U Processing Diversity Visa Cases:. After KCC receives the complete DS, KCC will contact applicants and instruct them to e-mail scanned copies of required supporting documents to kccdvdocuments state. KCC will contact applicants to notify them of any missing or illegible documents. Once all documents are received, KCC will prescreen and flag for consular officers any apparent inconsistencies or potential fraud indicators.
Only after all scanned documents are received and reviewed is the case "documentarily qualified" for purposes of visa appointment scheduling. KCC will notify scheduled applicants by e-mail that they should log into the Entrant Status Check website to obtain their appointment letters and further instructions. When scheduled applicants log into the ESC, they will be referred to the pre-interview instructions on the Diversity Visa Process website. On that website, applicants will be able to review post-specific instructions, and any additional required forms.
However, those entrants who are selected and apply for DVs will be required to pay a DV Lottery Fee at the time of the formal interview.
U Diversity Visa Ineligibility Grounds:. There are no special provisions for a waiver of any ground of visa ineligibility other than those ordinarily provided in the INA. If an individual files more than one petition during the fiscal year, all such petitions shall be voided. Therefore, if a DV entrant submitted more than one petition during a single fiscal year, they would not be eligible for a visa under section i.
Therefore, if a DV entrant cannot show they are eligible for a DV before the end of the fiscal year, they would not be eligible for a visa under section ii. A U This section provides that a petition shall be in such form as the Secretary of State may by regulation prescribe and shall contain such information and be supported by such documentary evidence as the Secretary of State may require.
Therefore, failure to comply with regulations promulgated pursuant to this INA provision will render an applicant ineligible for visa under section iii.
B U Examples of failing to comply with regulations may include: failing to provide valid passport information on the DV entry, as described above at 9 FAM Very important: Because of the limited number of visas that may be issued under this program, visas may cease to be available even before this date.
This is especially true the closer to September 30 an application or re-application is made. However, if an applicant provides additional supporting documentation to try to overcome a prior INA g refusal, then a refusal pursuant to INA a 1 I ii II would be appropriate as DV immigrants cannot be issued a DV after the fiscal year for which the entry was submitted. Not all misstatements on a DS satisfy the materiality requirement of 6C1, but the fact that the applicant did not personally sign and submit the DS does not serve to insulate the applicant from ineligibility under 6C1, if you find that the applicant was aware of the action being taken by the third party in furtherance of the application.
The information contained in the following paragraph s marked with "X" pertain s to your Diversity Visa application. Please disregard the unmarked paragraphs:. U Following-to-Join Applicants: DV applicants are informed in the electronic notification of how to adjust status to lawful permanent residence in the United States.
Post must notify the KCC of the adjustment of the principal applicant so that the electronic case can be modified and transmitted to post to allow visa issuance to the derivative family members. Spouses and children who derive status from a DV application can only obtain visas in the DV category during the same Fiscal Year in which the principal applicant was admitted or adjusted status.
Derivative applicants cannot follow-to-join after the end of the Fiscal Year in which the principal applicant was admitted or adjusted status. U Transfer of DV Cases:. KCC's DV processing system cannot receive electronic case returns or transfers. If you need KCC assistance with a case transfer, contact kccpostliaison state.
U Qualifying DV Countries 1 U Formula for Identifying Qualifying DV Countries: a U The Secretary of Homeland Security is required to determine total admissions of preference and immediate relative IR immigrants over the most recent five-year period for which statistics are available, worldwide total, by region, and by individual foreign state.
For others, it pushes them to get a case together in a relatively short period, which can be a blessing or a curse depending on the type of person you and your attorney are. Sometimes the weight of this importance is too much for a person to handle, and they do a poor job answering the questions or remaining calm and clear-headed. In Immigration Court, a person will have a second chance to explain their case before an Immigration Judge and will have more time to gather evidence if need be and country conditions experts or reports on the subject matter of their claim.
For the asylee applicant, though, this can be a devastating decision: especially if it was due to nervousness or last-minute cancellation of an expert witness to attend the interview.
In the US Affirmative Asylum case procedure, an applicant has 30 days to produce a motion to reopen or reconsider after receiving a decision to refer the case to Immigration Court or a full denial. They are as follows:. Persons in deportation proceedings who are granted suspension of deportation under the former section a 3 of the Act as in effect before September 30, as battered spouses or children.
Any case in which a suspension of deportation or cancellation of removal application has been filed by a Nicaraguan or a Cuban national who is eligible for relief under section of the NACARA should be administratively closed as described in part I, C of this memorandum.
It should be noted that 8 C. Since the conditional grant rule was adopted only in order to deal with cases subject to the annual cap, it should not be interpreted to preclude the granting of suspension of deportation or cancellation of removal in cases for which the cap has been made inapplicable.
Immigration Judges, therefore, may grant suspension or deportation or cancellation of removal to any alien whom the Judge has determined is described in part II, D of this memorandum and, therefore, is exempt from the annual cap.
Because the statute requires that those numbers be offset by certain immigrant visa numbers, it will be critical to track and report any applications which are granted without condition. Instructions will be forthcoming in the near future. All other cases which meet the statutory requirements and warrant a favorable exercise of discretion should continue to be granted on a conditional basis pursuant to the regulation.
Immigration Judges may begin to issue decisions on those suspension of deportation and cancellation of removal cases in which a decision was reserved in fiscal year as outlined in my memorandum entitled Procedures for Issuing Conditional Grant Orders for Suspension and Cancellation Cases Reserved in Fiscal Year Those cases which are not subject to the cap may be issued as an outright grant as outlined in the preceding section.
Any other cases must be granted on a conditional basis. Reno preliminary injunction issued by the United States District Court for the Southern District of Florida is vacated, Immigration Judges in the Courts affected by the Tefel injunction should maintain the status quo. It is, therefore, ordered that these proceedings be Administratively Closed.
We applaud the Attorney General for exercising her authority to create appropriate rules and procedures in determining eligibility for suspension of deportation and special rule cancellation of removal and electing to establish a rebuttable presumption of hardship for the ABC class.
The circumstances for challenging the presumption are well described and would offer adjudicators concrete direction in interviews and similarly benefit judges in hearings.
Without this important guidance in the regulation itself, it will be too easy for adjudicators and judges alike to seek to overcome the presumption inconsistently, thereby undermining the very purpose of the presumption. Section In enacting NACARA, Congress allowed non-citizens with final deportation orders to reopen their cases to apply for suspension of deportation despite any pre-existing legal barriers, with one exception for aggravated felons :.
Notwithstanding any limitation imposed by law on motions to reopen removal or deportation proceedings except limitations premised on an alien's conviction of an aggravated felony… any alien who has become eligible for cancellation of removal or suspension of deportation as a result of the amendments made by Section of the Nicaraguan Adjustment and Central American Relief Act may file one motion to reopen removal or deportation proceedings to apply for cancellation of removal or suspension of deportation.
This is because there is no provision of law that bars aggravated felons from filing a motion to reopen. Otherwise, the express exception for "limitations premised on" aggravated felony convictions is inexplicable. Thus, it was the intent of Congress to waive all other limitations, including substantive bars relating to eligibility for the underlying relief, for NACARA-eligible individuals seeking to reopen their proceedings.
By specifically barring aggravated felons, but no other categories, Congress indicated its intent to permit all others to apply for suspension or cancellation if otherwise eligible, notwithstanding bars to eligibility for other than those defined by NACARA. The language covers all bars.
Congress did not intend for any of the limitations on motions to reopen to apply. Part of this intent is evident in the fact that Congress made special provision for those who are NACARA eligible to reopen their cases despite having final orders of deportation or removal. Many Salvadorans and Guatemalans have past deportation orders from the middle 's.
Many of those individuals left the United States under a deportation order after their asylum applications were denied based on procedures which were the subject of the litigation that resulted in the ABC settlement.
Many of these individuals found that the situations in Guatemala and El Salvador posed dangers to their safety and they were subsequently were forced to re-enter the United States illegally. Therefore, we recommend that the Attorney General establish either in the final rule or in a policy memorandum that INA a 5 will not be applied retroactively.
Section a 5 of the INA allows the INS to remove an individual without a hearing before an Immigration Judge, if the individual was previously removed or left voluntarily "under an order of removal," and then subsequently re-entered the United States illegally.
Nevertheless, the INS takes a different view. At a minimum, the INS should interpret this provision to only apply to past entries to the United States after April 1, In a recent memorandum dealing with those ordered removed that attempt to enter the United States unlawfully, the INS concluded that the language applied only to entries after April 1, The interpretation suggested above is consistent with all principles of statutory construction, and with the presumption against retroactively applying new rules to past proceedings.
There are long delays in fingerprint clearances in many parts of the country. In those extremely small numbers of cases in which the CIA search reveals facts that would have prevented the granting of the NACARA application, the Attorney General retains the authority to rescind the grant. At a minimum, the Attorney General should adjudicate the claims without a CIA clearance for families with children who are nearing 21 and who will "age out.
We commend the Attorney General for adopting a "reasonable excuse" to excuse failure to attend interviews. While the interim rule is a substantial improvement on the proposed rule, we suggest further changes. The Attorney General recognizes that an applicant must sometimes reschedule interviews and fingerprint appointments, and promises to accommodate all reasonable requests.
The Attorney General should adjudicate the failure to appear under the "reasonable excuse" standard. The Attorney General should instruct asylum officers that the "reasonable excuse" standard is a generous one. In cases where the asylum officer determines that the applicant did not have a reasonable excuse for failure to appear, the INS should refer the case to the immigration court, instead of dismissing it.
We suggest that the final regulation include language saying, "in almost all cases in which an applicant fails to appear for an interview of fingerprinting appointment, the Service will refer the application to an Immigration Court for a decision.
The preamble explains that the INS fingerprinting centers cannot process requests to reschedule interviews. The INS will provide an applicant scheduled for such a center with information about how to reschedule. As applicants may have to take time off work to attend fingerprint appointments, it should be possible to reschedule in the same manner as rescheduling the interview. The community is very much aware that rescheduling will only serve to delay adjudication, and NACARA applicants are interested in having their cases resolved.
Therefore, applicants will be seeking rescheduling only when it is truly necessary. The INS should allocate staff to accommodate written requests for rescheduling fingerprinting in the same manner as requests to reschedule interviews. Therefore, we recommend that in the final rule, 8 C. All other requests to reschedule the fingerprinting appointment, including those submitted after the interview date, will be granted if the applicant has a reasonable excuse for not appearing.
At a minimum, if the Attorney General chooses not to allow rescheduling of all fingerprint appointments, we urge the Attorney General to incorporate the language from the preamble regarding automatic rescheduling. The preamble states that for applicants scheduled at centers that do not have the ability to accommodate requests for rescheduling, the Attorney General will automatically reschedule the applicant.
This will result in significant administrative efficiency for the Asylum Office as it eliminates the necessity of scheduling a follow-up appointment. The final regulations should state explicitly that advance parole is available to NACARA cancellation or suspension applicants for any bona fide personal or business reason.
The Service already uses this standard for adjudicating most advance parole requests — those submitted by adjustment of status applicants. The adoption of this recommendation will significantly promote administrative efficiency for the Service. It would eliminate the need for Service personnel to engage in the time-consuming determination as to whether an individual applicant established that his or her request was sufficiently urgent to justify her or his travel.
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