Dv 2009 - Aos Only

[orangeandwhite]

Anyone who has spent any time reading the forums knows that USCIS memoranda and policy statements can have little or no impact at the operational level. I can see this guy now, waving a 1999 INS memo at some infopass officer. Lots of luck. The purpose of this forum is to see what actually happens -- and the answer there is that USCIS is inconsistent and it depends on your office and on luck.

Anyway, in case you want things to wave at infopass while screaming at some bored USCIS agent...

Here's one memo (dated April 2) stating that, at best, you can file when rank number is current soon:

http://www.uscis.gov/files/nativedocuments/AILA_2Apr08.pdf

Here's another one, dated March 25 and revised April 3, 2008 (one day later, by a different group in USCIS), which says that you can file any time in the fiscal year:

http://www.uscis.gov/files/nativedocuments/MARCBOQA.pdf

This is their internal procedures manual which states simply "Diversity must have a number available" without more:

http://www.ilw.com/seminars/august2002_citation2b.pdf

Your call.

Search the forum if you want stories of people being rejected/denied for filing early. There are good reasons for doing it in some situations (going out of status; expecting a long name check; expect number to be current in September only and want to ensure you get a shot).

I'm really tired of the nasty and rude argument, especially when the other side of it is repeatedly and provably wrong. Moderators may want to step in at some point.

 

[plus07]

I am getting rather tired of this, but I'll answer one last time, to make sure that people have all the facts.

Here is the original policy memo I promised to bring to your attention:

http://www.vkblaw.com/news/six.htm

I am going to assume that the posting on www.vkblaw.com is complete and accurate.

There have been several memos published by INS on this subject.

• The memo I was referring to is dated Jul 22 1999, and its official text can be found in 76 Interpreter Releases, July 26 1999, page 1135.
  
• It allows people to file up to 90 days in advance, etc. It is written specifically for DV-99, and references two other memos on this topic of December 9, 1998 and February 24, 1999. (Maybe one of these two is what you found on www.vbklaw.com.)
  
• I didn't look at the other two memos, but clearly there are several memos saying you can file in advance. There's also an opinion in 2002 by the then-INS general counsel that the memo still applies (80 Interpreter Releases, January 20 2003, page 109).

Now, here's an example of what happened in practice in 2004. We know all the details because this case was litigated in federal court (04-CV-4140, Eastern District of New York):

• A and her husband filed about 3 weeks in advance of their number becoming current. USCIS cashed the checks, sent receipt notices, took biometrics, conducted an interview.
  
• In July 2004, A and her husband got a denial of their application by mail. USCIS District Director Mary A Gantner wrote that they filed before their number was current. The decision completely ignored the existence of all the above memos.
  
• A and her husband got lawyers and filed a motion to reconsider. They attached the memo from July 22/26 1999, which referenced the other two memos as well.
  
• On September 9 2004, USCIS District Director Mary A Gantner took the position that the July 22/26 1999 memo applied only to DV-1999, and denied the application again. She seems to have ignored the other memos.
  
• On September 23 2004, A and her husband had their lawyer file a lawsuit in federal court. On September 28 2004 the US Attorney responded asking for a 60-day delay. On October 6 their lawyer agreed to the postponement. At this point, their application had failed, because the Sept 30 deadline had passed. (Clearly not a very good lawyer.)
  
• There were additional developments in the case, and USCIS denied their applications again, based on new and different reasons. But this really didn't matter - once Sept 30 had passed, they would've been unable to get their green card anyway.

In addition to this case, we know from the forum that in past years people sometimes had their applications rejected because they filed before their number was current.

The memos do say that you can file in advance. The question is what happens in practice.

• USCIS is inconsistent in when you can submit your DV I-485.
  
• If you submit early, your application might be rejected, and you may loose valuable time.
  
• If you submit when your application is current, say overnight on the last day of the previous month, you'll be safe for sure.

It's up to each individual applicant to decide how much risk they want to take in light of these facts. Here is my personal opinion:

• If you expect your number to be current in Jan or before, you don't really gain much by submitting early.
  
• If you expect your number to be current in April or later, you should really consider doing CP. You may want to monitor the timelines in the DV 2008 AOS thread as we progress towards Sept 30.
  
• It could happen that doing CP is not a good idea for you - for very specific personal or legal reasons. Think it through / talk with a good lawyer.

I am not going to answer raevsky's other arguments, accusations, etc. I just wish he would stop providing such definitive-sounding opinions when he doesn't know what he talking about - this can be really misleading to people.

 

[raevsky]

I am returning back to my original statement:

the rule is - not earlier than 90 days before the number becomes current. However, this rule works only for the same fiscal year. So, if your number become current on August, 1, you can submit on May, 3rd (90 days in advance). However, both you and CIS do not have any knowledge of current numbers for August 1st until May 18th. That is why you can submit only on May 18th or later.
Regarding your case (when the number becomes current on October 1st) you cannot submit before October 1st, because September 30th is a different fiscal year, even though current numbers are available much earlier.

Fortunately, all three memos mentioned state exactly the same thing. They all just confirm that policy.

Here's one memo (dated April 2) stating that, at best, you can file when rank number is current soon:

http://www.uscis.gov/files/nativedoc...ILA_2Apr08.pdf

Here's another one, dated March 25 and revised April 3, 2008 (one day later, by a different group in USCIS), which says that you can file any time in the fiscal year:

http://www.uscis.gov/files/nativedocuments/MARCBOQA.pdf

This is their internal procedures manual which states simply "Diversity must have a number available" without more:

http://www.ilw.com/seminars/august2002_citation2b.pdf

Your call.

Search the forum if you want stories of people being rejected/denied for filing early. There are good reasons for doing it in some situations (going out of status; expecting a long name check; expect number to be current in September only and want to ensure you get a shot).

Yes, of course. And I do not see violiating this policy among them.

I'm really tired of the nasty and rude argument, especially when the other side of it is repeatedly and provably wrong. Moderators may want to step in at some point.

I am also really tired of the situation when a couple of participants do not understand logical arguments and try to falsify information and to provide disinformation to comply with their wrong statements. And when they call it rude solely because they are not correct when the other side proves them they are wrong and just uses exactly the wording they used before. Do not behave rude yourself, and you will not be answered in the same manner.

Now, here's an example of what happened in practice in 2004. We know all the details because this case was litigated in federal court (04-CV-4140, Eastern District of New York):

* A and her husband filed about 3 weeks in advance of their number becoming current. USCIS cashed the checks, sent receipt notices, took biometrics, conducted an interview.
* In July 2004, A and her husband got a denial of their application by mail. USCIS District Director Mary A Gantner wrote that they filed before their number was current. The decision completely ignored the existence of all the above memos.
* A and her husband got lawyers and filed a motion to reconsider. They attached the memo from July 22/26 1999, which referenced the other two memos as well.
* On September 9 2004, USCIS District Director Mary A Gantner took the position that the July 22/26 1999 memo applied only to DV-1999, and denied the application again. She seems to have ignored the other memos.
* On September 23 2004, A and her husband had their lawyer file a lawsuit in federal court. On September 28 2004 the US Attorney responded asking for a 60-day delay. On October 6 their lawyer agreed to the postponement. At this point, their application had failed, because the Sept 30 deadline had passed. (Clearly not a very good lawyer.)
* There were additional developments in the case, and USCIS denied their applications again, based on new and different reasons. But this really didn't matter - once Sept 30 had passed, they would've been unable to get their green card anyway.

Here I am referring to my original statement again (which is the CIS policy). Read carefully this time. I specifically simplify your task by highlighting the important parts of what I said, because you did not get those parts before.

the rule is - not earlier than 90 days before the number becomes current. However, this rule works only for the same fiscal year. So, if your number become current on August, 1, you can submit on May, 3rd (90 days in advance). However, both you and CIS do not have any knowledge of current numbers for August 1st until May 18th. That is why you can submit only on May 18th or later.
Regarding your case (when the number becomes current on October 1st) you cannot submit before October 1st, because September 30th is a different fiscal year, even though current numbers are available much earlier.

This case (Taslima Sultana, Mohammad Salim vs. Tom Ridge, Maryann Gartner) was filed under very special circumstances. I-485 was filed on September 8, 2003 (which is fiscal year 2003), for DV-2004 case (for fiscal year 2004 program; the number became current right on October 1st). So, it was filed during a different fiscal year. That is why it was denied. Very much complient with the policy listed and quoted.

I ask you again to quote here relevant cases only. You only prove my point when you list cases which comply with the CIS policy.

I am getting rather tired of this, but I'll answer one last time, to make sure that people have all the facts.

I am also getting tired of arguing with persons who do not understand what a logical argument is, what a point of view is, and how to prove your point versus losing your point.

I am not going to answer raevsky's other arguments, accusations, etc. I just wish he would stop providing such definitive-sounding opinions when he doesn't know what he talking about - this can be really misleading to people.

All over again. Your example only proves my point. You should not argue if you do not have a point. That should be obvious. You cannot understand either what I am talking about or what you are talking about (that was you who said first I do not know what I am talking about). This is not rude - I am just repeating your own wording, just for the right cause. I understand what I am talking about, you do not. Sorry. It does not look fair if you call rude exactly what you do to others, but only when others use this type of wording to yourself. Do not behave rude yourself, and you will not be answered in that way.

you should really consider doing CP

That should be the case in most situations. But, as I mentioned, a person could be ineligible for CP, or could be afraid or otherwise reluctant to return to his or her home country for an immigrant visa interview.

 

[masematn]

I'm really tired of the nasty and rude argument, especially when the other side of it is repeatedly and provably wrong. Moderators may want to step in at some point.

Cool down, friend. This section of the forum is for information about DV lottery, so why not use personal messaging for anything personal. The lottery is btw created with "diversity" as its central idea, and most of the folks on this forum come from very diverse backgrounds, cultures, even mental traditions. I, for example, may not deal with people of certain confessions in real life, but I still find it appropriate for a virtual community. In other words, let's be more friendly.

 

[Ausmatt7]

I agree masematn, this thread was NOT created for people to argue and bicker and to see who is the supreme debator. If you are in a personal disgreement with someone, please keep it private. For any one who is new to the process, coming to this forum and is looking for information, they could easily be lost in the web of arguments. It is for them that I feel sorry.

I realize the points that each of you are trying to make regarding filing early. Some believe it is risky and some believe it is ok as long as you follow policy. Reading through several times this is my two cents:

If there are in fact known cases in which somone has filed early(b4 CN is current and during fiscal year) and had thier application rejected/sent back then you should do so at your own risk. Regardless of what any policy memorandums may state.

However, Ravesky certainly makes a compelling case that it is ok to submit your application 90 days before your case number is current as long as it is in your fiscal year. And it may be very true that this is actual policy and his evidence does support it. However, again I will say if there are known cases that have complied with everything that Ravesky stated (see his rule below) and still got rejected, I would submit early at your own risk. From reading through the forums I think we can all agree that there are inherent risks to AOS and doing things safely and learning from other mistakes will bode us well.

the rule is - not earlier than 90 days before the number becomes current. However, this rule works only for the same fiscal year. So, if your number become current on August, 1, you can submit on May, 3rd (90 days in advance). However, both you and CIS do not have any knowledge of current numbers for August 1st until May 18th. That is why you can submit only on May 18th or later.
Regarding your case (when the number becomes current on October 1st) you cannot submit before October 1st, because September 30th is a different fiscal year, even though current numbers are available much earlier.

 

[matutelandia]

Form to send at KCC

Guys, I would like to pleaaaaase finish the topic of "forms to send to KCC if you are doing AOS" This is my conclusion, I would like all of us either to agree or to correct it. Thanks a lot guys, this is a great forum:

"If you are planning to do AOS, then IT IS NOT necessary to send form DS-230 to the KCC (since this form express an intention to do CP), but IT IS necessary to send the form DSP-122, to let KCC know that we are interested on continuing the process through AOS. A letter is optional"

How many of you agree with this conclusion ?????

 

[raevsky]

I would correct it by saying it is advisable to avoid sending form DS-230 to KCC (since this form might express an intention to do CP)

 

[Ausmatt7]

After my email correspondance with KCC I will support what other have stated in this forum.

**If you are doing AOS you only need to submit dsp-122 to the KCC. Ds-230 has fees associated with it that you dont have to pay. No fees are associated with dsp-122. This form will let KCC know you are doing AOS and they will update your file accordingly. No further contact with KCC is required after this is sent.

**A $375 fee needs to be sent to the department of state using the form enclosed in your package under the heading "adjusting your status in the US". They will send you a stamped receipt back that you will need for your AOS application.

 

[matutelandia]

I need your advise

Guys, I need your opinion on my situation: I am currently under an H1B visa, which expires on Dec 13 2008, but i still can renew it for 3 more years. I have received a NL from KCC for the DV 2009. I am pretty sure that my number will be current on October 2008. This are my options:

1)Go ahead and renew my H1B visa (remember that expires Dec 13 2008) and also,send the I-485 in October2008 . This will give me peace of mind, since while waiting for the GC I dont have to worry about my legal status and work permit, it will be more expensive though.
2) Do not renew my H1B visa, send the I-485 along with a EAC request, and hope my employment authorization card comes before December 13. This is riskier, but cheaper.
3) Do CP, which, for I have read is much fuster. I could do CP in October. Here I wont have to renew my H1B.

I know this is a strictly personal decision, but if it was you, what would you guys do ?? Any advice is welcomed !!

 

[raevsky]

What exactly expires on Dec 13?
Your I-94?
Your I-797?
Your visa in the passport?
When is you number becoming current?

 

[dematra]

matutelandia,
my $0.02: If it seems that your CN will be current in October (or even November) I would say take care of that first. File I-485 & EAD request. By Dec 13th you'll know what progress you've made with AOS and EAD request and you can decide how to proceed with your H1B extenstion.

Since most employers pay for the H1B extention petition anyway, you might want to just let them go ahead and file for the extension. By the way - HB1 petitions are taking longer to process so chances are ,even if you apply for an extention in December, you won't have a decision by the time you interview for your DV AOS.

 

[dematra]

matutelandia,
Have you considered filing your Labor Cert & I-140 petion, just incase your DV AOS doesn't work out? (just in case)

 

[matutelandia]

raevsky: actually, everything expires on Dec 13, my I-797 and my visa/I-94. In other words, if by dec 13 2008 I don't either renew my H1B or get the EAD, I'll have to get out the country.

dematra: the thing is, if I wait until dec 13 to renew my H1B and I sitll haven't received the EAD, i won't be on a legal status. BTW, I started with my company the GC process through PERM last year, by everything got stucked on the I-140 (ability to pay) and is not moving, so DV is my best option so far.

 

[dematra]

matutelandia,
Three things to consider:
1) When you file your I-485 for your DV AOS and get the NOA recipt you are officially on "suspended stauts" as far as your H1B is concerned. So you really can't go out of status come Dec 13th or until your AOS is complete.

2) At your 3 yr mark on H1B you have something like 240 days grace period to file an extension as long as you are still with the original employer. (risky!!)

3) With the H1B extention - all you have to do is file the petion. Simply fill out I-129 and stick it into a mailbox then get back to work. You don't have to wait for a NOA to continue working. And you are not out of status as long as you have filed it.

I AM NOT A LAWYER!! I HAVE JUST HAD TO DEAL WITH USCIS LONG ENOUGH TO LEARN A FEW TRICKS

 

[matutelandia]

Background check

Question: I have seen many DV winners wondering whether they should go for AOS or CP, and in many cases depends on the Case number. What is the most consuming part of the process in the case of AOS, is it the backgrounfd check?
For example: your number becomes current in April 2009, if your background check (or even the total i-485 processing time) takes more than 8 months, are you screwed ????
So, in order for a AOS to be successful for dv 2009 winners, does the whole process have to be done by Set. 30 2009??

 

[plus07]

I agree masematn, this thread was NOT created for people to argue and bicker and to see who is the supreme debator. If you are in a personal disgreement with someone, please keep it private. For any one who is new to the process, coming to this forum and is looking for information, they could easily be lost in the web of arguments. It is for them that I feel sorry.

I completely agree. I have no interest in empty debates or personal arguments. Raevsky essentially came up with a rule, and then presented it in a definitive way, as if it was established USCIS policy. This can be very misleading to people new to DV and a real disservice. I felt I had to say something - even if I can't convince raevsky, for the benefit of new people.

I think you have summed up the debate in a fair way, so let me try to address your points. Maybe we won't all agree, but hopefully this will make our positions clear.

I realize the points that each of you are trying to make regarding filing early. Some believe it is risky and some believe it is ok as long as you follow policy. Reading through several times this is my two cents:

If there are in fact known cases in which somone has filed early(b4 CN is current and during fiscal year) and had thier application rejected/sent back then you should do so at your own risk. Regardless of what any policy memorandums may state.

However, Ravesky certainly makes a compelling case that it is ok to submit your application 90 days before your case number is current as long as it is in your fiscal year. And it may be very true that this is actual policy and his evidence does support it.

The problem is that his rule (# appears in latest visa bulletin + the application is filed within the fiscal year) doesn't appear in any USCIS policy document:

• The memo of Jan 19 1999 that he found on www.vkblaw.com says that you can file when the number appears in the latest visa bulletin. It doesn't impose the restriction that the application has to be filed within the same fiscal year.
  
• The memo of June 22 1999 that I referenced from Interpreter Reports can be interpreted to mean raevsky's rule. But this memo is written in reference to DV-1999, and in 2004 an USCIS District Director decided that it applied to DV-1999 only.
  
• The Q&A session of March 25 2008 rev. April 3 2008 says that you can file at any time within the fiscal year. It doesn't say one has to look at the visa bulletin. Etc, etc, etc

Now when there are several inconsistent memos and Q&A-s, one can always come up with a detailed enough rule that reconciles them. That doesn't mean it's actually USCIS policy.

A number of DV applicants (including myself) were told at INFOPASS to submit only when the number becomes current. The only thing we can conclude from this is that USCIS is ambiguous - if you submit early it's at your own risk.

However, again I will say if there are known cases that have complied with everything that Ravesky stated (see his rule below) and still got rejected, I would submit early at your own risk. From reading through the forums I think we can all agree that there are inherent risks to AOS and doing things safely and learning from other mistakes will bode us well.

These examples are not easy to find because he came up with a rule with two requirements. I can always come up with a detailed rule and then challenge you to find somebody who followed that exact rule and got rejected. That doesn't mean the rule is USCIS policy.

I don't have any personal interest or anything to gain from this argument. But for the benefit of the new people, I spent about 20 minutes on the forum and located an example that complies with the exact rule.

DV2007. Number current in November 2006, AOS delivered to lockbox on 5 October 2006.

Hi All,
My number will be current on November, though I had send my AOS to chicago lockbox on september 29 and it was delivered on Oct-5 2006, but they reject the case and return the package stating that early submission and ask to refile again when the number become current. So don't send the package before the number become current.

Neel

AOS (from H-1B) 2007AS00001xxx
09/29/2006 AOS Pkg to Chicago LockBox
10/28/2006 Rejection Recept; Reasion early submission.
11/04/2006 Resend Package
11/06/2006 Pkg Delivered
11/16/06 Checks Cashed
11/18/06: NOA's Received
11/25/06 FP Notice received
12/04/06 FP Done
12/04/06 FP Clear back to USCIS
12/08/06: Interview notice from local office
01/03/07 Interview & Case approved
01/08/07 Welcome Notice Received
01/08/07 Card Ordered
01/12/07 Card Received

There are quite a few cases when people submitted early and did not have a problem. People have to decide whether they want to take the risk - I outlined some of the factors in my previous message.

 

[raevsky]

Here the date of filing was in a different fiscal year. September 29 is 2006, and he won DV-2007. The same thing.

The original memo does not mention "same fiscal year" because the purpose of the memo was not to change the rule that filing should be in the same fiscal year, that had existed before. It was giving flexibility within the year, and the assumption still was the year has to be the same. Filing should still be done in the year of the program.

The Q&A session of March 25 2008 rev. April 3 2008 says that you can file at any time within the fiscal year. It doesn't say one has to look at the visa bulletin. Etc, etc, etc

That does not say file any time within the year. That says in A portion filing should be done any time within the fiscal year [in addition to previous conditions listed in Q portion - acceptance in the mailroom during 90 day period]. The person asking forgot to list the condition about the fiscal year, or assumed it was obvious. The person answering did not assume it was obvious, and corrected the question info by providing additional limitation (about same fiscal year). Which means both conditions should be satisfied. Same as formulated before.

The memo of June 22 1999 that I referenced from Interpreter Reports can be interpreted to mean raevsky's rule. But this memo is written in reference to DV-1999, and in 2004 an USCIS District Director decided that it applied to DV-1999 only.

The memo was issued in the middle of fiscal 1999. So, the situation when filing was done before the beginning of fiscal 1999 was not mentioned, because it was obvious. So, that situation of that memo did not apply to a case when filing was done in 2003, but the program was 2004. So, when he said it applied to 1999 only, it meant they specifically did not mention the fiscal year condition because the 1999 memo was issued in the middle of the year. For other years the fiscal year limitaion was important, and it was not satisfied for that case.

 

[dematra]

I just had an idea! How about someone creates a new thread dedicated to arguments about whatever. Then folks that want to debate extensively on whatever issue can do it there. Then when they come to a conclusion they will come back to this thread and let the rest us know the outcome.
I am thinking that at this rate this thread will be useless by October coz we'll be debating about postage stamps. And please (& kindly) a little civility in tone would be appreciated.

 

[plus07]

Here the date of filing was in a different fiscal year. September 29 is 2006, and he won DV-2007. The same thing.

The date of filing is when it's delivered to USCIS. This is the date that appears in the Notice of Action. This is the same for all programs - H1B, OPT, family GC, etc.

In this case, it was delivered on Oct 5, so it was in the 2007 fiscal year.

 

[plus07]

Question: I have seen many DV winners wondering whether they should go for AOS or CP, and in many cases depends on the Case number. What is the most consuming part of the process in the case of AOS, is it the backgrounfd check?

It depends - some cases go through very quickly, some go through very slowly (even if the background check clears quickly), and some get completely stuck at the background check stage.

This often happens for no particular reason. USCIS is a large organization that operates at many geographic location. Sometimes people had months-long delays simply because part of a person's file was at one location and part at another, and USCIS was waiting for it all to ship to the interviewing office.

Conventional wisdom is that people from the Middle East have a higher risk of getting stuck in namecheck. This may be true, but people from all over the world get stuck in the namecheck, from developed English-speaking countries to the xUSSR. Read the DV2008-AOS and DV2007-AOS threads for examples.

See BarbaraLamb's description of her AOS process. It's a very good description of all kinds of complications and how you can push for things - with a happy ending.

For example: your number becomes current in April 2009, if your background check (or even the total i-485 processing time) takes more than 8 months, are you screwed ????

Yes. 8 months don't pass all at once though. People usually follow-up with their cases, try to nudge them forward by scheduling INFOPASS appointments, writing to their congressmen, hiring lawyers etc. Many succeed, but some do fail in the end. See the DV2007-AOS thread.

So, in order for a AOS to be successful for dv 2009 winners, does the whole process have to be done by Set. 30 2009??

Yes. Sometimes immigration officers, USCIS phone representatives, or immigration lawyers may not know the deteails of DV, and may say that it has to be filed by Sept 30. That's not true - it has to be completed by Sept 30 or it's dead.