Mr. M was convicted in his home country of Belarus under an archaic provision of the criminal code for “exceeding” his authority in his capacity as a director in his company. The consular officer found that the conviction was for a crime of moral turpitude and permanently barred Mr. M. from the United States under Section 212(a)(2)(A)(i)(I). Mr. M. retained our firm, and we conducted an in-depth analysis of crimes which fall under the purview of the statute in question. We presented our findings and arguments to the lawyers in the State Department, who found that the crime did not constitute a crime of moral turpitude and cancelled the inadmissibility bar.
While the Green Card Lottery has enabled hundreds of thousands of individuals from all over the world to pursue their American dreams in the United States, it has led to heartbreak, frustration, cancelled visas, permanent bars, and lighter pockets for countless others. Every year, less than 1% of the entrants to the Lottery are selected to apply for a Diversity Visa, with only up to 50,000 out of the 80,000–100,000 selected winners actually receiving green cards. Why are thousands of individuals refused Diversity Visas every year? And more importantly, what can be done to challenge such denials?
Reasons for Lottery Denials
Broadly speaking, the Lottery denials can be grouped into 5 categories: 1) 221(g); 2) lack of qualifications; 3) inadmissibility criteria; 4) Lottery-specific inadmissibility; and 5) failure to comply with the Lottery instructions:
- 221(g) denials/administrative processing — As discussed elsewhere on this website, 221(g) can be invoked by a consular officer when either the applicant failed to bring a necessary document (e.g., a police certificate from another country); the consul wishes to initiate a check of the authenticity of the applicant’s documents (e.g., diploma) or bona fides of a relationship (e.g., marriage or parental); or there is a security/criminal/technology/or other check initiated by a US government agency. The problem with these checks is that they must be completed by and the visa issued by September 30. Otherwise, the “winning Lottery ticket” is invalidated. Annual 221(g) “victim-rejectees” due to the September 30 deadline include those living in high-fraud countries with protracted document verification processes initiated by consuls; those applicants interviewed in August or September; and Muslim males from the Middle East subject to heightened security checks.
- 212(a)(5)(A) Lack of Qualifications — The Lottery requirements for qualification are not demanding: one can qualify with either the equivalent of a US high education or within the last 5 years having 2 years of work experience in an occupation that requires at least 2 years of training or experience. But a consul can challenge an applicant’s education and work experience in a variety of ways. For example, a consul may question the applicant’s education by concluding that a) while the high school certificate is authentic, it does not equal the completion of an American high school; b) the high school graduation certificate is not authentic (i.e., it is counterfeit/fake); or c) the applicant had not actually attended or completed the required courses. For example, one consul suspected that the applicant had not attended the school and decided to administer a Russian-language (his 3rd language) test to the applicant, leading to a denial. In the Age of Trump, the Department of State has recently empowered consuls to administer such “tests” to Lottery winners; while ostensibly a tool to fight fraud, this tool is obviously subject to abuse. When a consul does refuse on these grounds, the refusals can be either Section 212(a)(5)(A) for failing to establish qualifications or a permanent bar under Section 212(a)(6)(C)(i) for presentation of bogus credentials.
- Inadmissibility Criteria, including 212(a)(4)(A) Public Charge — The same inadmissibility criteria that apply to other immigrants also apply to Lottery winners: medical, criminal, security, unlawful presence, etc… With the implementation of the new public charge rules in 2018–2020, Lottery winners are particularly vulnerable to being refused on these grounds. Among Lottery winners, the following individuals may find themselves more likely to be denied as public charges under Section 212(a)(4)(A): a) older winners (>50); b) those with limited assets (e.g., real estate); c) those who do not know English; d) those with few marketable skills or limited work experience; e) those without relatives or a sponsor in the US; and f) those without a job offer in the United States.
- Lottery-Specific Permanent Inadmissibilities, including 212(a)(6)(C)(i) and 212(a)(6)(E) Sham Marriages — Being selected in the Lottery prompts the winner to ensure that his or her loved one will also be eligible to immigrate. So if at the time of selection the winner is not married, he or she must get married before the visa interview to ensure that his spouse will be able to immigrate as well. This is also fertile ground for fraud, with single winners entering into bogus marriages for money and the possibility of immigrating. This category of marriages, called “pop-up marriages” because they arise after the selection in the Lottery, is subject to intense consular scrutiny — and sometimes wrong conclusions. It is not uncommon for the consul to conduct separate interviews with the husband and wife (“what is his favorite toothpaste?” “what side of the bed does she sleep on?” “show me the key to your apartment”) or for the Embassy to send consular investigators to interview neighbors. If the consul decides that the marriage is a sham, the Lottery winner is permanently barred as an “alien smuggler” (Section 212(a)(6)(E)) and the spouse is permanently barred for a material misrepresentation (Section 212(a)(6)(C)(i)).
- 212(a)(5)(A) Alleged Failure to Comply with Lottery Instructions — In addition to 221(g), this is the area where the overwhelming majority of Lottery winners are rejected. The reasons we have encountered over more than 25 years are manifold. The top 3 include: a) “defective” photograph — not “recent”; colored instead of a light background; photo was “photoshopped”; an ear is not visible; the photo does not look like the applicant; the lighting is non-compliant (e.g., there was a shadow cast); b) failure to list family members — omitting a spouse with whom no longer live; omitting children who are not immigrating; c) “wrong” English-language spelling of name in the entry — indicating the spelling in the local language. Interpretation of these instructions is ripe for consular overzealousness: How can a consul determine whether the entry photo was “recent” when the photo submitted was more than 12 months before the visa interview? What Is a “light” background? How can a consul decide that you are married when you are not? How can a consul determine whether you have 1 or 2 children? How can a consul determine you were unable to obtain a photograph of your son now living with your ex-wife in another country? Over 25 years we have encountered dozens of issue offshoots and refusals arising from mere consular suspicions that the Lottery instructions were violated. “You can play next year” is the common phrase of solace for these Lottery refusals.
What Can Be Done to Challenge Lottery Denials? What Other Options are There?
Although US law prohibits “arbitrary and capricious” decisionmaking, “abuses of discretion”, and decisions made “not in accordance with law”, as can be seen above, that has not stopped the endless consular mutations of the reasons for Lottery visa denials. We are the only firm to undertake two class action lawsuits against the Department of State for its faulty administration of the program and written about some of the consular abuses in denying Lottery applications.
All denials of Diversity Visa applications are “appealable”: the denied applicant has the absolute right to request reconsideration, presenting new evidence and documentation or questioning the accuracy of a consular decision. Over the years, we have successfully requested reconsideration of scores of Lottery denials, including wrongful accusations of sham marriage; allegations of fake diplomas; conclusions that an applicant lacked the required work experience; refusals on public charge grounds; education equivalency rejections; photograph deficiencies; spelling problems; disqualifications for failure to provide information in an entry or a photograph; consular questioning of the existence of a marriage or death; and erroneous findings of a crime of moral turpitude. Some of our submissions, such as in the case of a baseless sham marriage accusation, have included more than 50 documents.
To address consular suspicions, additional evidence can be presented. For example, to address a diploma authenticity challenge, a letter from the country’s Ministry of Education or an apostilled-diploma can be presented. Proof of class attendance in the form of a yearbook, a school gradebook, or actual classwork from the time of enrollment may be submitted. In cases where work experience is questioned, payroll documents, pension fund records, and work product may be submitted. Some issues, such as the usage of an old photograph, may not be resolvable. In others, it may become necessary to deal with local statutory act registrations, family law, DNA tests, hospital records, custody agreements, payment of alimony, court decisions, consents to immigrate, etc…
It is important to remember that even in cases where there has been unintentional noncompliance with the rules, the consul has discretion to issue a Diversity Visa. For example, if a newborn’s birth coincided with submission of the DV entry, and the baby was not included in an entry because he/she did not have a name yet or there was no photo available at the time of submission of the entry, it would be appropriate to use such positive discretion. The consul is also supposed to be conscious of the September 30 deadline and try to expedite 221(g) cases before closure of the program.
Finally, where a challenge to a refusal decision is not viable, other options may be available. For the refused spouse of a Lottery winner (e.g., he has a past criminal record), there are two options: 1) a waiver application can be filed after the Lottery winner’s entrance to the US as an immigrant (of course, the waiver must be decided and approved by September 30), or 2) an I-130 immediate relative petition may be filed with a subsequent waiver application. For a child who does not receive a Diversity Visa by September 30 and is separated from his parents who successfully adjusted status in the US after winning the Lottery, humanitarian parole may be an option.
As can be seen, the stakes are very high. Attending a Diversity Visa interview alone can lead to thousands of dollars in expenses for a family: nonrefundable visa fees; travel expenses; medical exams; translator costs. At the least a Lottery visa refusal leads to a cancelled nonimmigrant visa and difficulties in receiving a visa to visit or study in the US again. At its most serious, a Lottery visa denial can lead to a permanent bar from the United States. For many, winning the Lottery presents the only realistic ticket to immigrate: without a close relative or job offer in the US or special talents or wealth, the avenues for immigration to the United States are nearly closed. The September 30 time constraints add another pressure to resolve any problems quickly and efficiently. Please contact us to find out how we can assist you.