Here is the original policy memo I promised to bring to your attention:
http://www.vkblaw.com/news/six.htm
U.S. Department of Justice
Immigration and Naturalization Service
HQ 70/23.1-
Office of the Executive Associate Commissioner
425 I Street NW
Washington, DC 20536
MEMORANDUM FOR: ALL REGIONAL DIRECTORS
ALL SERVICE CENTER DIRECTORS
FROM: Michael A. Pearson
Executive Associate Commissioner
Office of Field Operations
SUBJECT:
Acceptance of DV-related I-485 Applications During 90-day Period Preceding Cut-Off Number in the Visa Bulletin
DATE: 19 JAN 1999
This memorandum is being issued in order to ensure uniform processing of applications for adjustment of status under the Diversity Immigrant (DV) category.
Section 245 of the Immigration and Nationality Act (the Act) requires that an application for adjustment of status may not be filed until a visa number is currently available. Recently, the Department of State issued a memorandum advising the Immigration and Naturalization Service that each month it would provide the cut-off numbers for the Diversity Immigrant category 90 days in advance. This advance notice is being provided to allow the INS additional time to process the background checks for DV applicants.
All offices are hereby advised that applications for adjustment of status filed under the Diversity Immigrant program may be accepted for processing any time during the 90-day period preceding the cut-off date provided in the Visa Bulletin. Offices are advised, however, that while the applications may be accepted for the processing of background checks and scheduling for interviews, visa numbers will not be issued until the cut-off date is current.
What you posted above is speculation. You don't really know what the rule is or what happens in practice. Yet you wrote your post as if you know exactly and definitively what happens. This is misleading to other people and can be a real disservice.
We don't know what the rule is or what happens in practice either. Let me try to shed some light on what we do know.
A while ago, in 1999, INS issued a memo saying people can apply up to 90 days in advance of their number becoming current for DV. The memo was written for a specific DV year and it's not clear whether this memo still applies.
Right the opposite. The memo was written without regard to a specific year, and from CIS answer as of April 2008 it is pretty much clear it still applies
In subsequent years, some people who submitted their applications based on that 1999 memo had their case rejected. In at least one case this happened after people went through all the stages and had their interview. USCIS took the position that the above memo only applied to that year. People had to sue in federal court.
You contradict yourself. If the matter was resolved by the court, it is clear that is the law, not the policy.
The document you posted from 2008 is not actually a law, regulation, or formal memo that indicates how USCIS proceeds. It's issued by the the USCIS Community Relations. And if you read the answer, it says "Discussion is ongoing to ensure that consistent application of USCIS memoranda and policies are followed regarding DV Visa application acceptance." In plain English, they're still trying to figure out what their policy is.
Quite the opposite. The discussion was initiated to make everybody aware of the policy. The policy itself is not discussed, it is clear.
If you look at the question itself. You can see that "Some attorneys report that such advance DV-Lottery I-485 adjustments (as described above) have been rejected under the premise that the DV-Lottery rank is not current." This further confirms that in practice such applications are sometimes rejected.
Were rejected. And CIS is making efforts to make sure that will never happen again.
Unrelated to the previous discussion, I completely agree with this point. From my experiences with them over 6+ years, at the embassy and at KCC, the Department of State is a high-quality organization.
USCIS never really had a reputation for being a high-quality organization. And lately it has come under enormous stress because of a flood of applications.
So what? You do not beleive USCIS will make all their officers aware of this memo? That contradicts your previous statement that that was is a policy. And that contradicts another statement of yours that the matter was resolved in court (which means that is a law).
They have had several different memos come out lately which have said:
- File only when number current at time of receipt.
- File only when number will be current soon according to Visa Bulletin.
- File anytime after Oct 1.
Really? Where are all those memos? There was only one I just showed you. Give me reference to other. Otherwise I suspect you invented all them.
All within the last three months.
All memos? Wow! That will be much easier for you to find them for me (even though I found you a 9-year old memo). Please do not invent memos for CIS. You are not a CIS director yet.
People have done all of these things and have had various results:
- Approved even when number not current at time of approval. (this year!)
- Rejected at mailroom, had to resubmit, no loss of fee (last year a few times)
- Rejected at district office after months of waiting as not current when filed, a total disaster (last year once as I recall, a nightmare, you have lost the GC)
- Became current while processing and then approved
Consulates also have a lot of mistakes. That does not mean the policy in not clear. That means mistakes happen. As long as you mention you know a reference to the policy, they both easily correct themselves.
- Approved even when number not current at time of approval. (this year!)
This is the problem of NVC, not of CIS. CIS cannot approve anything without visa number. If NVC issued a visa number when the rank number was not current, that has nothing to do with CIS. And I do not really beleive you with this. I could believe the interview was before the number became current. But I cannot beleive the approval was.
No one has the right answer on this and it in large part will come down to luck.
I just showed you the right answer, which was confirmed by CIS a month ago.
