Country of birth or country of citizenship?

[vdefrance]

Hello,

I have a little issue while filling out my DV form, and I hope someone will be able to help me.

I was born in Senegal but my parents are both French, so my citizenship is French.

When filling out my application, I put
Country Where You Were Born: SENEGAL
Country of Eligibility for the DV Program: FRANCE

Is that correct? Can I make the choice of picking France as the country of eligibility for the DV application, considering that both France AND Senegal are eligible?

I tried to find online a phone number I could call to ask for information about the DV lottery, but I haven't found any. Does anybody know a number to require info on the filling out process?

Thanks a lot in advance!

 

[Igmu]

I would say that you made a huge mistake and that you will most likely get disqualified. It clearly says that the citizenship does not matter. IF your parents did not live in Senegal at the time when you were born (if they were just there on vacation) and IF Senegal would be ineligible (which is not the case), then you would have been able to write down France. You should read the instructions more carefully next time:

"Native of a country whose natives qualify: 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 ... 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' country of birth if it is a country whose natives qualify for the DV-2009 program" (DV-2009 instructions page 2)

 

[Tazmania]

Did you already send the application? In that case they will disqualify you at time of interview if you'll win.

 

[bahadur007]

I would say that you made a huge mistake and that you will most likely get disqualified. It clearly says that the citizenship does not matter. IF your parents did not live in Senegal at the time when you were born (if they were just there on vacation) and IF Senegal would be ineligible (which is not the case), then you would have been able to write down France. You should read the instructions more carefully next time:

"Native of a country whose natives qualify: 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 ... 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' country of birth if it is a country whose natives qualify for the DV-2009 program" (DV-2009 instructions page 2)

Hmm, I'm not sure if it is quite as straightforward. The section of the DV2009 instructions you are referring to above is a summary of the applicable law. The law says:

§ 42.12 Rules of chargeability.

(a) Applicability. An immigrant shall be charged to the numerical limitation for the foreign state or dependent area of birth, unless the case falls within one of the exceptions to the general rule of chargeability provided by INA 202(b) and paragraphs (b) through (e) of this section to prevent the separation of families or the alien is classifiable under:

(1) INA 201(b);

(2) INA 101(a)(27) (A) or (B);

(3) Section 112 of Public Law 101–649;

(4) Section 124 of Public Law 101–649;

(5) Section 132 of Public Law 101–649;

(6) Section 134 of Public Law 101–649; or

(7) Section 584(b)(1) as contained in section 101(e) of Public Law 100–202.

...

(e) Exception for alien born in foreign state in which neither parent was born or had residence at time of alien's birth. An alien who was born in a foreign state, as defined in §40.1, in which neither parent was born, and in which neither parent had a residence at the time of the applicant's birth, may be charged to the foreign state of either parent as provided in INA 202(b)(4). The parents of such an alien are not considered as having acquired a residence within the meaning of INA 202(b)(4), if, at the time of the alien's birth within the foreign state, the parents were visiting temporarily or were stationed there in connection with the business or profession and under orders or instructions of an employer, principal, or superior authority foreign to such foreign state.

...


http://ecfr.gpoaccess.gov/cgi/t/tex...ode=22:1.0.1.5.28&idno=22#22:1.0.1.5.28.2.1.2

The reference to INA 202(b)(4) says:

(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. F or 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-

...

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.

...


http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=9d296ed8d97f728392be9cc37bc47260

As far as I can tell, neither of the above references appears to require that your country of birth has to be ineligible in order to charge to an alternate state, though, typically, that's the case that most often occurs.

The key question is: in what status were your parents in Senegal? Where they born in Senegal and did they become French citizens later? Or were they temporarily there as described above?

I would not bother trying to phone anyone at KCC since the likelihood of anyone answering the phone being actually knowledgable about the finer points of the law is quite slim (unfortunately). It would be much better to write an e-mail to KCC, explaining clearly what your question is; even then, you will probably just receive a stock answer. You could consult a good immigration lawyer (shusterman.com, murthy.com).

However, you have to consider whether it is all worth your effort since both Senegal and France are eligible. Both Africa and Europe receive a large chunk of available visas. And Senegal did not reach its 7% limit last year, unlike Egypt, Ethiopia and Nigeria. I haven't calculated the numbers, but you may have a better change of being selected if you choose Senegal rather than France in view of the education requirements.

 

[vdefrance]

Igmu,
I haven't filled it out yet, so I guess I didn't make a huge mistake and still have my chances. I was asking the question to make sure I have all the info right before I begin the process. I know how to read instructions, but my case is more specific than the general directions they give on their website, and I was actually looking for more accurate and case-to-case directions, and I think bahadur007's answer is gonna be helpful.
Thanks for your answer though.

I would say that you made a huge mistake and that you will most likely get disqualified. It clearly says that the citizenship does not matter. IF your parents did not live in Senegal at the time when you were born (if they were just there on vacation) and IF Senegal would be ineligible (which is not the case), then you would have been able to write down France. You should read the instructions more carefully next time:

"Native of a country whose natives qualify: 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 ... 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' country of birth if it is a country whose natives qualify for the DV-2009 program" (DV-2009 instructions page 2)

 

[Mihiranga]

Igmu,
I haven't filled it out yet, so I guess I didn't make a huge mistake and still have my chances. I was asking the question to make sure I have all the info right before I begin the process. I know how to read instructions, but my case is more specific than the general directions they give on their website, and I was actually looking for more accurate and case-to-case directions, and I think bahadur007's answer is gonna be helpful.
Thanks for your answer though.

Glad to hear you haven't yet filed up the form. I think you better just stick to your country of birth. That way you cannot go wrong. A person is ALWAYS eligible to apply through his country of birth if it is an eligible country.

 

[Igmu]

The reason why I wrote that you should read the instructions more carefully is the way you formulated your question: even in your case the citizenship doesn't have anything to do with it. But yes, I'm glad that Bahadur007 took his time to find some better sources for you.