When requesting benefits on Form DS-156, The Nonimmigrant Visa Application, the form asks: “Has anyone ever filed an immigrant visa petition on your behalf?” The DOS has determined that for lottery applicants, the correct answer to this question is “yes.”61
Failure to review the Form DS-156 carefully may have serious consequences for the unwary applicant and the uninformed practitioner. Although the question should not affect H and L applicants due to the doctrine of dual intent, as well as O and E applicants, a perceived desire to reside permanently in the United States may result in the refusal of issuance of the visa for B-1/B-2, H-3 and J-1 applicants.62
According to H. Edward Odom’s directive, “the fact that an alien has registered for the visa lottery may be taken into account (just as any other fact may be) by a consular officer when adjudicating a subsequent non-immigrant visa application. However, the Visa Office is of the opinion that the fact of registration, by itself, would not ordinarily be sufficient cause for visa denial and certainly is not an automatic bar to receipt of a subsequent non-immigrant visa(s).”63 Also, although a lottery applicant is not automatically barred from issuance of a nonimmigrant visa where INA § 214(b) applies, nor automatically prohibited from changing status to such a nonimmigrant visa or status, the willful misrepresentation of this fact before a Consular Officer or Immigration official, if combined with other factors so that it becomes material, could be grounds for refusal of a visa.
In a typical nonimmigrant visa application, a consular officer may give little or no weight to a lottery application, whereas an approved Form I-140, or Form I-130 immigrant petition may lend stricter scrutiny to the question of nonimmigrant intent. If, however, the applicant has been registered as a “winner” by the State Department, this will demonstrate a higher degree of immigrant intent and foreclose many nonimmigrant visa options.
This issue also arises when applying for a change of status or extension of stay in a visa category where nonimmigrant intent is an issue. Form I-539, Application to Extend/Change Nonimmigrant Status at Part 4(a) and (b) requests the following information: (a) Are you or any other person included in this application, an applicant for an immigrant visa? (b) Has an immigrant petition ever been filed for you, or for any other person included in this application? The immigration practitioner should keep in mind that an F-1 student may file a number of these applications throughout a long academic history if he/she changes from an English as a second language program to a bachelor degree program to a graduate school program and finally to a practical training program.
61 Letter from H. Edward Odom, Chief of Legislation and Regulations Division, Directorate for Visa Services to Stephen Yale-Loehr, Esq., (November 12, 1997), reprinted in 75 Interpreter Release App. VI (March 16, 1998).
62 For an in-depth study on nonimmigrant visa processing see Tien-Li Loke Walsh and Bernard P. Wolfsdorf, “Consular Processing: Practice Tips For The Unwary Practitioner in the Post IIRAIRA Era,” 20 Immigration Law Today 193 (April 2001).
63 Letter from H. Edward Odom, Chief of Legislation and Regulations Division, Directorate for Visa Services to Stephen Yale-Loehr, Esq., (November 12, 1997), reprinted in 75 Interpreter Release App. VI (March 16, 1998).