DV 2018 AOS Only

[Sm1smom]

I realize that I did not explain the situation properly before: So, our tickets were purchased on January 2017. My wife registered for the exam (for June 20) sometime in January-February. This exam can only be taken in the US. We have records for that. Our wedding was planned from before. So, when we entered the US, she had her exam in 25 days. She took the exam. Because the Medical Residency program is a long process, she applied and now she has interviews coming up in October through January. Also, she was planning on taking another exam for USMLE (Step 3) sometime in January (in case she gets to stay till that time). But, we came to know about the DV lottery results the night we landed here. In a hurry, we googled and found out that DS 260 is the next step. So, we decided we could submit that form without thinking of the consequences. I hope I made this more clear. In this case, do you recommend continuing with AOS or flying back to our country and doing CP (in which case my wife will miss interviews and probably lose the admission for the residency program for the next year).
Als0, I am thinking that I should probably get a lawyer at this point. Do you have any suggestions?

Thank you!

It's really your call on how you wish to proceed. I already told you what I will do if I was in your shoes, and this was even before knowing of your DS260 submission right after your arrival.

You may hire a lawyer or pay to get their opinions if you like. I do know for certain there's nothing an immigration lawyer can do to convince an IO who decides to make an issue of your preconceived immigrant intent of filing AOS while entering the US on a NIV. Your DS260 submission date clearly attests to that.

Also nothing any lawyer can do if your wife falls out of status before her AOS petition is considered filed.

 

[Britsimon]

Hello, today we had an infopass. Spoke to an officer and after giving him all the details about early filing memo, he went "upstairs" to speak to the AOS supervisor, according to him the later said our process had been terminated due to early filing and there's nothing we can do. He said we should submit the applications again, which we'll do.

I have a few quetions:

1)Can we get our package back from Chicago?

2)If the CS gave us a copy of the medical, would it work for the new package?

3)We can use the same receipt of $33o we used in the first package for the DV payment, right?

4) Can we get an application fee waiver because it was their mistake? or should we just pay again?

Thank you very much for your help

Mom will no doubt answer these. But re question 4 - did they admit they had made the mistake? Did you ask them if you needed to pay again because of their mistake???

 

[Sm1smom]

Hello, today we had an infopass. Spoke to an officer and after giving him all the details about early filing memo, he went "upstairs" to speak to the AOS supervisor, according to him the later said our process had been terminated due to early filing and there's nothing we can do. He said we should submit the applications again, which we'll do.

I have a few quetions:

1)Can we get our package back from Chicago?

2)If the CS gave us a copy of the medical, would it work for the new package?

3)We can use the same receipt of $33o we used in the first package for the DV payment, right?

4) Can we get an application fee waiver because it was their mistake? or should we just pay again?

Thank you very much for your help

While this is sad, I'm not surprised by what they told you. I did mention in one of my previous response to you that your the FO, rather than admit the IO messed up, will probably pull out the early filing card as a justified reason for the outcome. So to answer your questions:

1. No you cannot get that package back - it has already been adjudicated and is now considered part of your USCIS immigration file.

2. Yes.

3. Yes.

4. No you cannot get a fee waiver based on that. You need to pay the filing fees again - that was a gamble you decided to take on your own despite all the warnings you were given.

 

[Sm1smom]

Mom will no doubt answer these. But re question 4 - did they admit they had made the mistake? Did you ask them if you needed to pay again because of their mistake???

The FO is not treating the denial as a mistake, they're justifying it based on early filing. They wouldn't ask her to submit a fresh application if they're admitting their 'mistake' - they would have simply re-opened the petition. We've had reports in the past of AOSers in a similar situation and their FO reopened the petition.

 

[geol8]

They didn't admit their mistake, they said the mistake was mine beacuse I decided to submit the application on 2017 Fiscal Year regardless of what the memo says.

I asked why did Chicago accepted the package and he said: "because that's what they do, it's a fee for service"

Said I could resubmit and write a note or something asking for a fee waiver.

 

[Britsimon]

The FO is not treating the denial as a mistake, they're justifying it based on early filing. They wouldn't ask her to submit a fresh application if they're admitting their 'mistake' - they would have simply re-opened the petition. We've had reports in the past of AOSers in a similar situation and their FO reopened the petition.

So in that case I am shocked that geol8 "let them" take that line. I would have persisted - the memo is absolutely clear, and while they might not "want" to admit their mistake, it was most certainly one.

 

[geol8]

So in that case I am shocked that geol8 "let them" take that line. I would have persisted - the memo is absolutely clear, and while they might not "want" to admit their mistake, it was most certainly one.

That's a shame, he said that policies are always changing, that "the boss" can change them anytime, that we didn't have priority to get a GC for been based on DV Lottery, that there are other cases with more priority. I think he is not aware of the process.

Last week we called to USCIS, they opened a "Service Request due to administrative error", it shows on my USCIS account. Said it could take up to 30 days to be evaluated. I mentiones this to the officer and he said : " you have done more by coming here to speak in person than what you could get with that Service Request"

Should we wait for this time or just resubmit our application?

 

[Sm1smom]

So in that case I am shocked that geol8 "let them" take that line. I would have persisted - the memo is absolutely clear, and while they might not "want" to admit their mistake, it was most certainly one.

Regardless of what the memo says, there is the fact that she filed before her FY was current. Their argument is that she filed in the wrong FY (2 months before before the start of her FY to be precise) - and they do have a point. I do not believe any amount of argument would have changed that.

This is precisely why I've always counseled those current in Oct/Nov to be weary of relying on the 2013 memo to justify early filing.

 

[Britsimon]

They didn't admit their mistake, they said the mistake was mine beacuse I decided to submit the application on 2017 Fiscal Year regardless of what the memo says.

I asked why did Chicago accepted the package and he said: "because that's what they do, it's a fee for service"

Said I could resubmit and write a note or something asking for a fee waiver.

That's just nuts.
I would have gone step by step.
First - establish that the person is a USCIS employee.
Second - point out the words on the memo that say "this PM applies to and is binding on all U.S. Citizenship and Immigration Services (USCIS) employees."
Third - ask them is they believe the memo is real
Fourth - ask if they aware of policy that supercedes the policy described in the memo.
Fifth - ask them to read the memo with you paying particular attention to the section that says you can file before the start of the fiscal year and gives a clear example of such dates referring to August 9th VB for October availability.
Sixth - ask why they are not following the described policy.
Seventh - keep asking for more senior supervisors, repeating all steps 1 through 6.

My infopass lasted 75 minutes. The IO thought we were done after less than the first 5 minutes. She was wrong, and got 70 more minutes of me (polite but firm).

AOS is a privilege, not a right, but nevertheless we are entitled to be treated within the terms of stated policy (made publicly available).

 

[Britsimon]

Regardless of what the memo says, there is the fact that she filed before her FY was current. Their argument is that she filed in the wrong FY (2 months before before the start of her FY to be precise) - and they do have a point. I do not believe any amount of argument would have changed that.

This is precisely why I've always counseled those current in Oct/Nov to be weary of relying on the 2013 memo to justify early filing.

I agree people should be weary, and I also advised geol8 to ONLY file early if absolutely NEEDED (and pointed out the reason given was not a NEED in my opinion). But nevertheless, the policy is clear.

"On the other hand, these guidelines do apply to adjustment applications that are filed on the basis of advance notification in the prior year’s September Visa Bulletin for the next fiscal year’s DV numbers. For example, the September 2013 Visa Bulletin will contain advance notification of FY 2014 DV rank cut-off numbers for October 2013. Persons having a rank cutoff number below that listed in the advance notification will be eligible to file their FY 2014 DV application immediately upon publication of the September 2013 Visa Bulletin (i.e., on or about August 9, 2013)."

 

[Sm1smom]

I agree people should be weary, and I also advised geol8 to ONLY file early if absolutely NEEDED (and pointed out the reason given was not a NEED in my opinion). But nevertheless, the policy is clear.

"On the other hand, these guidelines do apply to adjustment applications that are filed on the basis of advance notification in the prior year’s September Visa Bulletin for the next fiscal year’s DV numbers. For example, the September 2013 Visa Bulletin will contain advance notification of FY 2014 DV rank cut-off numbers for October 2013. Persons having a rank cutoff number below that listed in the advance notification will be eligible to file their FY 2014 DV application immediately upon publication of the September 2013 Visa Bulletin (i.e., on or about August 9, 2013)."

Well the memo also clearly says:

This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
​

The PM is intended to be a guidance - the FOs are not mandatorily required to follow or honor it. It does not confer a right on any petitioner relying on it. It is not enforceable.

​

 

[Britsimon]

Well the memo also clearly says:

This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
​

The PM is intended to be a guidance - the FOs are not mandatorily required to follow or honor it. It does not confer a right on any petitioner relying on it. It is not enforceable.

​

"Enforceable" meaning through litigation. I am not suggesting litigation.

I am pointing out that they need to explain why they are not following the policy that is binding on all USCIS employees. "Binding" means they ARE required to follow the policy, but the section you point out we cannot force them to do it through litigation.

bind·ing
adjective

1. 1.
   (of an agreement or promise) involving an obligation that cannot be broken.

Geol8. If you can afford to spend the money to re-file then by all means do that as that would be the least "confrontational" way to resolve your case.

If this were my case I would be booking another infopass and plan to be there an hour, or two, or whatever it took. My own infopass did involve several of the steps I described above. I was arguing to be scheduled for interview which is a much weaker point to argue than yours (because the memo does not stipulate you are entitled to the fastest interview possible). However the memo DOES describe that your filing was correct. I would have no concern arguing that point.

 

[Xarthisius]

Good afternoon.
Today I received the Denial Notice of my case, it says:

" For fiscal year 2017, 50.000 Diversity Visas were available. As of September 8, 2017, the DOS announced that the maximum level of available DV has been reached for fiscal year 2017. Unfortunately, the processing of your application was not completed before the maximum level of available DV has been reached for fiscal year 2017. Because the maximum level of available DV has been reached for fiscal year 2017, USCIS cannot grant AOS to you as DV applicant. There is no evidence to indicate that an inmigrant visa is inmediately available to you on any other basis. You do not qualify to adjust status, and, therefore, USCIS must deny your Form I-485, See INA 245 (a) (3).

You may not appeal this decision. However, if you believe that the denial is in error, you may file a motion to reopen or a motion to reconsider using Form I-290B."

Isn't that ^^ the reason for the initial denial? It's clearly wrong, since @geol8 is FY2018 selectee. Wouldn't it make sense to argue that denial based on the above was USCIS's mistake? Especially during an October infopass, so that they cannot fallback to "early filling".

 

[geol8]

"Enforceable" meaning through litigation. I am not suggesting litigation.

I am pointing out that they need to explain why they are not following the policy that is binding on all USCIS employees. "Binding" means they ARE required to follow the policy, but the section you point out we cannot force them to do it through litigation.

bind·ing
adjective

1. 1.
   (of an agreement or promise) involving an obligation that cannot be broken.

Geol8. If you can afford to spend the money to re-file then by all means do that as that would be the least "confrontational" way to resolve your case.

If this were my case I would be booking another infopass and plan to be there an hour, or two, or whatever it took. My own infopass did involve several of the steps I described above. I was arguing to be scheduled for interview which is a much weaker point to argue than yours (because the memo does not stipulate you are entitled to the fastest interview possible). However the memo DOES describe that your filing was correct. I would have no concern arguing that point.

We have an infopass for next tuesday, I guess we'll try again to get a solution, thank you again for your opinions

 

[Britsimon]

Isn't that ^^ the reason for the initial denial? It's clearly wrong, since @geol8 is FY2018 selectee. Wouldn't it make sense to argue that denial based on the above was USCIS's mistake? Especially during an October infopass, so that they cannot fallback to "early filling".

No - this was denied for filing too early - nothing to do with 2017 exhaustion of visas.

 

[Xarthisius]

No - this was denied for filing too early - nothing to do with 2017 exhaustion of visas.

Exactly my point. But @geol8 received an official response from USCIS stating that, which is utter and total BS on USCIS part.

 

[maxplank]

It's really your call on how you wish to proceed. I already told you what I will do if I was in your shoes, and this was even before knowing of your DS260 submission right after your arrival.

You may hire a lawyer or pay to get their opinions if you like. I do know for certain there's nothing an immigration lawyer can do to convince an IO who decides to make an issue of your preconceived immigrant intent of filing AOS while entering the US on a NIV. Your DS260 submission date clearly attests to that.

Also nothing any lawyer can do if your wife falls out of status before her AOS petition is considered filed.

Thanks a lot, mom! We are considering to do CP now and will send the DS 260 unlock request to KCC. So, our interview date would probably not come for 2-3 months. My wife has reasons to stay here for her interviews. After we have changed to CP, do you advise filing an extension of stay (she has 2 months left right now) request for my wife? If a decision has been made on her application before her expiration date, then she will find out if she can stay or not. If she does not hear a decision before her expiration date, she will leave the country before that date. Is there any other consequence I should be aware of before doing this? I do not want to repeat the same level of negligence this time.

 

[mk77]

hi everybody.
I am currently in the US on a f-1 visa and I was selected for the 2018 dv lottery but my CN is very high (AF34xxx) so I would like to know around what time will my CN become current. thanks

 

[Sm1smom]

"Enforceable" meaning through litigation. I am not suggesting litigation.

I am pointing out that they need to explain why they are not following the policy that is binding on all USCIS employees. "Binding" means they ARE required to follow the policy, but the section you point out we cannot force them to do it through litigation.

bind·ing
adjective

1. 1.
   (of an agreement or promise) involving an obligation that cannot be broken.

Geol8. If you can afford to spend the money to re-file then by all means do that as that would be the least "confrontational" way to resolve your case.

If this were my case I would be booking another infopass and plan to be there an hour, or two, or whatever it took. My own infopass did involve several of the steps I described above. I was arguing to be scheduled for interview which is a much weaker point to argue than yours (because the memo does not stipulate you are entitled to the fastest interview possible). However the memo DOES describe that your filing was correct. I would have no concern arguing that point.

guid·ance
ˈɡīdəns/
noun

1. 1.
   advice or information aimed at resolving a problem or difficulty, especially as given by someone in authority.

The legality of a guidance document is actually one of the things I deal with at work on a day to day basis.

This memo is clearly intended to be a guidance document to assist USCIS in handling DV based AOS petitions. It does not mean IMO, the FOs are obligated to abide by it. It also does not mean the FO is required to explain failure to abide or follow the memo to the petitioner. The memo does not constitute a right or a benefit to anyone relying on it as a basis of early filing.

 

[Sm1smom]

Thanks a lot, mom! We are considering to do CP now and will send the DS 260 unlock request to KCC. So, our interview date would probably not come for 2-3 months. My wife has reasons to stay here for her interviews. After we have changed to CP, do you advise filing an extension of stay (she has 2 months left right now) request for my wife? If a decision has been made on her application before her expiration date, then she will find out if she can stay or not. If she does not hear a decision before her expiration date, she will leave the country before that date. Is there any other consequence I should be aware of before doing this? I do not want to repeat the same level of negligence this time.

An extension of stay takes months to be adjudicated, I'm certain she will not get a response by the end of her current authorized stay. So your call if you should still want to file for it.