DV - disqualified, but still asked to go for an interview

[Serch]

I got married after win DV 2013 but we had already a baby,,,, didn't list him,

According with the instruction for marriages taking place after wining the lottery and before be admitted to the US...
Can my son became DV3 under this rule?
Because i married mi girlfriend, mother of my son.

 

[raevsky]

If the marriage is going to be considered genuine, all 3 will get visas. Otherwise, none of you three will.

 

[aos13]

If the marriage is going to be considered genuine, all 3 will get visas. Otherwise, none of you three will.

Pay attention, he says "mother of my son". All biological and legal children have to be listed on DV application. I'm afraid they'll be disqualified.

 

[raevsky]

His question was regarding marriage. The only thing that the marriage brings to the case compared to no marriage situation is potential bar to visas for all applicants if the marriage is not genuine.
The question about son on issues other than marriage is absilutely separate from marriage. So, whether the entry is going to be disqualifies because his son was not included, has nothing to do with the marriage.

However, if son was not included, AOS is still OK, only CP will disqualify the entry.

 

[aos13]

His question was regarding marriage. The only thing that the marriage brings to the case compared to no marriage situation is potential bar to visas for all applicants if the marriage is not genuine.
The question about son on issues other than marriage is absilutely separate from marriage. So, whether the entry is going to be disqualifies because his son was not included, has nothing to do with the marriage.

However, if son was not included, AOS is still OK, only CP will disqualify the entry.

The question was clearly about not listing his son, marriage does not really matter. And please stop telling people that they can do AOS to circumvent the rules. This is the second time you are doing this. First, if people are not in US, they can't just travel to US and start doing AOS. So giving false hope is not adequate. Second, if you are counting on USCIS people not being as careful as consular officers, it'd be a very expensive gamble to lose. I wish him good luck, maybe he has a slim chance.

 

[raevsky]

The question was clearly about not listing his son, marriage does not really matter.

How do you know he did not list his son? Did he say that? Where? It looks like he just had the only post on this forum, and his question here was about disqualifying power of late marriage. He did not say a word about whether he listed his son. How come you assume he did not list him? Moreover, you do it with great level of certainty. Do you know him personally? How am I supposed to know him personally?

And please stop telling people that they can do AOS to circumvent the rules. This is the second time you are doing this.

I am talking about following rules, not circumventing rules. AOS also has rules, but those rules are dirrenet from CP rules. I can tell that more than twice.

First, if people are not in US, they can't just travel to US and start doing AOS.

It very much depends on the situation. In a number of cases they could and would.

So giving false hope is not adequate.

I was not giving false hope. I said that if a person could do AOS, not listing a child would be OK during that process. Do not put something into my mouth that I did not say.

Second, if you are counting on USCIS people not being as careful as consular officers, it'd be a very expensive gamble to lose. I wish him good luck, maybe he has a slim chance.

They are pretty careful. They just have different rules. But they follow those rules. Not listing a child is just not a disqualifying event for AOS.

It looks like you regularly put something into people's mouths that they do not say. I see it about two people already, including myself.

 

[raevsky]

BTW, AOS has several disadvantages as well. One of them is AOS is discretionary. USCIS does not have to adjust your status even if all requirements are fulfilled and you are 100% eligible.
CP is not discretionary.

 

[Sm1smom]

How do you know he did not list his son? Did he say that? Where? It looks like he just had the only post on this forum, and his question here was about disqualifying power of late marriage. He did not say a word about whether he listed his son. How come you assume he did not list him? Moreover, you do it with great level of certainty. Do you know him personally? How am I supposed to know him personally?

I'm not interested in getting in between the ongoing back and forth between you and aos13, but I just wanted to point out that the OP did indicate in his posting that he did not include his son.

I got married after win DV 2013 but we had already a baby,,,, didn't list him,

 

[raevsky]

I'm not interested in getting in between the ongoing back and forth between you and aos13, but I just wanted to point out that the OP did indicate in his posting that he did not include his son.

I was answering Serch's post, not OP's post

aos13 clearly referred to the same post as myself.

 

[Sm1smom]

'My bad' for referring to Serch's post as the OP's post.

However, I meant to reference Serch's post in my response - I'm aware that's the one you and aos13 were discussing, and yes, just like I stated before, Serch did indicate that he did not include his son.

I was answering Serch's post, not OP's post

aos13 clearly referred to the same post as myself.

 

[aos13]

I'm not interested in getting in between the ongoing back and forth between you and aos13, but I just wanted to point out that the OP did indicate in his posting that he did not include his son.

Good, I'm not the only person who puts things in people's mouths Well there's really no reasoning with raevsky, so I give up.

 

[raevsky]

'My bad' for referring to Serch's post as the OP's post.

However, I meant to reference Serch's post in my response - I'm aware that's the one you and aos13 were discussing, and yes, just like I stated before, Serch did indicate that he did not include his son.

He originally did not. His post was changed later, originally it did not include any reference to that.

 

[raevsky]

Good, I'm not the only person who puts things in people's mouths Well there's really no reasoning with raevsky, so I give up.

Sm1smom did not. He noticed that AFTER Serch's original post was changed, but you did that BEFORE.
Thanks very much for giving up anyway. I appreciated a lot.

 

[aos13]

Sm1smom did not. He noticed that AFTER Serch's original post was changed, but you did that BEFORE.
Thanks very much for giving up anyway. I appreciated a lot.

Dude you make things up. When I saw it it included "didn't list him". You just can't lose can you? Enough said.

 

[Dziecka]

i still dont get how come you (raevsky) keep telling people that if they did AOS they would be fine. rules are rules. if you did not include your child in initial applications, it doesnt matter if you do AOS or CP, you would still, most likely, face the denial.

 

[raevsky]

i still dont get how come you (raevsky) keep telling people that if they did AOS they would be fine. rules are rules. if you did not include your child in initial applications, it doesnt matter if you do AOS or CP, you would still, most likely, face the denial.

There are laws and agency regulations.
Both DOS and USCIS follow laws.
But USCIS does follow DOS's regulations, in the same was as DOS does not follow USCIS's regulations.
So, DOS follows laws and DOS's regulations. USCIS follows laws and USCIS's regulations. That is it. Agencies are indenendent one from another. This rule is needed to avoid power struggle between agencies on the border of their influences.
There is no law to disqualify an entry if child is not listed. But there is a regulation issued by DOS. Because USCIS does not follow DOS's regulations, there is no reason for USCIS to disqualify those entries. There is no regulation of USCIS about that.

DOS knows that USCIS does not follow DOS's regulations and that is why this DOS's policy states:

Instances have arisen where DV winners who were advised not to make an application at a post abroad have then entered the United States and requested adjustment of status processing at the Department of Homeland Security (DHS).

to make sure that at least in that case (when initial application was done via CP) DOS will not allow AOS to be done and DOS's regulations to be ignored by USCIS. DOS does not have authority to interfere though if AOS was requested from the very beginning, so in this case USCIS can be assured that unauthorized DOS's regulations would not prevail.

The law says that DV lottery winners could do AOS. So, USCIS is authorized to adjust status of DV winners. Of course, USCIS does not ask DOS whom to adjust and whom not to adjust, that is USCIS's job and responcibility. USCIS has it's own regulations about AOS, and there is nothing there about not listing children in the initial entry. The fact that DOS administers the program does not mean that it could issue regulations that have to be honored by other government agencies. Instead, that means that DOS defines the order how DV lottery is done and in what order it passes the files to USCIS for AOS. Then USCIS operates according to laws and it's regulations, very much independently from DOS.

 

[raevsky]

Dude you make things up. When I saw it it included "didn't list him". You just can't lose can you? Enough said.

His post was changed. It did not initially have reference that appeared later. It's a pity I did not expect it to happen and did not make a screenshot.

 

[Serch]

(pre existing child not listed in the original application) Married after winning notification.

I'm having an issue with DV lottery.
(pre existing child not listed in the original application )
I was preselected on may 2012.
I got married with my girlfriend in June 2012 in the US.
I Sent Wedding certificate and my son's birth certificate to KCC.
KCC answer with a letter and accepting my wife and son as DV2 and DV3 respectively.
Interview in Moscow January 25.
Visa DENIED for all because pre existing child.
I found this guideline 9 FAM 42.33 N6.6 Derivative Status
The spouse of a principal alien, if acquired after registration, and prior to the principal alien’s admission, or the child of a principal alien, if the child was born after registration or is the issue of a marriage which took place after registration and prior to the principal alien’s admission to the United States, although not named on an application, is entitled to derivative DV status.
Thank YOu for recommendations.

 

[raevsky]

This child is not the issue of your marriage. You had this child prior to marriage.
This DOS regulation text is only applicable if the child is the issue of the marriage, what means you aquired the child at the moment of marriage.
General idea is if your spouse or child became your spouse or your child after you submitted the entry, not listing the future spouse or child cannot be a disqualifying event.

In this case CP results in the entry being disqualified.
Few excpetions:
1. If the child was a US citizen at the time of the entry being submitted
2. If the child was an LPR at the time of the entry being submitted
3. If the child was married at the time of the entry being submitted
4. If child was 21 or over at the time of the entry being submitted
5. If the child was born after the time of the entry being submitted
6. If the child was adopted after the time of the entry being submitted
7. If you did AOS and did not apply for CP

3 through 6 mean he was not your child at the moment the entry was submitted
1 and 2 are DOS's exceptions to the general rule. And 7 is just being outside of DOS jurisdiction.

 

[Serch]

any idea for lawful answer?

Is there an excuse to haven't listed my son?

At the time of the interview de Consular Officer said if you have an explanation example: You didn't knew the baby exist...

Im trying to find it out.
Thank U!