In most cases, the benefit of a successful winning application will outweigh other risks. For many who do not qualify for an employment- or family-based petition, this would be their only chance of immigrating. For applicants in slow-moving job or family-preference categories, the benefits are obvious.
A decision to enter the DV program should nonetheless be an informed and careful choice. The DOS has held that a lottery application is, an expression of interest in immigrating to the United States. Also it was determined during the predecessor OP-1 lottery program59 that the entry is a “petition” within the terms of the INA.60
Clients should be counseled to disclose lottery participation on applications, which request information as to whether an immigrant visa petition has been submitted and that this information may result in a visa denial pursuant to INA § 214(b). Too many people view the lottery application as a simple matter not worthy of disclosure in another application. Given the stakes, certain persons may not wish to risk applying for a lottery, in which only a small chance of winning is weighed against the necessity of obtaining student visas necessary to complete a program, particularly if travel or an extension of stay is required.
Many “winners” who lost the race will now experience difficulty obtaining student and visitor nonimmigrant visas and may not even be able to enter the United States. Having made advanced efforts to become a permanent resident, they have expressed clear immigrant intent and may not be able overcome INA §214(b), which requires unrelinquished domicile abroad. For example, a former F-1 student from Iran who chose to consular process in Abu Dhabi, may now be unable to obtain a F-1 student visa to return the United States to resume her course of studies. This same problem arises for applicants who were unable to adjust status before September 30, 2003. Such individuals are placed in removal proceedings if they failed to maintain underlying lawful nonimmigrant status.
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.
Diversity visa participants should also be aware that the DOS no longer shreds unused and/or unselected diversity lottery applications. On September 12, 2002, Representative George Gekas, Chairman of the House Judiciary Committee’s Subcommittee on Immigration, Border Security and Claims, announced that upon his suggestion, the ten to thirteen million diversity visa applications will be shared with U.S. law enforcement and intelligence agencies.64 The diversity visa program, which had once given hope to vast hordes of wishful immigrants both in the United States and abroad, may now become a security trap. Having the name, date and country of birth and address of the ten to thirteen million applicants would hardly appear useful to intelligence agencies, but may be useful to an agency searching for current addresses of the several hundred thousand people ordered removed or who have overstayed their visas. After fifteen years of visa lotteries, the present government’s attitude towards immigrants has made it necessary to recommend caution to persons entering the diversity visa lottery who may be out of status or otherwise removable.
