INS Memo on Adjustment of Status for FY95 DV-1 Aliens

The Diversity (DV-1) program is the new permanent immigrant visa lottery under section 203(c) of the Immigration and Nationality Act (the Act). FY 95 DV-1 "winners" and their derivative family members may apply for adjustment of status or immigrant visa issuance beginning October 1, 1994. Many of these aliens are in the United States and will be applying for adjustment of status under section 245 of the Act. These applicants may, if they entered without inspection and/or cannot meet the requirements of section 245(c) of the Act, also use the adjustment of status benefits of the new section 245(i) of the Act.

Although the DV-1 lottery program is permanent, immigrant visa numbers are available to the "winners" and their derivative family members only during the fiscal year for which the principal has "won." The Department of State (DOS) recently notified a large number of aliens that they are "winners." The number of persons notified is much greater than the 55,000 immigrant visa numbers available during the fiscal year. Immigrant visa number cut-offs will most likely be established early in calendar year 1995, and some aliens who received selection notices may be unable to adjust status or be issued an immigrant visa under the program. Visa number cut-offs, if they occur, will be published in the "visa Bulletin."

Offices should, therefore, process these cases promptly. In many offices, it will be necessary to establish special procedures to ensure that these cases are processed to conclusion as soon as possible and before the end of FY 95. Waiver requests and Forms I- 824 for derivative family members abroad may also require special handling.

The attachment to this memorandum outlines procedures for acceptance and processing applications for adjustment of status of DV-1 principals and their family members.

James A. Puleo

Executive Associate Commissioner

Attachment

1. FY 1995 DV-1 PROGRAM - SIGNIFICANT CHANGES

Some DV-1 program requirements and procedures differ from those under the AA-1 and earlier immigrant visa lottery programs. Significant differences include:

- The list of participating countries (selected according to a formal contained in section 203(c) of the Act) may change from year to year;

- Applications received by DOS during June 1994 were assigned to one of six geographical regions of the world, and the FY 95 "winners" were chosen at random from each region's applicant pool;

- DV-1 principals and their derivative family members are subject to regional and to per country visa number limitations, in addition to the overall 55,000 limitation;

- DV-1 principals must prove that they have the statutorily required education or employment experience when they apply for adjustment of status or immigrant visa issuance;

- DV-1 principals and their derivative family members ar not required to have a specific job offer or prearranged employment, although they, like other adjustment or immigrant visa applicants, must show that they are not likely to become public charge in the United States;

- No waivers of excludability have been provided for DV-1 aliens, although they are not precluded from applying for any waiver for which they qualify;

- DV-1 aliens who apply for adjustment of status are not required to pay a registration or other fee to DOS;

- Applications for registration are restricted to one per registrant per application period (multiple applications will disqualify the applicant, although the principal and family members may each have filed separate applications and applicants may apply again next year).

2. NOTIFICATION PROCEDURE

"Winners" were recently notified by mail of their selection for the program. The National Visa Center (NVC) sent each principal a package of forms, which included a cover letter showing the principal's case rank number (priority date).

"Winners" who will adjust status should return to NVC the form which advises NVC of their intention to adjust as well as information on derivative family members residing abroad. Nothing else needs to be returned to NVC by a winner who will be adjusting; however, if he or she has derivative family members abroad, any forms received from NVC should be forwarded to those family members for completion and return with required documents to NVC.

3. ACCEPTANCE OF DV-1 ADJUSTMENT OF STATUS APPLICATIONS

FY 95 DV-1 "winners" and their derivative family members who are in the United States may apply for adjustment of status under section 245 of the Act. DV-1 adjustment applicants who entered without inspection and/or who are described in section 245(c) of the Act may adjust status under the new adjustment provisions of section 245 (i) of the Act. Those filing under section 245(i) must complete Supplement A to Form I-485 (Supplement A) and must pay the additional sum, if required.

Visas under the program are numerically limited by geographical region and by country. The principals' case rank order number (priority date) must be current and a DV-1 visa number immediately available when the DV-1 applicant files for adjustment of status and when the adjustment is granted.

DV=-1 adjustment applicants must submit the I-485 application form, the I-485 supporting documents, the basic adjustment of status filing fee, and also provide:

A. Supplement A and any required additional sum, if applying under section 245(i) of the Act;

B. a copy of the principal's Fy-95 DV-1 selection notice showing a current DV-1 case rank number;

C. evidence that the principal has the required education or job experience (not required for derivative family members);

- Derivative spouses and children are not required to meet the education or employment experience requirements

- There is no minimum age for principal applicants, although the education or work experience requirements effectively disqualifies most principals who are less than 18 years old.

- Persons who applied for registration under other lottery programs will not be awarded FY 95 DV-1 visa numbers unless they applied for and are "winners" under the FY 95 DV-1 program.

- If the DV-1 alien claims to have lost the cover letter showing the principal's case rank number, he or she should be instructed to request a duplicate by calling NVC at: (603) 334-0700. INS does not have a list of the "winners" at this time and does not know when the list will be available.

4. CASH RANK ORDER NUMBER (PRIORITY DATE)

The principal's case rank order number will be shown on the principal's notice of selection. The case rank order number will begin with two letters corresponding to the principal's region of chargeability: AS (Asia); EU (Europe); NA (North America); OC (Oceana); or SA (South America). The two letters will be followed by five digits.

"AS 00005," for example, would be the case rank order number of the fifth "winner" chosen from the Asian region. The most favorable number in any region is: 00001. There will be a "0001" for each geographical region; therefore, both the letters and the digits must be shown on the Form I-181 and reported to DOS when requesting immigrant visa number issuance.

5. EDUCATION OR EMPLOYMENT EXPERIENCE

Each DV-1 principal must show that he or she has at least a high school education or its equivalent or, within the five years preceding the date of application for adjustment of status, has two years of work experience in an occupation requiring at least two years training or experience. Although all applicants were notified that they must be able to meet these requirements when applying for adjustment of status or immigrant visa issuance abroad, DOS has not pre-screened applicants. Principals who cannot meet these requirements do not qualify for DV-1 adjustment of status. Failure to qualify will necessitate denial of the principal's adjustment application and the adjustment applications of any DV-1 derivative family members.

EDUCATION

High school education or its equivalent means successful completion of a twelve-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to completion of twelve years' elementary and secondary education in the United States. Passage of the "G.D.E." (General Educational Development) test or its foreign counterparts will not meet this requirement.

Primary documentation would be a certification of completion, such as a high school diploma. School transcripts may also be used for this purpose. In general, any documentation on this point will be acceptable, provided that it was issued by the person or organization responsible for maintaining such records and describes with specificity the course of study completed.

Adjudicators may also accept college or university diplomas or transcripts, unless the adjudicator suspects that the applicant did not successfully complete a formal course of study comparable to twelve year's elementary and secondary education in the United States. (For example, an "honorary" college degree or one based solely on work experience would not be evidence of completion of a formal course of elementary and secondary education.)

WORK EXPERIENCE

DV-1 principals who meet the DV-1 educational requirements do not need to have any specific type of work experience.

The two years of qualifying work experience must have occurred within the five year immediately preceding the date the adjustment application was filed. The qualifying work experience must be in an occupation that requires at least two years of work experience or training.

The most recent edition of the Dictionary of Occupational Titles (DOT) published by the Employment and Training Administration United States Department of Labor, shall be controlling in determining whether a particular occupation is one "which requires at least 2 years of training or experience" as provided in section 203(c) of the Act.

An SVP (Specific Vocational Preparation) of seven will be required. The SVP is the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. The DOT lists the SVP number for each type of occupation reported. The DV-1 applicant does not need to have spent time in formal training courses; two or more years of employment in an occupation with an SVP rating of seven or more will be sufficient.

If the occupation is of such recent vintage (because of technological change) that it is not listed in the most recent edition of the DOT, documentation submitted by the applicant concerning whether the occupation requires two years of training or experience may be considered.

6. PROCESSING ADJUSTMENT OF STATUS APPLICATIONS

The applicant's priority date must be current when the application is approved. State Department authorization for visa number allocation must be obtained before any FY DV-1 adjustment of status application can be approved.

All FY-95 cases must be completed before October 1, 1995. Visa numbers are now current for the DV-1 category; however, there is no assurance that they will continue to be current, especially in the latter months of FY-95. These cases should, therefore, be scheduled and completed as soon as possible. Where necessary, offices should expedite adjustment of status interview scheduling, application processing, waiver application processing, and Form I- 824 processing for DV-1 principals and dependents.

Adjustment of status codes are:

DV6 - Principal Diversity Transition Alien
DV7 - Spouse of DV6 or DV!
DV8 - Child of DV6 or DV1

7. DUPLICATE REGISTRATION

FY-95 applicants will be disqualified if they have submitted more than one application for registration per individual. (Please note that a husband, wife, and minor children may each have submitted an application without being subject to disqualification.) In any case where the INS officer has evidence or good reason to believe that more than one application for registration was submitted for any one winner, do not take final action on the adjustment of status application and contact Rita Arthur, HQADN at (202) 514- 5014.

8. WAIVERS

DV-1 "winners" and derivative family members may apply for any immigrant waiver for which they are able to establish eligibility. No additional waivers have been provided for "winners" of the DV-1 visa lottery.

9. DERIVATIVE FAMILY MEMBERS AND FORM i-824 PROCESSING

Derivative family members who will be adjusting status or applying for immigrant visa issuance abroad must meet the requirements of section 203(d) of the Act.

The DV-1 principal's family members who will be following-to-join the principal must adjust status or be issued immigrant visas while the principal's case rank number (priority date) is current and before the end of FY 1995. Delays in notifying DOS of the principal's adjustment may result in the family members being unable to immigrate.

In order to expedite processing for these family members, the Service has agreed to fax copies of the principal's Form I-181 (completed in accordance with OI 245.7) to NVC. The NVC fax number is (603) 334-0759. This fax must be sent as soon as the adjustment is completed.

If the principal notifies the Service after adjustment that family members will apply for derivative immigrant visa issuance abroad, the Form I-824 processing should be completed as soon as possible.

The copy of the principal's Form I-181 (completed in accordance with OI 245.7) must be faxed to NVC as soon as the Form I-824 processing has been completed.

10. FURTHER INFORMATION

A copy of the Department of State's final rule implementing the DV- 1 program and the Public Notice published in the Federal Register on March 31, 1994, at 59 FR 15298-15306 is attached for your reference.

Questions may be directed, through proper channels, to HQADN, attention Rita Arthur.