DV - disqualified, but still asked to go for an interview
- Thread starter mariachy
- Start date
If the child was not yours according to Russian laws. For instance, if his birth ccertificate did not list you as a father.
Also, there are some chances if you were trying to prove through the court at that monent that the child was not yours.
Not knowing that the child exists might be not enough. For instance if you knew she was pregnant and later you split, you could expect your child would be born.
Thank You for you reply.
That means the office was trying to help you. He had a right to submit the case tfor advisory opinion, what he did. If you were trying to prove you did not know wbout the child, you needed a good proof. They might need to investigate how good your proof is.
Mambo-jambo aside, if you want to do AOS, you have to let KCC know of your intention to do AOS when you send your initial forms. They, then, will send you a letter acknowledging your intent to do AOS. USCIS will want to see that letter in your application. Now, if you haven't included your child in your DV entry but later you did it in DS 230, good luck getting that letter from KCC.
Now the mambo-jambo:
Bureau of Consular Affairs; Registration for the Diversity Immigrant (DV-2013) Visa Program
SUMMARY
This public notice provides information on how to apply for the DV-2013 Program. This notice is issued pursuant to 22 CFR 42.33(b)(3) which implements sections 201(a)(3), 201(e), 203(c), and 204(a)(1)(I) of the Immigration and Nationality Act, as amended, (8 U.S.C. 1151, 1153, and 1154(a)(1)(I)).
Instructions for the 2013 Diversity Immigrant Visa Program (DV-2013)
The Diversity Immigrant Visa Program is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA).
So what is this 8 U.S.C. 1151, 1153, etc?
8 U.S.C.
United States Code
Title 8 - ALIENS AND NATIONALITY
CHAPTER 12 - IMMIGRATION AND NATIONALITY
SUBCHAPTER II - IMMIGRATION
Part I - Selection System
Sec. 1151 - Worldwide level of immigration
Also
8 USC § 1153 - Allocation of immigrant visas
8 USC § 1154 - Procedure for granting immigrant status
So this is the basis of DV program, it's the immigration law, as in United States Code. It is not some departmental internal memo. Now if you read these sections, the law says Secretary of State regulates and conducts the DV program following these laws (which by the way also state that Attorney General gets to say what country and region gets how much quota). So Secretary of State gets to say whose entry is eligible and whose entry is not. USCIS better follows the same immigration laws that say Secretary of State regulates the DV program eligibility. Now if they don't or can't follow the immigration law, that's a different story. But it's the law.
So what happens if you do not list your child in DV entry, win the lottery, print the selectee letter, come to US somehow, submit DSP-122 (but NOT DS 230) to KCC, get your AOS acknowledgement letter somehow, and submit I-485 to USCIS including your child ? Chances are you get a green card, if DoS and USCIS have no communication whatsoever. So your IO submits a request for a visa number during your interview, and you pray to God that they do not check your Case Number against some database (that by law DoS maintains), if they haven't already done so. You hope to God that nobody bothered to scrutinize your eligibility. Can you get a green card like that ? You probably can if you are lucky and if the system is broken. Is it lawful ? It's not.
Submitting DS-230 with your child listed there who was not a part of original entry before is a sign for DOS to process the application to completion and to possibly deny your case. DoS cannot start processing your application without DS-230 being submitted. They do not have the authority.
So, if your submit i-485 and follow other instructions for aos, but never submit DS-230, you are out of dos jurisdiction and are transferred to aos. However, if you submit both i-485 and ds-230, dos could process your application to completion.
So, if your submit i-485 and follow other instructions for aos, but never submit DS-230, you are out of dos jurisdiction and are transferred to aos. However, if you submit both i-485 and ds-230, dos could process your application to completion.
USC (United States Code) and INA are laws, and USCIS and DOS both honor them. CFR (including 22 CFR) are DOS regulations and USCIS does not honor them. 9 FAM is also DOS regulations and USCIS does not honor them.
The fact that DOS administers DV program means that it starts it and it defines how to pass jurisdiction to USCIS for AOS. So, both agencies agreed that if no DS-230 submitted but I-485 is submitted, DOS sends the case for AOS to USCIS. How exactly USCIS processes AOS is out of DOS jurisdiction, DOS does not have authority over AOS process.
DOS clearly cannot adjudicate AOS cases, and denial would be an adjudication. So if I-485 was submitted and DS-230 was not, the case goes out of DOS jurisdiction to be adjudicated by USCIS. USCIS does not honor or even consider 22 CFR or 9 FAM in the adjudication process.
What 9 FAM says is that once DS-230 was submitted, DOS has to process visa application to completion, so that the case would not we withdrawn from DOS jurisdiction and transferred to USCIS jurisdiction to be adjudicated under USCIS regulations instead of DOS regulations, what means different set of rules. Because DOS administersthe program, it has an authority to issue those guidelines.
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If the whole process were regulated by law rather than by 22 CFR or 9 FAM, USCIS would honor it. Because it is not like that, USCIS has to follow the law about how to process AOS, and no law specifies that the case has to be denied if a child was not listed. That would mean for USCIS following DOS regulations is not following the law. There are laws about how to process AOS, and USCIS perfectly follows them adjudicating DV cases.
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Among cases where a person is eligible for AOS while he or she is not in the US at the moment, there are cases where a person could get H-1B or L-1 status to work in the US and process AOS at the same time. There are similar statuses where something like that could be done as well. Statuses B-1 or B-2 are not among those. Statuses F-1 or J-1 under certain circumstances could be among those.
http://www.travel.state.gov/visa/visa_4762.html
Moreover, if you did not include on your entry child #1, succeded in AOS (maybe together with that child), then your child #2, who was listed on your online entry, could still do successfull CP.
This text definitely assumes that your AOS would succeed even if your child or spouse was not listed on your online form. However, in this case after you successfully adjust status, they cannot do consular processing.
Moreover, if you did not include on your entry child #1, succeded in AOS (maybe together with that child), then your child #2, who was listed on your online entry, could still do successfull CP.
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Yes, sure. Read http://www.ulitka.com/разная_иммигр...в_заявку-есть_ли_шансы_на_интервью-23236.html
Isn't it your case?
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NuvF
Member
My 2c....
Raevsky presents his 'AoS is OK' hypothesis as may be applied in for some hypothetical situations as far as kids are concerned. Like, Kid may in fact is a PR/USC, above 21, may not count as a child 'cos BC data is different etc etc. (I don't think he is done counting all 'plausible' options yet, per his imaginations!!) He is yet to convince that for a 'reasonably dumb' case (applicant) AoS would be ok!
Anyways, for the sake of argument he is conveniently omitting a 'LEGAL FACT' in presenting the DoS-DHS 'jurisdiction' difference.
Per INA, for DV, who is charged with conducting/admin. the program? ---> DoS/Sec. of State. (CP is directly under them)
What is the 'missing link' in Raev's 'AoS is OK' argument?-----> The KCC/DoS 'file', the 'Winner's Dossier' the DoS has and send to the FO/IO to use/cross chk. in adjudicating AoS, WHICH INCLUDE legally binding instructions issued by the sec. of state as the program admin.
Can DHS/IO ignore those instructions in what to 'look for' in adjudicating a DV case presented for AoS -------> NO!
I have 1st hand exp. on this when I was at my AoS stage in DV09, the IO waved those printed instructions from my file and said this is his 1st DV case and he needs to 'study' those KCC instructions. Even after a month (Aug 09) the reply he has given to my senator's office was the same, at which I got their help in transferring my file for CP. Later I learned that his issue was ~45 day early filing rule (which has nothing to do with KCC), but he proved the fact that a set of DoS instructions exist for AoS and he needs to study/follow those.
If no such 'link' or 'jurisdiction' is there with rules/instructions, then all you have to do is just present your DV winner notice with just things to satis i-485 (not even DoS fee receipt!!) and go yahooooo!....eh.... a FAT DREAM!
The bottom line is, if the applicant is dumb and make mistakes not following rules he will lose the case, on the same way if the IO/CO is dumb, then a 'wrong' i-485/DS 230 would 'win', and that's the only way for Raev's 'AoS is OK' hypothesis to come true!!
Best!
Raevsky presents his 'AoS is OK' hypothesis as may be applied in for some hypothetical situations as far as kids are concerned. Like, Kid may in fact is a PR/USC, above 21, may not count as a child 'cos BC data is different etc etc. (I don't think he is done counting all 'plausible' options yet, per his imaginations!!) He is yet to convince that for a 'reasonably dumb' case (applicant) AoS would be ok!
Anyways, for the sake of argument he is conveniently omitting a 'LEGAL FACT' in presenting the DoS-DHS 'jurisdiction' difference.
Per INA, for DV, who is charged with conducting/admin. the program? ---> DoS/Sec. of State. (CP is directly under them)
What is the 'missing link' in Raev's 'AoS is OK' argument?-----> The KCC/DoS 'file', the 'Winner's Dossier' the DoS has and send to the FO/IO to use/cross chk. in adjudicating AoS, WHICH INCLUDE legally binding instructions issued by the sec. of state as the program admin.
Can DHS/IO ignore those instructions in what to 'look for' in adjudicating a DV case presented for AoS -------> NO!
I have 1st hand exp. on this when I was at my AoS stage in DV09, the IO waved those printed instructions from my file and said this is his 1st DV case and he needs to 'study' those KCC instructions. Even after a month (Aug 09) the reply he has given to my senator's office was the same, at which I got their help in transferring my file for CP. Later I learned that his issue was ~45 day early filing rule (which has nothing to do with KCC), but he proved the fact that a set of DoS instructions exist for AoS and he needs to study/follow those.
If no such 'link' or 'jurisdiction' is there with rules/instructions, then all you have to do is just present your DV winner notice with just things to satis i-485 (not even DoS fee receipt!!) and go yahooooo!....eh.... a FAT DREAM!
The bottom line is, if the applicant is dumb and make mistakes not following rules he will lose the case, on the same way if the IO/CO is dumb, then a 'wrong' i-485/DS 230 would 'win', and that's the only way for Raev's 'AoS is OK' hypothesis to come true!!
Best!
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In order to overturn it you need either to find an aos instruction, supporting disqualification, or demonstrate an example of disqualification. Btw, I have an example of io being ok with that. But that case started from cp and dos gotmit back after successfull aos interview and denied.
It happened already many years ago soon after dos included this disqualifying clause into it's regulations. A guy from moldova did not include his 14-year old daughter, he was in the us on h-1, and his daughter was in moldova. He sumbitted ds-230 stating his daughter there, and dsp-122 asking for aos. His interview at aos was ok, they told him the decision is going to be in a few days, but a couple of days later he was told his case was transferred to dos because he submitted ds-230. They scheduled an interview with him in the consulate in bucharest, and he was denied because of his daughter.