The Importance, for Green Card “DV Lottery” Winners of Filing for AOS in the U.S. Rather Than Risk Denial At A U.S. Consulate Overseas

Green Card (“GC”) “Lottery” season is upon us again: registration for DV-2014 as it is known this year began yesterday, October 2, 2012. Last Friday was one of the most gratifying days of my 19 years of immigration law practice. One of our clients, a professional nurse by training and education and a national of a European Union country, was among those “selected” for “further processing” on last year’s DV-2013: in other words, he “won” the GC lottery. Based on the “winner” letter he received, the client went and applied for DV-based immigrant visas at the U.S. consulate overseas, in a EU country neighboring theirs. Much to their amazement, their application was rejected by the consulate, which deemed his professional nurse’s diploma, did “not meet” the minimum education requirement of at least a foreign high school diploma or higher.. Sounds absurd? Well, it was. It was an “arbitrary” decision on the part of consular authorities, and as is often the case in consular decisions, without any justification in either law or fact.
Someone in the U.S. then referred the client to me and I filed pretty much what amounted to a “Motion to Reopen/Reconsider” with the consulate in question, and asked it to reconsider its (erroneous) decision. I supplied a foreign education equivalency report issued by a (very) reputable source in the U.S. and argued that my client not only meets the minimum educational requirements, but actually exceeds them. In the educational equivalency report, issued by a U.S. university professor, his European professional nurse’s degree was deemed to be the equivalent of a 2 years degree issued by a university in the U.S. = an Associate’s Degree! None of this seemed to matter to the consular officials and even the consul general, who simply “reaffirmed” the denial of her subordinates and refused to even consider my Motion on its merits.
I did not insist much after that, since I know that a consul’s refusal of a visa is not appealable, not even by the President himself. The only recourse was to file a lawsuit in Federal Court in the U.S. (unlikely client could meet the costs.) A few months later, while client was visiting California, I suggested we re-file their entire DV AOS applications in the U.S., this time with USCIS. We did, and disclosed to USCIS the previous DV applications at the consulate and entered “erroneous denial” as the reason for the previous denials. Of course, client & family had to pay AOS application fees and the special DV visa assessments all over again. Then came the day of the AOS interview at the local USCIS office: the USCIS adjudicating officer agreed with me that the client exceeded DV’s education requirements, but somehow seemed concerned with the previous consular denials. I argued, among other things, that while the documents on hand clearly prove the consulate was wrong, this case was now in USCIS’ jurisdiction and that the agency had to reach its own decision, independently of any past (erroneous) decision by the consulate overseas. I was told that a supervisor would “review and most likely approve” the case.
Almost a week later, USCIS called my office while I was on an overseas trip, and informed that the issuance of the immigrant visas was in effect being “blocked” by DOS, due to the overseas consulate’s previous denial. I again retorted that it was an “erroneous” denial, a mistake of law and fact and that the denial of my clients’ DV visas would be a severe “miscarriage of justice”. To no avail, it seemed. USCIS’ position was that since it was DOS who ultimately issued the visas, UCSIS had in effect its “hands tied.” I did want to accept that excuse, nor concede defeat. For I knew that unlike when they first applied at the consulate overseas, by the clients now having filed for AOS in the U.S. with UCSIC, they had some basic but important rights that attached to them under the U.S. constitution: right to due process and equal protection under the laws. Both of which visa applicants abroad (non-immigrant or immigrant) do not have, for when you are outside the U.S. and applying for a visa, one is in effect, “seeking admission”, which could be granted or denied, totally up to the discretion of the U.S. consular officials abroad. I once again stressed that what took place abroad has no bearing now, since the case now rests in USCIS’ jurisdiction, that USCIS must act on it and inform DOS that client is statutorily eligible for the benefits sought, and demand that DOS issue the immigrant visa numbers forthwith. I got not response nor any action.
I also tried to plead with DOS: I contacted the highest DOS authorities in our nation’s capital, made them aware of the urgency of the matter & asked them to intervene and filed urgent requests with LegalNet, etc. Once I returned to the U.S., I only had four (4) days to resolve this matter, prior to the end of the fiscal year, which would have precluded, by law, the issuance of any DV visas. I soon understood DOS would do nothing to contradict the consul’s denial decision: it forwarded an inquiry to the consulate, and I understood it would let the consulate have the last word on this. “Foreign Diploma Evaluation Reports are non-binding on the consulate” was the last word I received. (That is true. Those evaluation report findings ARE, however, binding on USCIS in that it cannot contest them.) On Wednesday, September 26, I decided to file a Mandamus Action lawsuit in Federal District Court against USCIS, in an attempt to preserve my clients’ rights beyond the end of the fiscal year and alerted the U.S. attorney’s office of my intention and asked it to intercede with USCIS in order to avoid needless litigation and defense resources to the U.S. attorney’s office.
The complaint was directed against Secretary of State Hillary Rodham Clinton and the Consul overseas, among others. The U.S. attorney’s office contacted USCIS. On Friday, September 28, just as I was about to register the complaint in Federal court, USCIS notified me it was in the midst of final negotiations with DOS to have them issue the visa numbers. Within less than 2 hours I received a phone call from USCIS informing me they hit the “send” button to have the green cards “produced.” A happy ending to what would have otherwise been a (very) tragic and sad ending for my clients.
This case conclusion highlights the importance for DV winners of filing for AOS in the U.S., as opposed to applying for an immigrant visa with a U.S. consulate overseas. For, as described above, an applicant who has lawfully been admitted to the U.S. possesses due process rights that are simply not available when applying overseas, and thus can hold the USCIS to its burden of adjudicating cases in a timely and lawfully correct manner. This was a very compelling and hard fought case, where I insisted until the very end that USCIS meet its burden to fulfill its “ministerial” duty of adjudicating the case in a timely and just manner, something I can almost never seem ask any embassy or consulate overseas of doing. If you need any guidance or assistance concerning the DV green card lottery program (and/or its aftermath), then please contact us anytime.
Last word: on Monday, October 1, 2012 I received an emailed letter from the consulate overseas reaffirming its previous denial decision, stating, among others:
“…each year we are saddened to refuse visas to many hard working, honest applicants, but who do not meet DV’s statutory requirements.”


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