INS Guidance on Adjustment of Status for FY99 Diversity Cases

U.S. Department of Justice
Immigration and Naturalization Service

HQ 70/23.1
HQ 70/33
425 I Street NW
Washington, DC 20536

MEMORANDUM FOR:

REGIONAL DIRECTORS
DISTRICT DIRECTORS
OFFICERS IN CHARGE
OFFICE OF DISTRICT COUNSEL
SERVICE CENTER DIRECTORS

FROM:

William R. Yates
Deputy Executive Associate Commissioner
Office of Field Operations
Immigration Services Division

SUBJECT:

Rules for Adjustment of Status of Fiscal Year 1999 Diversity
Cases Including Section 245(i) Penalty Sum Situations

It has come to our attention that field offices need further guidance with the procedures to be followed in filing and adjudicating fiscal year 1999 (FY 99) Diversity winners who apply for Adjustment of Status (I-485). You will find copies of two memos attached which, unlike any other adjustment case that requires a visa number, allow the FY99 diversity winner to file the I-485 up to three months prior to the month in which the visa number is current by rank. These memos dated December 9, 1998, and February 24, 1999, are retroactive to October 1, 1998. They were issued after discussion with the Department of State to allow processing to begin early in view of the one-year availability of visas. Therefore, the provisions of these memos cover all FY99 diversity visa winners.

In view of these directives, the Service will use the following procedures when adjudicating these cases:

1. FILING REQUIREMENTS:

If a FY99 diversity lottery winner filed an I-485 within three months of the visa availability date, it should not be denied for unavailability of the visa number at the time of filing. This rule includes those FY 99 DV lottery cases that were filed in October 1998 or after. Although the Department of State Visa Bulletin clearly shows that because of the use of rank cut off, no visa number was available, many Service offices, as well as beneficiaries and private attorneys were unaware of this change in the visa issuance rules by the Department of State. To ameliorate this situation, FY 99 DV lottery cases filed in October 1998 should not be denied if the visa number became available at the time of adjudication. Where an I-485 was filed before the visa cut-off rank becomes current, field offices shall hold the case to wait for the availability of a visa number. This should include cases that were filed in excess of 90 days before the visa number becomes available.

2. MOTION TO REOPEN:

Where the Service has denied an I-485 because it was filed when the visa number was not available on the date of filing due to a mutual lack of understanding of the Department of State's rule regarding FY99 DV lottery rank cut-off, the Service will reopen the proceedings on its own motion and continue with adjudication on the merits using current visa number availability. No fee is charged for this government motion, and no additional fee should be charged for the I-485 or 245(i) filing.

Motions filed on behalf of the beneficiary in this situation should also be accepted without fee. No new fingerprints, FBI or CIA processing or interview should be necessary to adjudicate the I-485 since all checks are less than 15 months old. The time limit for reopening a case either by the government or by the beneficiary is 30 days. Therefore, the Service is tasked with reviewing any FY99 DV lottery cases which fall within the scope of this memorandum within 30 days form the date of this memorandum.

3. PENALTY SUM UNDER SECTION 245(i) OF THE ACT

Some FY99 diversity applicants filed the I-485 under section 245(i) more than three months prior to visa availability and paid the $1000 penalty sum with the first I-485, which is now denied based on visa number unavailability. These cases were not denied on the merits. In fact, the I-485 in these FY99 diversity cases was filed under a mutual mistake of law and fact. Therefore, the Service interprets the concurrent filing of the I-485A and the penalty sum as erroneous. The erroneous filing of the I-485A and the penalty sum does not consume the use of section 245(i) and the payment of the penalty sum. Therefore, the use of the penalty sum is preserved for adjustment of status consideration when a visa number is available. The applicant need not pay the penalty sum again.

In addition, there is confusion in the field regarding the ability of a beneficiary to re-use the section 245(i) penalty sum after the I-485 is denied for any reason.

The discussion of section 245(i) availability found in the April 14, 1999, and June 10, 1999 memos entitled Accepting Applications for Adjustment of Status Under Section 245(i) of the Immigration and Nationality relates only to the qualifying visa petition (I-130 or I-140) or labor certification. The visa petition or labor certification must be prima facie approveable and filed before January 15, 1998, in order to grandfather the alien and dependents for purposes of section 245(i) of the Act. Copies of these memos are attached.

Each grandfathered beneficiary, including those qualifying to ride as derivative beneficiaries, is then entitled to one section 245(i) filing, and may adjust only once under section 245(i) based on the pre-January 15 petition (Emphasis added.)

This memo further clarifies that where an I-485 file under 245(i) is withdrawn by the applicant or denied due to Service error, the grandfathered alien's right to 245(i) filing is preserved. Also, an alien whose I-485 is denied may renew his or her application for adjustment of status under 245(i) in removal proceedings before an Immigration Judge without having to pay an additional penalty sum.

If you have further questions regarding the procedures to be followed on FY99 diversity cases, please contact Michelle Egan (HQISD) at 202-305-7800.