) The alien must have at least a high school education or equivalent (see 9 FAM 502.6-3 paragraph c); or

(3)  (U) 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. (U) Qualifying Diversity Visa Countries

(1)  (U) Formula for Identifying Qualifying Diversity Countries:

(a)  (U) 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)  (U) 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 50,000 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)  (U) 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)  (U) 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.  (U) High School Education or Equivalent: 

(1)  (U) You must adjudicate the applicant’s qualifications under this requirement.  In order to enter or apply for a visa under 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 the satisfaction of the consular officer.  If the applicant does not meet the requirement at the time of the visa interview, you should refuse the case under INA 212 (a)(5)(A).  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.

(2)  (U) “At Least a High School Education or its Equivalent” Means Successful Completion of at least a:

(a)  (U) Twelve-year course of elementary and secondary study in the United States; or

(b)  (U) Formal course of elementary and secondary education comparable to completion of 12 years of elementary and 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)  (U) Education Requirements:  “At least a high school education or its equivalent” in this context applies 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)  (U) Education Evaluation:

(U) The burden of proving that an applicant's education is equivalent to a high school degree is entirely on the applicant.  If the applicant does not satisfy you that the applicant's education is equivalent to a high school degree but you believe additional evidence could meet the applicant's burden, you should refuse the applicant under 221(g) and request the applicant to provide additional information.  If the applicant is unable to credibly prove the education equivalency requirement to your satisfaction, you should refuse the applicant 5A.

d. (U) Work Experience:

(1)  (U) 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.

(2)  (U) 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.

(a)  (U) You must be satisfied that the applicant has met the work experience requirement.  You may request that the applicant provide evidence that addresses this requirement; for example, letters from trainers or employers giving the name, address, and title of the trainer or employer, as well as a description of the training or experience of the applicant; resumes, examples of previous work product, etc. 

(3)  (U) Using O*Net Online to Determine Work Experience:

(a)  (U) Instructions for Determining the Applicant's Specific Vocational Preparation (SVP) Rating:

(i)     (U) Log on to the Department of Labor’s O*Net OnLine website;

(ii)    (U) Click on the “Find Occupations” link;

(iii)    (U) 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)   (U) 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)  (U) 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. (U) 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  (U) Diversity Visa Processing

(CT:VISA-705;   11-05-2018)

a. (U) Diversity Visa Chargeability, Numerical Control:

(1)  (U) DV Numerical Control:  The Department will have centralized control of the DV numerical limitation. (See 9 FAM 503.4.)

(2)  (U) 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)  (U) 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 he or she is accompanying or following-to-join;

(b)  (U) A child born in a non-qualifying country in which neither parent was born nor was a resident at the time of the child’s birth, may claim the birthplace of either parent;

(c)  (U) 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.

(d)  (U) 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)  Unavailable

b. (U) Diversity Visa Entries and Applications:

(1)  (U) Diversity Visa Entries – Overview:

(a)  (U) General Instructions for DV Entries:

(i)     (U) The regulatory requirements in 22 CFR 42.33 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.  The electronic entry form is considered the petition required by 22 CFR 42.33 and INA 204(a)(1)(I).

(ii)    (U) Each year, the Department establishes a period of at least 30 days in which individuals may enter the DV lottery to apply for a visa the next fiscal year and publishes a notice in the Federal Register.  The Federal Register notice includes the exact dates of the registration period. 

(b)  (U) Number of DV Entries:

(i)     (U) Only one entry by or for each person is allowed during each registration period.  Submission of more than one entry disqualifies the applicant from selection.  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)    (U) Spouses, if both are qualified, may each submit one entry.  If either is selected, the other is entitled to seek derivative status.

(c)  (U) 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)  (U) Submitting DV Entries: 

(a)  (U) 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)  (U) 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 the entry photo does not meet specifications published in the program year’s DV Bulletin, you should refuse the case under INA 212(a)(5)(A).  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). 

      Unavailable 

(c)  (U) Derivatives:

(i)     (U) 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 children 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)    (U) 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)    (U) You should deny the applications of any applicants who failed to list on his or her DV lottery entry a spouse or child who was required to be listed. This does not include a spouse or child who was acquired after the submission of the DV entry.  The spouse of a principal applicant, if acquired after the initial DV entry and prior to the principal applicant's admission to the United States, or the child of a principal applicant, if the child was born after the DV entry or is the child of a marriage which took place after the DV entry and prior to the principal alien’s admission to the United States, although not named on the DV lottery entry, is entitled to derivative DV status.  You should also deny the application of any applicant who included an individual on his or her DV entry who was not a spouse or child at the time of DV lottery entry.  If post believes a case merits issuance despite apparent failure to comply with the DV instructions, post must submit the case for an advisory opinion to the Advisory Opinions Division (CA/VO/L/A).

(iv)   Unavailable

(3)  (U) Diversity Visa Application Validity:

(a)  (U) 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 entry was 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)  (U) 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.  (U) KCC and DV Ranking:

(1)  (U) KCC Role:

(a)  (U) 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)  (U) 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)  (U) DV Selection and Ranking:

(a)  (U) 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)  (U) 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)  (U) 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. (U) Processing Diversity Visa Cases:

(1)  (U) Instruction Package for Immigrant Visa Applicants: 

(a)  (U) 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)  (U) Each visa applicant must follow the electronic instructions and electronically submit Form DS-260 to KCC.  After KCC receives the complete DS-260, KCC will contact applicants and instruct them to e-mail scanned copies of required supporting documents to kccdvdocuments@state.gov.  Required documents include: a copy of passport biographical pages for each applicant, birth certificates for all applicants, court/prison records (if applicable), police certificates from all required countries for applicants over 16, and military records (if applicable).  KCC will contact applicants to notify them of any missing or illegible documents.  Once all documents are received, KCC will prescreen for any apparent inconsistencies or potential fraud indicators.  Only after all scanned documents are received and reviewed will the case be considered documentarily qualified. 

(c)  Unavailable   

(2)  (U) 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)  Unavailable

e. (U) 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)  (U) 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)  Unavailable 

(3Unavailable

f.  (U) Diversity Visa Ineligibility Grounds:

(1)  (U) 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)  (U) 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)  (U) INA 221(g) Refusals:

(a)  (U) When applicable, you should advise applicants that failure to submit requested information promptly may mean that visa numbers will no longer be available and the applicant may miss the opportunity to obtain a visa.

(b)  (U) 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)  (U) Cases that are in INA 221(g) refusal status may be left in that status indefinitely.  You do not need to enter an additional refusal (such as INA 212(a)(5)(A)(i)) to close the case, since INA 221(g) is a final refusal.

(4)  (U) 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(C)(9)-(11) for standards for assessing possible INA 212(a)(4) ineligibility (public charge) in immigrant visa cases that do not involve the I-864, Affidavit of Supports Under Section 213A of the Act.  Although DV applicants are not automatically required to submit the I-864, consular officers must nevertheless apply a thorough ”totality of the circumstances” analysis for possible public charge in all DV cases.  The burden is on applicants to demonstrate that they are not likely to become primarily dependent on the U.S. Government (Federal, state, or local) for subsistence if they enter the United States.  If an officer determines that a DV applicant is likely to become a public charge, then the applicant should be refused under INA 212(a)(4)(A). 

(5)  (U) Material Misrepresentation: You should compare the Electronic Diversity Visa Entry Form, DS-5501, to the Immigrant Visa Electronic Application, DS-260, and consider the application of 212(a)(6)(C)(i) (6C1) for any case in which you find a material misrepresentation.  Not all misstatements on a DS-5501 satisfy the materiality requirement of 6C1, but the fact that the applicant did not personally sign and submit the DS-5501 does not serve to insulate the applicant from inadmissibility under 6C1, if you find that the applicant was aware of the action being taken by the third party in furtherance of the application.  For general guidance on INA 212(a)(6)(C)(i), see 9 FAM 302.9-4(B)(3). 

(6(U) Waivers:  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. (U) 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 504.3-2(B)).  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. (U) Transfer of DV Cases:

(1)  (U) 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)  (U) Do not transfer or return cases to KCC in the IVO software.  KCC's DV processing system cannot receive electronic case returns or transfers.  If you need KCC assistance with a case transfer, contact kccpostliaison@state.gov.