UNCLASSIFIED (U)

9 FAM 502.6

(U) Diversity Immigrant Visas

(CT:VISA-1188;   12-21-2020)
(Office of Origin:  CA/VO)

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

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

(CT:VISA-1082;   06-05-2020)

(U) INA 202(b) (8 U.S.C. 1152(b)); INA 203 (8 U.S.C. 1153); INA 204(a)(1)(I) (8 U.S.C. 1154(a)(1)(I)); 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-1188;   12-21-2020)

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-1188;   12-21-2020)

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 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)  (U) Qualifying Countries:  Natives of high admission countries 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 country.  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 DV applicant’s qualifications under this requirement.  In order to enter the DV lottery or apply for a visa under the DV program, the alien need not prove that this requirement is met.  The DV 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, then the applicant is not eligible as a diversity immigrant under INA 203(c)(2) and the proper basis for refusing the case is under INA 203(c).  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, the appropriate basis for refusal is INA 221(g).  You may request the applicant to provide additional information.  If the applicant is unable to credibly prove the education equivalency requirement to your satisfaction, the appropriate basis for refusal is INA 203(c). 

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. However, applicants 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 visa 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, then the applicant is not eligible as a diversity immigrant under INA 203(c)(2).  Accordingly, the proper basis for refusing the case is under INA 203(c). 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.

(a)  (U) You must be satisfied that the applicant has met the work experience requirement.  If you are not satisfied that the applicant has met the work experience requirement, but you believe the applicant may be able to provide additional evidence that would satisfy the applicant's burden, INA 221(g) is the appropriate ground for refusal.  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 received or experience of the applicant; resumes; or examples of previous work product.  If the applicant is unable to credibly prove the work experience requirement to your satisfaction, the appropriate basis of refusal is INA 203(c).

(2)  (U) Work Experience Evaluation:  To evaluate an applicant's 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 five years preceding the date of their visa application, have two years of experience in an occupation that is classified in a Specific Vocational Preparation (SVP) range of 7.0 or higher.

(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 Entrants 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-1188;   12-21-2020)

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 DV entrants 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 entrant’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 entrant 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)  (U) A principal entrant 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(b) stipulate what information must be included on the DV electronic entry form, such as entrant's name; date and place of birth; spouse's and children's names, dates, and places of birth; photo requirements, etc.  Entrants may prepare and submit their own entries or have someone submit the entry for them.  The regulations at 22 CFR 42.33 include other requirements for the DV 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 per INA 204(a)(1)(I)(i).  Submission of more than one entry disqualifies the applicant from selection.  Entrants may be disqualified at any time if more than one entry is discovered.  If the discovery is not made until when the visa application is being adjudicated, the appropriate basis for refusal is INA 204(a)(1)(I)(i). 

(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:  Entries appearing on their face to meet the 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 the relevant fiscal year, will be considered for selection for immigrant visa processing under INA 203(c).  Entries clearly lacking the required information or photos should not be selected; however, if you determine that a visa applicant was selected on the basis of an entry that did not comply with regulations promulgated pursuant to INA 204(a)(1)(I)(iii), the appropriate basis for refusing the application is INA 204(a)(1)(I)(iii). 

(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: 

(i)     (U) 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 visa adjudication.  If you determine the entry photo does not meet specifications published in the program year’s DV Bulletin, then the applicant would not be eligible for the DV for failure to comply with regulations promulgated pursuant to INA 204(a)(1)(I)(iii) and the appropriate basis for refusal would be INA 204(a)(1)(I)(iii).  If you determine that the photo on the entry is not that of the applicant, you should refuse under INA 204(a)(1)(I)(iii) and consider whether a refusal under INA 212(a)(6)(C)(i) is also appropriate (see 9 FAM 502.6-4 paragraph (f)(4)).

(ii)    Unavailable     

(iii)    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 entrant'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 entrant is no longer legally married to the child’s parent, and even if the spouse or child does not currently reside with the entrant and/or will not immigrate with such entrant.  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.  No visa may be issued if the underlying entry lacked the required information or photo, as the entrant failed to comply with regulations prescribed pursuant to INA 204(a)(1)(I)(iii).

(ii)    (U) By regulation, entrants 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 does not affect the validity of the entry and does not constitute grounds for visa denial.

(iii)    (U) Applicants who failed to list properly on his or her DV lottery entry a spouse or child who was required to be listed are ineligible for a DV for failure to comply with regulations prescribed pursuant to INA 204(a)(1)(I)(iii).  The appropriate basis of refusal is INA 204(a)(1)(I)(iii).  This does not include a spouse or child who is a U.S. citizen or LPR, or 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 (because the spouse/child relationship did not exist at the time), is entitled to derivative DV status.  Beginning with the DV2020 applications and thereafter, 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 is ineligible for a DV for failure to comply with regulations prescribed pursuant to INA 204(a)(1)(I)(iii).  If post believes a case merits issuance despite apparent failure to comply with the DV entry instructions, post must request an AO from L/CA after refusing the case under INA 221(g).

(iv)   Unavailable    

(d) (U) Passport Requirement: Starting with entrants in DV2021 (opened for entry registration in October 2019), each DV entry must include the passport number, country or authority of issuance, and expiration date for the principal entrant’s valid, unexpired passport.  There are only limited exemptions from this requirement, described in paragraph (e) below. 

(i)     (U) This requirement applies to the principal entrant only, not to derivatives. 

(ii)    (U) Any applicant who did not list valid passport information on his or her DV lottery entry and cannot explain, to your satisfaction, why they qualify for one of the exemptions described on the form and in paragraph (e) of this section is not eligible for a DV.  The appropriate basis of refusal is INA 204(a)(1)(I)(iii). 

(iii)    (U) If there is a change in the passport numbers provided between the time of DV entry and visa application, you must determine whether the passport number included on the entry was valid when the DV entry was submitted.  To do so, you may ask the applicant to explain the discrepancy in order to determine whether the passport number included on the entry was valid.  KCC will review passport numbers and, if a discrepancy is found or an exemption is claimed, will enter remarks at the top of the DS-260 and provide an opportunity for applicants to submit a written explanation of the discrepancy to KCC during document collection.  The DV website informs any selectee who does not fulfill the passport requirement (and for whom no exemption applies) that they may want to consider not pursuing a visa application as they may not be eligible.  Travel.state.gov advises all selectees that, in such cases, they will not receive refunds of any visa application fees paid for themselves and their family members.  Some selectees may choose not to move forward with a visa application knowing they are likely to be refused; others may choose to still apply for a visa.  Many applicants have expressed frustration in the past when they went to great expense to apply for their visas only to be refused.  Travel.state.gov provides selectees with information to make an informed decision about whether to apply in light of their particular circumstances, while recognizing KCC’s administrative, non-adjudicatory role in the visa process.

(iv)   Unavailable      

(e)  (U) Exemptions from the Passport Requirement: The Department of State’s regulations provide for three limited exemptions from the passport requirement: individuals who are stateless; nationals of a Communist-controlled country who are unable to obtain a passport from the government of the Communist-controlled country; and beneficiaries of individual waivers approved by the Secretary of Homeland Security and the Secretary of State, pursuant to 22 CFR 42.2(g)(2).  All three exemptions apply only to individuals who are unable to obtain a passport.  A delay in obtaining a passport, whether or not the delay was within the applicant's control, is not a basis to qualify for an exemption.  If an applicant indicates that he or she does not have a passport due to a delay in issuance, the applicant does not qualify for the exemption.  

(i)     (U) For guidance on assessing statelessness, see 9 FAM 201.2-4 paragraph (1). 

(ii)    (U) If an applicant claims an exemption to the passport requirement as a national of a communist-controlled country who is unable to obtain a passport from the government of the communist-controlled country, he/she must demonstrate to your satisfaction that he/she is unable to obtain a passport.  For additional guidance, see 9 FAM 201.2-4 paragraph (2).

(iii)    (U) If an applicant claims that the passport requirement may be waived by the Secretary of Homeland Security and the Secretary of State, you must request evidence that he or she is unable to obtain a passport.  If the applicant provides acceptable evidence to establish that he or she is unable to obtain a passport you must request concurrence from the VO/F CBP liaison before issuing the visa.  Acceptable evidence may include:

        (A) (U) Evidence of a previous visa issued to the applicant on Form DS-232 (Note:  You must verify in the CCD the circumstances of the previous visa application. If the visa was issued on Form DS-232 for some reason other than the applicant's inability to obtain a passport, this is not acceptable evidence that the applicant's entry was correct.);

        (B) (U) Evidence of Form I-193 approved by USCIS; or

        (C) (U) Evidence that the applicant has been granted refugee status in a country other than his or her country of nationality on the basis of persecution by the government of his or her country of nationality, indicating that the applicant is unable obtain a passport from that government without experiencing further harm.

(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 a visa only during the fiscal year for which the entry was submitted.  The DV entry (which serves as the petition required pursuant to INA 204(a)(1)(I)) 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 were not issued a visa during the fiscal year for which they registered.  Following-to-join derivative visa applicants may be issued a diversity visa only during the same fiscal year as that of the principal beneficiary.

(b)  (U) Death of Principal Entrant:  If the principal entrant dies, the DV entry must be revoked.  Thereafter, derivative beneficiaries are no longer entitled to the DV classification as there is no principal visa applicant.

c.  (U) KCC and DV Ranking:

(1)  (U) KCC Role:

(a)  (U) Selected DV entries are processed at KCC.  KCC processes approximately 125,000 entrants (both principals and dependents) each year.  KCC will notify posts of the number of entrants 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 entrants. The list is not publicly released. 

(b)  (U) KCC will hold the case until those selected are entitled to make a formal application for a visa at a U.S. consular office abroad, or apply for an adjustment of status with DHS/USCIS 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" for purposes of visa appointment scheduling 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 DV entry 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 and flag for consular officers any apparent inconsistencies or potential fraud indicators.  Only after all scanned documents are received and reviewed will the case be considered "documentarily qualified" for purposes of visa appointment scheduling. 

(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 entrants 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      

(3)  Unavailable    

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 under INA 212(a)(5)(A).  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 one or both of the following sections of the INA:

(a)  (U) INA 203(c) for failing to fulfill the education and work experience requirement;

(b)  (U) INA 204(a)(1)(I), which is broken-down into three subsections: 

(i)     (U) INA 204(a)(1)(I)(i) provides that only one petition may be filed by an alien per fiscal year. If an alien files more than one petition during the fiscal year, all such petitions shall be voided. Therefore, if a DV entrant submitted more than one petition during a single fiscal year, he or she would not be eligible for a visa under section (i).

(ii)    (U) INA 204(a)(1)(I)(ii) provides that DV entrants selected may receive such visa only through the end of the specific fiscal year for which they were selected. Therefore, if a DV entrant cannot show he or she is eligible for a DV before the end of the fiscal year, he or she would not be eligible for a visa under section (ii).

(iii)    (U) INA 204(a)(1)(I)(iii) provides that a petition shall be in such form as the Secretary of State may by regulation prescribe and shall contain such information and be supported by such documentary evidence as the Secretary of State may require.  Therefore, failure to comply with regulations promulgated pursuant to this INA provision will render an applicant ineligible for visa under section (iii).

      (U) Note: Examples of failing to comply with regulations may include: failing to provide valid passport information on the DV entry, as described above at 9 FAM 502.6-4 paragraph (f); failing to comply with the photograph requirements described above at 9 FAM 502.6-4 paragraph b(2)(b); failing to list properly the alien's spouse or child on the entry, if applicable; or providing inaccurate information on the DV entry by including an individual on the DV entry who was not a spouse or child at the time of entry.

(3)  Unavailable      

(4)  Unavailable    

(5)  (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 refused pursuant to INA 221(g) may remain refused pursuant to INA 221(g) at the end of the DV fiscal year as INA 221(g) is a final refusal.   You do not need to enter an additional refusal pursuant to INA 204(a)(1)(I)(ii)(II).  However, if an applicant provides additional supporting documentation to try to overcome a prior INA 221(g) refusal, then a refusal pursuant to INA 204(a)(1)(I)(ii)(II) would be appropriate as DV immigrants cannot be issued a DV after the fiscal year for which the entry was submitted. 

(6)  (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.  Although DV applicants are not 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.  See 9 FAM 302.8 for guidance on public charge.

(7)  (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). 

(8)  (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) Refusal Letter for DV Applicant Denials Under INA 203(c) and/or 204(a)(1)(I): You must use the following refusal letter to inform a DV applicant of a refusal under INA 203(c) and/or 204(a)(1)(I):

Dear Applicant:

This is to inform you that you have been found ineligible for a diversity visa pursuant to section 203(c) and/or section 204(a)(1)(I) of the Immigration and Nationality Act.  The information contained in the following paragraph(s) marked with "X" pertain(s) to your Diversity Visa application. Please disregard the unmarked paragraphs:

__ Section 203(c): Failure to fulfill either the education or the work experience requirement.

__ Section 204(a)(1)(I)(i): Submitting more than one DV entry during the fiscal year in which you were selected.

__ Section 204(a)(1)(I)(ii): Unable to establish eligibility for a DV before the end of the fiscal year in which you were selected.

__ Section 204(a)(1)(I)(iii): Failure to comply with DV entry regulations. 

__ Failure to provide valid passport information on the DV entry.

__ Failure to comply with the photograph requirements.

__ Failure to list properly your spouse and/or child(ren) on the DV entry.

__ Providing inaccurate information on your DV entry by including an individual on the
    DV entry who was not a spouse or child at the time of DV lottery entry.

__ Other failure to comply with the regulations:____________________

 

Sincerely,

Consular Officer


h. (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.  Derivative applicants cannot follow-to-join after the end of the Fiscal Year in which the principal applicant was admitted or adjusted status.

i.  (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.

UNCLASSIFIED (U)