2014hopeful
Registered Users (C)
Yesterday I was approved for my Green Card after a gruelling interview at the Sydney Consulate. I thought I would share my experience with you so that others might benefit from what I have learnt through this process. Apologies for the length of this post, but I want to be thorough.
1. About me
I was born in October 1979 in the UK, a non-chargeable country for the purposes of the diversity visa lottery. To qualify for the diversity visa lottery, my only option was therefore to fall into one of the exceptions to the rules on chargeability (detailed below) and to cross-charge to my parents’ country of origin (Australia).
My parents moved to the UK in September 1976 so that my father could pursue a master’s degree. He finished studying in October 1978 and then my parents spent the next twelve to fourteen months travelling around the UK and Europe. They returned to Australia a couple of months after my birth. They were in the UK for just over three years. They subsequently returned to the UK in 1986 and lived there until 1998. I stayed until 2004. I hold dual Australian and British citizenship.
2. The Exception to Chargeability Rules
In order to cross-charge to my parent’s country of birth, I had to demonstrate that I fell within the exception to the rules on chargeability contained in s 202(b)(4) of the Immigration and Naturalization Act 1965:
To fall within this exception, I therefore had to prove two elements:
Point 1 was straightforward to prove. My parents’ passports show their birthplaces as being Australia. Point 2 was more complex and my whole case hinged upon my being to prove this residence requirement.
3. What does it mean to ‘have a residence’?
3.1. Diversity Visa Rules
Page 7 of the Instructions For The 2014 Diversity Immigrant Visa Program (DV-2014) states as follows:
3.2. Foreign Affairs Field Manual
The Department of State Field Manual provides guidance to decision-makers on the law and its interpretation. It is available here: http://www.state.gov/m/a/dir/regs/fam/. Part 9 FAM 42.12 explains the rules of chargeability. Part (e) of 22 CFR 42.12 Rules of Chargeability explains that:
I apologise if the reference to the Foreign Affairs Manual is incorrect. I am not quite sure how to cite it correctly.
4. Proof and Supporting Documents
On the basis of the Diversity Visa Rules and Foreign Affairs Manual, I therefore had to prove one of the following:
It is apt at this point to say something about the standard of proof which I had to meet. According to part 11.1(c) of the USCIS Adjudicator’s Field Manual (available at http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-15.html), the standard of proof which applicants must meet is the ‘preponderance of the evidence’. This is the equivalent under UK/Australian law to the ‘balance of probabilities’. That is, the applicant must prove on the preponderance of the evidence/balance of probabilities that what s/he is trying to prove is true. It does not mean that the applicant must prove his/her claims to be absolutely true.
This standard of proof was helpfully explained in In the Matter of EM: In Adjustment of Status Proceedings (Interim Decision #3113) (available at http://www.justice.gov/eoir/vll/intdec/vol20/3113.pdf):
Note that I was unable to find a more authoritative case than the above on this standard of proof, although I’m sure there is one.
The important thing to take away here is that if you are trying to prove something, you don’t have to prove 100% that it’s true, only that it’s more likely than not true. This lowers the standard of proof. Indeed, the USCIS Adjudicator’s Field Manual states (in part 11.1(c)) that:
5. My Supporting Documents
To support my contention that my parents were not resident in the UK, I submitted the following evidence:
Note that I had no proof of when they left the UK and no primary evidence of what they were doing in the period between my father’s graduation in 1978 and my birth in 1979. To me, this evidence seemed a bit flimsy, but in light of what I had discovered about the standard of proof, I decided that it might just be enough to prove my case ‘on the preponderance of the evidence.’
6. The Interview
Let me preface this by saying that this was one of the most stressful experiences I have ever had. Had I been less prepared, it would have been worse. If you’re going to go through this process, be prepared!
The consular official (let’s call her CO1) went through my documents one by one and on seeing my UK birth certificate, said that she needed to check whether I was eligible for the lottery. She sent me to sit down. She called me again and told me I was ineligible since I was born in the UK. I explained to CO1 my situation, as detailed above, and that I thought I fitted into one of the exceptions to the rules regarding chargeability. CO1 was not convinced. I gave her the statutory declarations (detailed above) and she was still not convinced. She gave me the option to withdraw my application at this point in time, or to pay the USD330 processing fee to proceed with my interview. I asked her honest opinion of the evidence I had provided and she told me that it did not look promising. She mentioned that the exceptions to the rules on chargeability normally only apply to people posted by foreign companies or governments to non-chargeable countries. At this point, I referred her to page 7 of the Diversity Visa Instructions 2014 (detailed above) which say that a person will not usually be considered a resident if they are in the country studying temporarily. She said that she was unaware of this but in any case, a period of three years would usually be deemed to amount to residency. At this point, I told her that I was willing to pay the fee and proceed, if for no other reason than to have the conversation. To me, USD330 seemed a modest amount to pay for something which could potentially change my life. I paid the fee and was sent to sit down again.
After half an hour of waiting, I was called to see a second consular official (CO2). CO1 had been very friendly and very helpful, while doubting that I was eligible for the visa. CO2 showed no emotion and was very stern. She looked through my documents and seemed satisfied until she reached the statutory declarations. She asked what they were and I explained the situation. She then proceeded to ask a series of very detailed questions regarding my parents’ and my backgrounds, including:
Some of these I was unable to answer, particularly the questions regarding my parents’ visa status. All I was able to confirm was that they had never had UK citizenship and to my knowledge, my father was sponsored by a company to go there in the 80s. I wasn’t sure why this was relevant as it had nothing to do with their status at the time of my birth, but of course, I wasn’t going to argue.
Interestingly, CO2 accepted my explanation that my parents had left the UK shortly after my birth with no primary evidence to support this. It was supported by their statutory declarations, but I let CO2 know that I had tried to get a record from the UK Border Agency but that they only keep incoming, not outgoing records. She said she wasn’t surprised and that in any case, they would be unlikely to have records stretching back to the 70s. I sensed a chink in her armour at this stage and felt that she was beginning to accept my story.
After this intense period of questioning, CO2 started to ask me the standard questions about my intentions in the US and what I would do for work. This was when I relaxed slightly because it seemed to me that she wouldn’t ask these if she had determined me to be ineligible. Indeed, after only a couple of brief questions along this line, she told me that she was satisfied that I fell within the exception the chargeability rules and that I was eligible to cross-charge to my parents’ country of origin. With that, she closed my file and told me to expect my passport back in a week. It was an enormous relief and I almost collapsed when I left the Consulate.
7. And finally...
I apologise again for the length of this post, but I thought it was important to be thorough. I guess the important thing to note if you’re in a similar situation is that you should be very well prepared, know your own background extremely well and get ready for some intense questioning. I’m sure it helps also to know the law and policy in this area, which is why I included it in some detail above.
I hope this was helpful to someone! USA here I come!
1. About me
I was born in October 1979 in the UK, a non-chargeable country for the purposes of the diversity visa lottery. To qualify for the diversity visa lottery, my only option was therefore to fall into one of the exceptions to the rules on chargeability (detailed below) and to cross-charge to my parents’ country of origin (Australia).
My parents moved to the UK in September 1976 so that my father could pursue a master’s degree. He finished studying in October 1978 and then my parents spent the next twelve to fourteen months travelling around the UK and Europe. They returned to Australia a couple of months after my birth. They were in the UK for just over three years. They subsequently returned to the UK in 1986 and lived there until 1998. I stayed until 2004. I hold dual Australian and British citizenship.
2. The Exception to Chargeability Rules
In order to cross-charge to my parent’s country of birth, I had to demonstrate that I fell within the exception to the rules on chargeability contained in s 202(b)(4) of the Immigration and Naturalization Act 1965:
an alien born within any foreign state in which neither of his parents were born and in which neither of his parents had a residence at the time of such alien’s birth may be charged to the state of either parent. [emphasis added]
To fall within this exception, I therefore had to prove two elements:
1. That neither of my parents were born in the UK; and
2. That neither of my parents had a residence in the UK at the time of my birth.
2. That neither of my parents had a residence in the UK at the time of my birth.
Point 1 was straightforward to prove. My parents’ passports show their birthplaces as being Australia. Point 2 was more complex and my whole case hinged upon my being to prove this residence requirement.
3. What does it mean to ‘have a residence’?
3.1. Diversity Visa Rules
Page 7 of the Instructions For The 2014 Diversity Immigrant Visa Program (DV-2014) states as follows:
In general, people are not considered residents of a country in which they were not born or legally naturalized, if they are only visiting the country, studying in the country temporarily, or stationed temporarily in the country for business or professional reasons on behalf of a company or government from a country other than the country in which the applicant was born.
3.2. Foreign Affairs Field Manual
The Department of State Field Manual provides guidance to decision-makers on the law and its interpretation. It is available here: http://www.state.gov/m/a/dir/regs/fam/. Part 9 FAM 42.12 explains the rules of chargeability. Part (e) of 22 CFR 42.12 Rules of Chargeability explains that:
An alien who was born in a foreign state, as defined in section 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. [emphasis added]
I apologise if the reference to the Foreign Affairs Manual is incorrect. I am not quite sure how to cite it correctly.
4. Proof and Supporting Documents
On the basis of the Diversity Visa Rules and Foreign Affairs Manual, I therefore had to prove one of the following:
• that my parents were only visiting the UK temporarily at the time of my birth (Diversity Visa Rules and Foreign Affairs Manual); or
• that my parents were studying in the UK temporarily (Diversity Visa Rules).
• that my parents were studying in the UK temporarily (Diversity Visa Rules).
It is apt at this point to say something about the standard of proof which I had to meet. According to part 11.1(c) of the USCIS Adjudicator’s Field Manual (available at http://www.uscis.gov/iframe/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-15.html), the standard of proof which applicants must meet is the ‘preponderance of the evidence’. This is the equivalent under UK/Australian law to the ‘balance of probabilities’. That is, the applicant must prove on the preponderance of the evidence/balance of probabilities that what s/he is trying to prove is true. It does not mean that the applicant must prove his/her claims to be absolutely true.
This standard of proof was helpfully explained in In the Matter of EM: In Adjustment of Status Proceedings (Interim Decision #3113) (available at http://www.justice.gov/eoir/vll/intdec/vol20/3113.pdf):
First, preponderance of the evidence is not evidence that must establish beyond a doubt that the applicant is eligible... In other words, the director can still have doubts but, nevertheless, the applicant can establish eligibility. Second, preponderance of the evidence is not the clear, unequivocal, and convincing evidence applicable in deportation proceedings… An alien does not have to prove by clear, unequivocal, and convincing evidence that he has established eligibility... Preponderance of the evidence requires a lesser showing than these two standards.
Note that I was unable to find a more authoritative case than the above on this standard of proof, although I’m sure there is one.
The important thing to take away here is that if you are trying to prove something, you don’t have to prove 100% that it’s true, only that it’s more likely than not true. This lowers the standard of proof. Indeed, the USCIS Adjudicator’s Field Manual states (in part 11.1(c)) that:
even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof.
5. My Supporting Documents
To support my contention that my parents were not resident in the UK, I submitted the following evidence:
• Notarised statutory declaration (Australian equivalent of an affidavit) by my father confirming that he had been in the UK temporarily, for the purposes of study and travel, at the time of my birth, with the following attached exhibits:
o Notarised copy of his passport (showing place of birth);
o Notarised copy of his driving licence (showing current address);
o Letter from the university confirming my father’s enrolment on the degree program from 1976-1978;
o Letter from the Road Traffic Authority of New South Wales, showing that my father had a registered NSW address at the time of my birth and throughout his time in the UK.
o Notarised copy of his driving licence (showing current address);
o Letter from the university confirming my father’s enrolment on the degree program from 1976-1978;
o Letter from the Road Traffic Authority of New South Wales, showing that my father had a registered NSW address at the time of my birth and throughout his time in the UK.
• Notarised statutory declaration by my mother confirming the same as above and attaching equivalent exhibits, but without the letter from the university.
Note that I had no proof of when they left the UK and no primary evidence of what they were doing in the period between my father’s graduation in 1978 and my birth in 1979. To me, this evidence seemed a bit flimsy, but in light of what I had discovered about the standard of proof, I decided that it might just be enough to prove my case ‘on the preponderance of the evidence.’
6. The Interview
Let me preface this by saying that this was one of the most stressful experiences I have ever had. Had I been less prepared, it would have been worse. If you’re going to go through this process, be prepared!
The consular official (let’s call her CO1) went through my documents one by one and on seeing my UK birth certificate, said that she needed to check whether I was eligible for the lottery. She sent me to sit down. She called me again and told me I was ineligible since I was born in the UK. I explained to CO1 my situation, as detailed above, and that I thought I fitted into one of the exceptions to the rules regarding chargeability. CO1 was not convinced. I gave her the statutory declarations (detailed above) and she was still not convinced. She gave me the option to withdraw my application at this point in time, or to pay the USD330 processing fee to proceed with my interview. I asked her honest opinion of the evidence I had provided and she told me that it did not look promising. She mentioned that the exceptions to the rules on chargeability normally only apply to people posted by foreign companies or governments to non-chargeable countries. At this point, I referred her to page 7 of the Diversity Visa Instructions 2014 (detailed above) which say that a person will not usually be considered a resident if they are in the country studying temporarily. She said that she was unaware of this but in any case, a period of three years would usually be deemed to amount to residency. At this point, I told her that I was willing to pay the fee and proceed, if for no other reason than to have the conversation. To me, USD330 seemed a modest amount to pay for something which could potentially change my life. I paid the fee and was sent to sit down again.
After half an hour of waiting, I was called to see a second consular official (CO2). CO1 had been very friendly and very helpful, while doubting that I was eligible for the visa. CO2 showed no emotion and was very stern. She looked through my documents and seemed satisfied until she reached the statutory declarations. She asked what they were and I explained the situation. She then proceeded to ask a series of very detailed questions regarding my parents’ and my backgrounds, including:
• precisely when my parents left the UK;
• had my parents ever been UK citizens (if not, why not);
• why I was educated in the UK (I returned to the UK in 1986 and was educated there to tertiary level);
• what my father did in the UK in the 80s;
• why my parents stayed in the UK from 1986-1998 (when they returned to Australia);
• what my father was doing for work from 1986-1998;
• what sort of visa my parents held in the 70s; and
• what sort of visa my parents held in the 80s.
• had my parents ever been UK citizens (if not, why not);
• why I was educated in the UK (I returned to the UK in 1986 and was educated there to tertiary level);
• what my father did in the UK in the 80s;
• why my parents stayed in the UK from 1986-1998 (when they returned to Australia);
• what my father was doing for work from 1986-1998;
• what sort of visa my parents held in the 70s; and
• what sort of visa my parents held in the 80s.
Some of these I was unable to answer, particularly the questions regarding my parents’ visa status. All I was able to confirm was that they had never had UK citizenship and to my knowledge, my father was sponsored by a company to go there in the 80s. I wasn’t sure why this was relevant as it had nothing to do with their status at the time of my birth, but of course, I wasn’t going to argue.
Interestingly, CO2 accepted my explanation that my parents had left the UK shortly after my birth with no primary evidence to support this. It was supported by their statutory declarations, but I let CO2 know that I had tried to get a record from the UK Border Agency but that they only keep incoming, not outgoing records. She said she wasn’t surprised and that in any case, they would be unlikely to have records stretching back to the 70s. I sensed a chink in her armour at this stage and felt that she was beginning to accept my story.
After this intense period of questioning, CO2 started to ask me the standard questions about my intentions in the US and what I would do for work. This was when I relaxed slightly because it seemed to me that she wouldn’t ask these if she had determined me to be ineligible. Indeed, after only a couple of brief questions along this line, she told me that she was satisfied that I fell within the exception the chargeability rules and that I was eligible to cross-charge to my parents’ country of origin. With that, she closed my file and told me to expect my passport back in a week. It was an enormous relief and I almost collapsed when I left the Consulate.
7. And finally...
I apologise again for the length of this post, but I thought it was important to be thorough. I guess the important thing to note if you’re in a similar situation is that you should be very well prepared, know your own background extremely well and get ready for some intense questioning. I’m sure it helps also to know the law and policy in this area, which is why I included it in some detail above.
I hope this was helpful to someone! USA here I come!
. Enjoy your new new in the US!
