New DOS Cable Discusses §422 of the USA PATRIOT Act
R 200123Z FEB 02
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS
SPECIAL EMBASSY PROGRAM
AMEMBASSY BELGRADE
AMEMBASSY DUSHANBE
UNCLAS STATE 032257
E.O. 12958: N/A
TAGS: CVIS
SUBJECT: USA PATRIOT ACT SERIES: NO. 5 - SECTION 422:
RELIEF FOR SOME DV-2001 APPLICANTS AFFECTED BY THE EVENTS
OF SEPTEMBER 11, 2001
REF: STATE 190946
1. Summary: Section 422 (C) of the USA Patriot benefits
two categories of DV-2001 applicants: 1) those who were
issued a DV in FY 2001 but who were not able to use it
before it expired due to the events of September 11, 2001,
and 2) those who lost DV follow-to-join status because the
principal DV applicant was killed in the terrorist attacks
against the United States on September 11, 2001, before
the follow-to-join DVs could be issued. (End Summary)
DV-2001 Visa Validity Extended for Some Applicants
2. If an alien was issued a DV 2001 before the end of the
DV 2001 year on September 30, 2001, but he/she was unable
to use it due to the events of September 11, 2001, under
Section 422(c)(1), the validity of the DV may be extended
to April 1, 2002. To obtain this DV validity extension,
the alien must present specific evidence to demonstrate
that the reason for not using the DV was connected with
the events of September 11. INS draft definitions of what
constitutes evidence to support extension of the DV
validity are listed below in Paragraph 13. Applicants are
not eligible for such validity extension unless they were
issued the DV and the DV was printed before September 30,
2001.
3. No change will be made in DVIS to permit replacement
of DV-2001 visas in FY 2002 for the few cases expected to
qualify under Section 422(c)(1). Instead, posts will issue
a transportation letter in duplicate to accompany the
expired DV, as well as the usual packet of documents
including application forms, birth/marriage certificates,
medical exam, namechecks, etc, that are issued to a DV
applicant. These DVs should be counted as "replacement"
issuances on post's monthly workload reports. As a DV
number had already been granted for these cases, posts do
not need to request another number.
4. Text of Transportation Letter:
The Transportation Company and
The Supervisory Immigrant Inspector
U.S. Immigration and Naturalization Service at
Port of Entry
Sirs:
The (U.S. Embassy) confirms that (Name of Applicant), born
on (Date of Birth of Applicant) is eligible for the
Diversity Visa 2001 Program under the terms of the U.S.A.
Patriot Act, Section 422 (c)(1).
As the alien has demonstrated that he/she was prevented
from using the Diversity Visa as a direct result of the
terrorist attacks against the United States on September
11, 2001, the validity date of the Diversity Visa issued
to the applicant on (date of issuance of DV) with visa
number A (original visa number which can be determined
from the ConsUlar Consolidated Database if the visa is no
longer available) is extended until April 1, 2002.
The above named person has been instructed to present the
original of this letter to the transportation company on
which travel to the United States is intended. The above-
named person has also been instructed to present the
duplicate of this letter and the sealed envelope
containing supporting documents to the immigration officer
at the United States port of entry.
Expiration Date: April 1, 2002
Very truly yours
(Name of Consul)
Consul of the United States of America
5. If the DV applicant who qualifies under Section 422
(c)(1) has already disposed of the expired DV, issue a
transportation letter as in Paragraph 11 below, changing
the section under which the letter is issued as well as
the expiration date in the appropriate places in the
letter, and add a paragraph at the end stating that the
expired/issued DV-2001 was destroyed by the applicant. If
available, post should include a copy of the DV issued to
the alien.
6. As the POE will not have the usual DataShare
information on the applicants who qualify for the
extension of the expired DV-2001, posts must report to
CA/VO/F/P the name, DPOB, intended POE for each applicant
granted an extension of validity under this provision so
the information can be relayed to INS.
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Follow-to-join DV status for some surviving family members
of a DV-2001 principal applicant killed on September 11
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7. If a DV principal applicant issued a DV during FY 2001
had entered the United States and was killed in the
terrorist attacks on September 11, 2001, before his/her
spouse and/or children could follow to join, the spouse
and/or child of that alien is now entitled to follow-to-
join status until June 30, 2002 under the provisions of
Section 422(c)(3), even though the DV 2001 program has
ended. Such cases must be processed as if the alien were
not deceased and as if the spouse or child's follow-to-
join DV application had been adjudicated and the visa
issued/printed by September 30, 2001.
8. Regardless of whether or not such follow-to-join
family members had actually initiated DV processing prior
to September 30, 2001, such issuances should be processed
as DV-2002 cases and reported on post's monthly workload
reports.
9. To qualify, applicants must demonstrate that they were
the spouse/child of the principal applicant on September
10, 2001. If post does not have a record of the issuance
of the DV-2001 to the principal applicant, check the CCD
or contact VO. Applicants must also demonstrate to the
consular officer that the principal applicant was killed
in the terrorist attacks of September 11, 2001, see
paragraph 12 below.
10. Applicants should undergo all required processing,
documentation requirements, and interview as is usual for
a DV applicant. Such applicants will be issued only a
transportation letter to accompany the usual packet of
documents for INS at POE. If available, include a copy of
the DV-2001 issued to the principal applicant.
11. Text of transportation letter:
The Transportation Company and
The Supervisory Immigrant Inspector
U.S. Immigration and Naturalization Service at
Port of Entry
Sirs:
The (U.S. Embassy) confirms that (Name of Applicant) is
eligible for the Diversity Visa 2001 Program under the
terms of the Patriot Act, Section 422 (c)(3) as
applicant's spouse entered the United States as a DV
immigrant and was killed in the terrorist attacks against
the United States on September 11, 2001, before applicant
(and accompanying children were) was able to follow-to-
join the principal.
Name of Applicant as shown on OF-230 and passport:
Name of Deceased Spouse:
A# (Diversity Visa #) of Deceased Spouse, if known:
Alias, including maiden name of spouse if not used as the principal name:
City and Country of Birth of Applicant:
City and Country of Last Residence:
Mother's First Name/Father's First Name
Final street address in the U.S. including zip code:
Classification Symbol: (DV 2 or DV 3)
Foreign State chargeability:
If foreign state chargeability is different from country
of birth, indicate under which section of INA 202(b) DV
status is granted:
Name/DPOB of accompanying minor children:
POE at which applicant will enter the United States:
Expiration Date: June 30, 2002
Very truly yours,
(Name of Consul)
Consul of the United States of America
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Evidence of Death, Disability, Loss of Employment due to
the terrorist attacks against the U.S. on September 11,
2001
12. Section 426 directs INS to establish evidentiary
standards for purposes of adjudicating cases under the
Patriot Act. Under the current INS draft of those
standards, to demonstrate that a DV-01 principal alien was
killed in the terrorist attacks against the United States
on September 11, 2001, the following may be used:
a. official death certificate listing the date of death
as September 11, 2001, accompanied by other
documents attributing the death to the attacks of
September 11.
b. Interim death certificate issued by the State of New
York listing the date of death as September 11,
2001.
c. Flight records, for deceased passengers on one of
the four planes used in the attacks.
d. Public records listing the deceased as a victim of
the September 11 attacks.
e. Other official or non-official documents.
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Circumstances that might have prevented timely action in
applying for or using visas
13. INS has compiled a draft list of various events that
aliens may use to support a claim for benefits under the
Patriot Act. Consular officers may make a determination
using this draft list as to what proofs might be presented
to demonstrate that applicant's entry into the U.S. was
delayed beyond the validity date of the issued DV-01 due
to one of the following:
a. office closures
b. mail or courier service cessations or delays
c. airline flight cessations or delays
d. other closures or delays affecting case processing
or travel
May post resume consular processing of DV-01 cases that
were not completed and issued by September 30, 2001?
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14. No. Nothing in Section 422 of the Patriot Act permits
resumption of consular processing of those DV-2001 cases
for which the applicant did not complete processing and
for which post did not issue/print the visa by September
30, 2001. The only possible exception is FTJ status for
derivatives of a DV 2001 principal who entered the United
States and who was killed in the attacks against the U.S.
on September 11, as explained above in paragraphs 7-10.
Conclusion
15. It is unlikely there will be many DV 2001 applicants
who might qualify under one of these two Patriot Act
provisions. For assistance, contact VO by e-mail.
POWELL