Lottery Winners Timeframe to File Adjustment of Status

Individuals selected for the U.S. Department of State (DOS) diversity visa (DV) lottery program for fiscal year 2014 (FY14) are likely to have questions about how to move forward with permanent resident (“green card”) applications. The system is based on the DOS visa bulletin, but operates in a manner that is different from the more-familiar family- and employment-based visa bulletin cutoff date system, especially for cases filed as adjustment of status (AOS) applications.

Background: Lottery Selection

There are 55,000 DVs allowed annually, and they are only available to nationals from designated countries with low rates of immigration to the United States. Each year, applications filed by eligible candidates are selected via a random lottery system. The lottery application process for FY14 took place last calendar year, from October 2 to November 3, 2012. The results of the lottery selection were made available online in May 2013.

However, as explained in the MurthyDotCom NewsBrief, Diversity Lottery Results Available (21.May.2013), selection in the lottery does not grant permanent residence status. Rather, selection is merely the first step toward potentially obtaining a green card.

Adjustment-of-Status Option for Those Within U.S.

For those who are in the United States legally and are otherwise eligible, the next step after selection in the lottery process is often the filing of an application to adjust status (AOS), or I-485 form. Those who are outside of the U.S. generally have to use the consular processing (CP) option. There are legal and procedural requirements for the AOS and CP options, apart from lottery selection, which are beyond the scope of this article. Given the time limitations of the lottery program, it is important to seek appropriate legal advice regarding these options.

How Diversity Visa Applicants are “Ranked”

A DV “winner” is assigned a rank number when s/he is chosen in the diversity lottery. Similar to the way priority dates function for employment- and family-based cases, this rank number is used to determine when, during the particular DV year, the individual is potentially eligible to obtain a green card. These rank numbers are assigned based on six geographic regions (Africa, Asia, Europe, North America / Bahamas, Oceania, and South America / Caribbean). DV visas are available for applicants with a lottery rank number that is below the published monthly visa bulletin cutoff number for the particular geographic region.

Approvals Under the DV Lottery Subject to Strict Deadlines

A critical procedural aspect of the DV lottery system is that the green card applications filed during any given fiscal year cannot be approved any later than the last date (September 30th) of that fiscal year. If the application is not approved by September 30th, it generally cannot be approved at all – even if processing delays in the case were caused by government error. DV “winners” must be sure to act promptly, therefore, to ensure their applications are filed correctly. They must follow up, as needed, in order to secure permanent residence status. Accordingly, applicants may wish to have an attorney represent them to better ensure a smooth process.

DOS Strategy to Improve Efficiency in Processing DV Cases

Given the tight time constraints, the USCIS and DOS have made efforts to streamline certain aspects of the DV system. Unlike adjustment-of-status applications filed under other categories, DV applicants do not have to wait to file their applications to adjust status in the month that the rank number actually becomes current. As explained in an August 2013 USCIS memo, “…approximately 50 to 60 days in advance of actual DV visa availability, DOS…publishes in its monthly Visa Bulletin a separate ‘advance notification’ of DV rank cutoff numbers. Such advance notification enables persons to file their Form I-485 applications prior to the time a DV visa becomes ‘immediately available.’ The listing of advance notification of DV availability is meant to enable a person to file his or her adjustment application, even though a visa is not yet available.”

Example of Filing Timeframe

On or about the 9th of each month, the DOS releases the visa bulletin for the following month. So, the November Visa Bulletin should be released sometime around October 9th, and will contain the ranking information for November, as well as advance notification of the lottery rank numbers for December. DV “winners” in the United States who learn that their rank numbers will be available in December may file the I-485 applications immediately. That is, the adjustment-of-status application could be filed in October, as soon as the November Visa Bulletin is issued.

Conclusion

The DV lottery creates a great deal of excitement and confusion each year. The advance filing procedure and highly-regimented adjudication timeframes for DV lottery cases are important variations that set these cases apart from most other types of I-485 adjustment-of-status applications. Those fortunate enough to have been selected should not squander such an opportunity to live out their American dreams. Applicants should carefully review all instructions and, if necessary, obtain legal assistance to guide them through the process.

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