Here's an interesting case about a DV2013 selectee who failed to read and follow the DV instructions prior to submitting her eDV application and was found ineligible on chargebility grounds - she however was convinced she didn't do anything wrong, even when the errors were pointed out to her - a very amusing story, I think.
http://www.justanswer.com/immigration-law/7ots2-hi-won-2013-dv-green-card-lottery-waiting.html
Because links sometimes get broken or stop working for whatever reason (and because I find this story very very amusing
), I've decided to actually paste it here:
Ms DV Selectee writes:
Hi , I won 2013 DV green card lottery and after waiting for an interview for almost 1 year, they have just emailed me the email below:
"Dear Ms.
The Kentucky Consular Center (KCC) scheduled and mailed to you notice of your final visa interview with this office. Before you travel to our office for your interview, you may wish to review the rules of eligibility for the Diversity Visa Lottery. In preparing your file for your final visa interview, it was noted that you were born in Kasachstan but had entered the DV2013 program using Germany as your Foreign State of Chargeability (FSC), which may be your country of citizenship or residence. FSC is based on country of birth. It therefore appears that you may have made an error in your initial DV lottery entry.
Natives of Kasachstan were eligible to enter the DV2013 lottery program; therefore, you should have entered the program using your FSC as Kasachstan and not Germany, your country of residence and/or nationality. The rules to the DV lottery state that an applicant will be disqualified at the time of interview if they are found to have used the wrong FSC at the time of application entry.
Unless you fall under the exception to the general rule of chargeability, you may be found at your interview to be ineligible for an immigrant visa through the Diversity Visa lottery. The Department of State guidelines on chargeability are outlined in 9 FAM 42.33 N4.2, listed below:
As stated in the regulatory definition, the normal rules of chargeability apply to INA 203(c) immigrants. Many applicants may seek beneficial treatment from the rules of cross chargeability, as in the following examples:
(1) A spouse or child born in a country, which is not among those for which DV visas are available, may use the principal registrant’s chargeability when they are accompanying or following-to-join;
(2) A child born in a non-qualifying country in which neither parent was born nor resident at the time of the child’s birth, may claim the birthplace of either parent;
(3) A DV applicant born in a country, which is not among those for which DV visas are available, and the non-applicant spouse who was born in a qualifying country, may be issued DV visas, provided the relationship was established prior to submitting the entry. In such instances, however, both applicants are considered principal applicants for the purpose of cross-chargeability and must be issued visas and apply for admission to the United States simultaneously.
In simpler terms, as you were born in Kasachstan and natives of Kasachstan were eligible to enter the DV2013 lottery program, and you used the FSC of your country of your residence and/or nationality, you may be found to be ineligible to apply for the DV2012 visa you had been selected for. If you attend your visa interview, you might be found to be ineligible for a visa if it is found that no exception to the rules of chargeability applies to you. Any fees you and your family members pay at your visa interview are application fees, and will not be refunded if you are found ineligible. Please thoroughly review the rules and the instructions on the Department of State website before you attend your interview. That site is:
http://travel.state.gov/visa/immigrants/types/types_1322.html.
Regards,
U.S. Consulate General, Sydney
Immigrant Visa Unit
(BC)"
I would have no problems to enter Kasachstan as my FSC but unfortunately the application didn't state that FSC is based on country of birth. The question was about my citizenship/nationality and whether I have gained it through naturalization or other reasons! Is there anything that can be done?
Lawyer replies:
Hello, Thank you for this opportunity to answer your questions. Unfortunately, no. The instructions do tell you that you have to use your country of birth as the country of nationality. That never changes even if you obtain
citizenship in one or more other countries.
Ms DV Selectee responds:
Thanks but as i explained above, the question didn't read " which country you were born?". It was the question about my nationality and how I obtained it. Could you please provide a link to the instructions and where it is stated exactly?
Lawyer Replies:
I will have to research it. However, it will not change the law. The consul is correct. By law they cannot approve the visa application.
2nd Lawyer Provides additional input:
Unfortunately, I agree with the consul and with my colleague and here is the official link to the instructions:
http://travel.state.gov/pdf/DV_2014_Instructions.pdf
It clearly says on the top of the 2nd page:
Native of a qualifying country:
In most cases, this means the country in which you were born. However, there are two other ways you may be able to qualify. First, if you were born in a country whose natives are ineligible but your spouse was born in a country whose natives are eligible, you can claim your spouse's country of birth - provided that both you and your spouse are on the selected entry, are issued visas, and enter the United States simultaneously. Second, if you were born in a country whose natives are ineligible, but neither of your parents was born there or resided there at the time of your birth, you may claim nativity in one of your parents' countries of birth if it is a country whose natives qualify for the DV-2014 program.
So unless your spouse or child were born in Germany and that you were married before or your son was born before you applied for the DV lottery, you will be found to be ineligible for the DV lottery this year. You will have to apply next year using the correct country of birth. I am truly sorry for the bad news. I sincerely XXXXX XXXXX had better news for you.
Ms DV Selectee Replies:
Hi Thanks, the question was not about 'native'. It was about my citizenship and nationality! Plus Kasachstan was eligable and I had absolutely no reason not to enter it. I wish I had an image of the application to show what I mean.
2nd Lawyer Responds:
Unfortunately, the instructions are very clear. Perhaps you made a mistake. The only way to know for sure is to go to the interview and review your application with the officer. If it turns out that it is ambiguous, they will still most likely deny you. You can try to sue the government at that point, but the chances of having the case dismissed due to sovereign immunity would be high. Even if they do not dismiss the lawsuit, there is no guarantee that you will win because it is well established in law and practice that it goes by country of birth, not country of citizenship. Again, I am truly sorry. I wish I could give you some hope.