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Food For Thought

Sm1smom

Super Moderator
Following each FY DV selectees with dashed hopes often entertain the thought of suing the US government for the unfair treatment, real or perceived, they believe they’ve been subjected to, for the emotional turmoil of unfulfilled hope and sometimes for financial losses.

In fairness, the US government try to prepare selectees’ minds for the possibility of not making it through the entire process by stating on the selectee notification letter that “selection does not guarantee that you will receive a visa because the number of applicants selected is more than the number of visas available” bla bla bla. This basically is one of the steps taken to ensure people will not turn around and level accusations of being deceived or some even claiming being denied of their right and they will therefore sue the US government.

Truth is for anyone processing CP, there’s this thing called the doctrine of consular reviewability. This basically means consular denials are protected from being reviewed, even if the denial was erroneous or based on some bias the CO had towards the applicant. The decisions are final: the applicant cannot sue the US government, nor can another person based in the US institute a court action on behalf of the application with the denied decision. Of course there is a tiny exception to this doctrine, a consular decision can be brought up for a review if the denial of a visa implicates the constitutional rights of an American citizen – this only covers a situation where a US citizen has filed for a spouse and the visa application is denied following the consular processing. This exception is not even applicable to a LPR filing for a spouse.
 
Excellent points Mom. Regarding suing the US government there is a small matter of "sovereign immunity" to overcome. You cannot sue the Federal government unless they say you can. Seems like they have an advantage there...
 
Absolutely right about the 'sovereign immunity' bit - while the Federal government itself cannot be sued, legal actions can be instituted against individual bodies set up to present the government in different matters though.
 
It is generally understood that once the FY is over, pending DV cases can no longer benefit from being issued with a visa for that applicable FY. Interestingly though, the courts have sometimes ruled otherwise in some AOS cases where it turned out that applicants were caught in some bureaucratic nightmare which made it impossible for their cases to be adjudicated in a timely manner prior to the end of the FY. Some AOS applicants have successfully filed writs of mandamus in the past in which the court compelled the INS/USCIS to perform the duty they owed to the applicants by concluding their cases regardless of the fact that the FY was over.

In Marcetic v. INS, 1998 WL 173129(N.D.Ill. April 6, 1998), the court ordered the INS and the State Department to procure visa numbers for the plaintiffs after the end of a fiscal year. In Paunescu v. I.N.S., 76 F.Supp.2d 896 (1999), the court also followed the Marcetic ruling and ordered the defendants (INS) to process plaintiffs' applications and to grant plaintiffs all relief to which they would have been entitled had defendants processed their applications in a timely fashion. It's important to point out that these rulings were based on the understanding that there were unused visas still available from the applicable FY.
 
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 :D), 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.​




 
Looks like reading instructions problem, where it says that individuals "born" in the qualifying countries are eligible. The selectee did not get that point. Even though, in the DV application it may ask for nationality (I don't believe it asks for the way nationality was obtained), the very next question is "are you claiming eligibility based on that country..". At that point she might not know the right interpretation of "eligibility", but she knew that her country of nationality was eligible. This very next eligibility question is a yes-or-no question, and "yes" check box is ticked there by default. You would need to tick "no" to have the option to input a different country. It is an easy-to-miss question too.
It looks like Ms Selectee does not remember the questions in the application well, furthermore the lawyers were not in the position to point it out because, naturally, they had never seen the DV application. The first lawyer's response to "use your country of birth as the country of nationality" is wrong IMO.
As I understand, Ms Selectee was asking why the questions in the application were misleading, but more importantly if anything could be done, since she did not have the intention to gain from the mistake (both countries were eligible). The lawyers should have admitted that they did not know the answer to the first part of the question. As for the second part, it looks like even though she did not have an intention to gain by the misstatement, the rules are rules, and the only way to confirm/refute the rules is to go to the interview.
 
The rules about country of eligibility are so clearly stated on the instructions, in bold, and the instructions are available in so many languages, that I have just about zero sympathy for people who put it down wrong. I remember someone here who said they didn't read them because they didn't really think they'd win!!! Quite frankly, if you can't be bothered to read the instructions, you shouldn't come crying afterwards.
 
The rules about country of eligibility are so clearly stated on the instructions, in bold, and the instructions are available in so many languages, that I have just about zero sympathy for people who put it down wrong. I remember someone here who said they didn't read them because they didn't really think they'd win!!! Quite frankly, if you can't be bothered to read the instructions, you shouldn't come crying afterwards.

Good point Susie. I would add reading and understanding the instruction is minimum.

Researching on definition is a bonus, but in practice is highly recommended.

Ever notice, when you see a CBP immigration official, the 1st question usually is " What is your country of citizenship? That's regardless of how you obtained that citizenship.

The instruction for DV is quite different, where it asked for nationality (NOT citizenship). To be a native, it usually mean you are born there.
Some interesting exceptions to this nationality rules:
Insular area - folks born in some US territory are considered US national, not US citizen.
Reason of presence - say you are born in Japan and your parents(US Citizens) are working in a US consulate at the time, you are not a Japanese national nor a Japanese citizen since your parents' presence is considered temporary.

When one thinks tax laws are complex, immigration law is not far behind.:eek:
Jackie Vimo of the New York Immigration Coalition, a nonprofit advocacy group, calls immigration law “second only to the tax code for complexity.”
 
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It is generally understood that once the FY is over, pending DV cases can no longer benefit from being issued with a visa for that applicable FY. Interestingly though, the courts have sometimes ruled otherwise in some AOS cases where it turned out that applicants were caught in some bureaucratic nightmare which made it impossible for their cases to be adjudicated in a timely manner prior to the end of the FY. Some AOS applicants have successfully filed writs of mandamus in the past in which the court compelled the INS/USCIS to perform the duty they owed to the applicants by concluding their cases regardless of the fact that the FY was over.

In Marcetic v. INS, 1998 WL 173129(N.D.Ill. April 6, 1998), the court ordered the INS and the State Department to procure visa numbers for the plaintiffs after the end of a fiscal year. In Paunescu v. I.N.S., 76 F.Supp.2d 896 (1999), the court also followed the Marcetic ruling and ordered the defendants (INS) to process plaintiffs' applications and to grant plaintiffs all relief to which they would have been entitled had defendants processed their applications in a timely fashion. It's important to point out that these rulings were based on the understanding that there were unused visas still available from the applicable FY.

Very interesting court cases and great post Mom.

Would you consider the immunity does not equal no accountability? Just like any other federal department, DoS is subject to accountability review, specifically by their OIG.
Now, whether they rectify whatever the OIG finds is another matter...but I believe (or would like to believe) there's some accountability.

What do you think?
 
Good point Susie. I would add reading and understanding the instruction is minimum.

Researching on definition is a bonus, but in practice is highly recommended.

Ever notice, when you see a CBP immigration official, the 1st question usually is " What is your country of citizenship? That's regardless of how you obtained that citizenship.

The instruction for DV is quite different, where it asked for nationality (NOT citizenship). To be a native, it usually mean you are born there.

The first instruction for DV does not actually talk about nationality or citizenship in the section about eligiblility. It talks about being a native of a country and explains that this usually means you were born there. You also seem to be confusing "nationality" and "native" even though you are trying to agree with me :)
 
The first instruction for DV does not actually talk about nationality or citizenship in the section about eligiblility. It talks about being a native of a country and explains that this usually means you were born there. You also seem to be confusing "nationality" and "native" even though you are trying to agree with me :)

That's right, in the sense of DV, native means you are born in that country. I believe that what the rules refers to as a part of chargebility.

It is confusing since there are exceptions:
1) native means you are born in that country (exception, your parents were temporarily there when you were born does not qualify you as a native).
2) chargebility includes the birth country you were born in (excluding the exception), but it also includes cross charging to your spouse place of birth or you parents' place of birth under certain circumstances.

DV has nothing to do with citizenship (your citizenship when you apply that is), it only considers chargebility.

Now, here a DV example. If I got this part wrong, I rely on you guys to correct me.

Let's say my father is Japanese, mother is British (not a temp resident at the time of their birth for the respective countries), I am born in Egypt(both my parents have immigrated to Egypt permanently) and my spouse is Brazilian(his or her parents are not temp resident of Brazil at the time of his/her birth).

I have the choice to charge:
1) Egypt (my own birth /native country), which falls under AF or;
2) Japan, which falls under AS or;
3) British, but the UK is not eligible for DV currently or;
4) Brazil, but Brazil is also not eigible for DV currently.

The following part has nothing to do with DV, but I just find interesting.
You would assume if you are born in a country, say the US, you will get the citizenship automatically? Not true.
For example, if you are born in a US territory, you are a US national, not a US citizen (no citizenship)
You can get a US passport, but it will say US national instead of US citizen.
 
Nationality is still a legal relationship. Being a native is not a legal term. The exception you cite above does not mean you are not a native - it just gives you another option to choose for chargeability. Even if the circumstances above are true ie parents were there temporarily, if the country is eligible you can use it for chargeability ... It's just an avenue, like a spouse, to give some people a chance they otherwise would not have.
 
That's right, in the sense of DV, native means you are born in that country. I believe that what the rules refers to as a part of chargebility.

It is confusing since there are exceptions:
1) native means you are born in that country (exception, your parents were temporarily there when you were born does not qualify you as a native).
2) chargebility includes the birth country you were born in (excluding the exception), but it also includes cross charging to your spouse place of birth or you parents' place of birth under certain circumstances.

DV has nothing to do with citizenship (your citizenship when you apply that is), it only considers chargebility.

Now, here a DV example. If I got this part wrong, I rely on you guys to correct me.

Let's say my father is Japanese, mother is British (not a temp resident at the time of their birth for the respective countries), I am born in Egypt(both my parents have immigrated to Egypt permanently) and my spouse is Brazilian(his or her parents are not temp resident of Brazil at the time of his/her birth).

I have the choice to charge:
1) Egypt (my own birth /native country), which falls under AF or;
2) Japan, which falls under AS or;
3) British, but the UK is not eligible for DV currently or;
4) Brazil, but Brazil is also not eigible for DV currently.

The following part has nothing to do with DV, but I just find interesting.
You would assume if you are born in a country, say the US, you will get the citizenship automatically? Not true.
For example, if you are born in a US territory, you are a US national, not a US citizen (no citizenship)
You can get a US passport, but it will say US national instead of US citizen.


For your example you would charge to Egypt. If the country in 4 was an eligible country you might get through by choosing that country, but it would be risky and come with some caveats. The examples given on this exemption tend to describe this scenario only being when a birth country is ineligible (and the spouse was born in an eligible country) but I can see how the rules could be applied rather than the examples. However, using this exemption in this way (both eligible countries and cross charging between regions) would be risky at interview.

The missionary exemption (2 and 3) only applies if the parents in your example were only in Egypt temporarily.
 
Nationality is still a legal relationship. Being a native is not a legal term. The exception you cite above does not mean you are not a native - it just gives you another option to choose for chargeability. Even if the circumstances above are true ie parents were there temporarily, if the country is eligible you can use it for chargeability ... It's just an avenue, like a spouse, to give some people a chance they otherwise would not have.

Hm.... let if see if I understand you correctly. I got it wrong, it should be the other way around. Your parents need to be a temp for you to charge.

"Even if the circumstances above are true ie parents were there temporarily, if the country is eligible you can use it for chargeability ..."

The reasoning is in Section 202(b) (4)

(4) an alien born within any foreign state (example Egypt) in which neither of his parents was born (example UK and Japan) and in which neither of his parents had a residence ( example permanent status in Egypt, so this where it fails) at the time of such alien’s birth may be charged to the foreign state of either parent.

So charging to UK or Japan would get me disqualify, since the parents are there permanently as a resident.
If they were in Egypt as temp resident, I can charge UK or Japan, correct?


9 FAM 42.33 N4.1 Regulatory Definition
(CT:VISA-1478; 08-26-2010)
“Native” ordinarily means both someone born within a particular country,
regardless of the individual's current country of residence or nationality. "Native"
can also mean someone entitled to be “charged” to a particular country under the
provisions of INA 202(b)
(8 U.S.C. 1152(b)).


Your case is covered under (2) below:-

Immigration and Nationality Act (202b)
Section 202(b)
(b) Rules for Chargeability. – Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this Act the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that-

(1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year;

(2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year.

(3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and

(4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien’s birth may be charged to the foreign state of either parent.
 
For your example you would charge to Egypt. If the country in 4 was an eligible country you might get through by choosing that country, but it would be risky and come with some caveats. The examples given on this exemption tend to describe this scenario only being when a birth country is ineligible (and the spouse was born in an eligible country) but I can see how the rules could be applied rather than the examples. However, using this exemption in this way (both eligible countries and cross charging between regions) would be risky at interview.

The missionary exemption (2 and 3) only applies if the parents in your example were only in Egypt temporarily.
Thank you Britsimon and Sussie, just saw you post and I posted up the law for everyone's reference.
 
Hm.... let if see if I understand you correctly. I got it wrong, it should be the other way around. Your parents need to be a temp for you to charge.

"Even if the circumstances above are true ie parents were there temporarily, if the country is eligible you can use it for chargeability ..."

The reasoning is in Section 202(b) (4)

(4) an alien born within any foreign state (example Egypt) in which neither of his parents was born (example UK and Japan) and in which neither of his parents had a residence ( example permanent status in Egypt, so this where it fails) at the time of such alien’s birth may be charged to the foreign state of either parent.

So charging to UK or Japan would get me disqualify, since the parents are there permanently as a resident.
If they were in Egypt as temp resident, I can charge UK or Japan, correct?


9 FAM 42.33 N4.1 Regulatory Definition
(CT:VISA-1478; 08-26-2010)
“Native” ordinarily means both someone born within a particular country,
regardless of the individual's current country of residence or nationality. "Native"
can also mean someone entitled to be “charged” to a particular country under the
provisions of INA 202(b)
(8 U.S.C. 1152(b)).


Your case is covered under (2) below:-

Immigration and Nationality Act (202b)
Section 202(b)

(b) Rules for Chargeability. – Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State. For the purposes of this Act the foreign state to which an immigrant is chargeable shall be determined by birth within such foreign state except that-

(1) an alien child, when accompanied by or following to join his alien parent or parents, may be charged to the foreign state of either parent if such parent has received or would be qualified for an immigrant visa, if necessary to prevent the separation of the child from the parent or parents, and if immigration charged to the foreign state to which such parent has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year;

(2) if an alien is chargeable to a different foreign state from that of his spouse, the foreign state to which such alien is chargeable may, if necessary to prevent the separation of husband and wife, be determined by the foreign state of the spouse he is accompanying or following to join, if such spouse has received or would be qualified for an immigrant visa and if immigration charged to the foreign state to which such spouse has been or would be chargeable has not reached a numerical level established under subsection (a)(2) for that fiscal year.

(3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or, if he is not a citizen or subject of any country, in the last foreign country in which he had his residence as determined by the consular officer; and

(4) an alien born within any foreign state in which neither of his parents was born and in which neither of his parents had a residence at the time of such alien’s birth may be charged to the foreign state of either parent.


202(b)(2) is the one I am finding ambiguous at the moment. Some people (including Wolfsdorf) use that to allow cross charging to improve odds of winning. However, the 9FAM examples only cover cases where the birth country is ineligible (my own scenario). If you read the rule with the example mindset you can see how the rule supports the strict example, but if you ignore the example it sounds quite "open". I just think the COs might follow the example from 9 FAM, and therefore deny these cases (perhaps wrongly). There waqs a case like this in Belgium recently but in the end the CO just mishandled it anyway if favor of the selectee, so the case failed to provide a conclusive answer.
 
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