AILA’s Statement on Legislation Preserving DV Eligibility in the Face of Processing Delays

American Immigration Lawyers Association

February 12, 2004

Contact: Judith Golub
(202) 216-2403
or Marshal Fitz
(202) 216-2437

Statement of the American Immigration Lawyers Association

The American Immigration Lawyers (AILA) applauds Senator Saxby Chambliss (R-GA), Chair of the Senate Judiciary Subcommittee on Immigration, Border Security, and Citizenship, for introducing legislation that would redress a critical problem in the Diversity Visa (DV) program, a problem that has called into question in the starkest possible terms the fairness of our system. We call on Congress to pass this vitally needed legislation this year.

Individuals who win the DV visa lottery program are provided a number and, when their number becomes current, are eligible to apply for permanent residence. However, the law presently requires that applicants not only file their applications in a timely manner, but also be approved during the fiscal year in which they file. If approval is delayed for any reason, including administrative backlogs, the person loses the opportunity to benefit from the program. Thus, those people who have done everything our government requires them to do, through no fault of their own, ultimately are unable to become permanent residents under the DV Program. Gross inaction by our government is often the cause of the problem. Such was the situation Charles Nyaga of Georgia faced. Mr. Nyaga, originally from Kenya, applied (along with his wife) in October, 1997 for the DV program, and completed his application by February 1998. However, the Immigration and Naturalization Service (INS) failed to complete the processing as mandated. This failure resulted in the Nyagas' application being denied. They now face deportation from the U.S.

Senator Chambliss's legislation would address this unfair situation. His legislation provides welcome relief to people including Mr. Nyaga and others similarly situated who, during fiscal years 1998 through 2003, were unable to obtain permanent residence under the DV program because the fiscal year ended before their cases were approved. The bill authorizes such individuals to reopen their cases and continue processing as long as diversity visas for the fiscal year in which they filed remain available. Mr. Nyaga is "very excited to see the positive efforts of Senator Chambliss and the other members of the Senate who support helping those persons such as myself who have been deprived of the legal benefit of permanent residence by the inaction of the former Immigration Service."

Many applicants for permanent residence face significant delays in the processing of their petitions and applications. These delays have left DV visa applicants in limbo for many months at a time, jeopardizing their ability to obtain benefits under the program. Never was this more apparent than in Fiscal Year 2003, when timely filed applications of countless numbers of individuals languished.

Law abiding people who follow the rules, pay the required fees, and rely on our government's procedures should not be punished because of government inaction. We need to hold ourselves up to a higher standard and create and fund a process that works and works well.

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Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, and professional services. AILA advocates before Congress and the Administration and provides liaison with the DHS and other government agencies. AILA is an Affiliated Organization of the American Bar Association.

Cite as AILA Doc. No. 04021367.