Bait-and-Switch, Department-of-State-Style

The below article was recently published on the Immigrant Lawyer’s Weekly website – http://discuss.ilw.com/content.php?2398-Article-Bait-and-Switch-Department-of-State-Style-by-Kenneth-White

Yesterday, we wrote about how USCIS holds out the lure of green cards to foreign entrepreneurs, only to pull back the bait once the businessman has committed untold hours and funds to the development of a business in the United States. The Department of State is no slacker in the bait-and-switch game. It has used the Diversity Green Card Lottery as a means to reap a windfall by holding out the lure of green cards to those selected in the Lottery, only to turn away thousands of applicants after they have paid substantial application fees. The US Embassy in Tashkent is an excellent case study.

After the DV Lottery drawing, the selected “winners” submit application forms to the Department of State’s Kentucky Consular Center (“KCC”). The KCC then invites selectees for immigrant visa interviews. At the interview each family member pays $330 in non-refundable fees. For a variety of reasons, the Embassy in Tashkent temporarily refuses 30-40% of all Uzbek DV applicants under Section 221(g) of the Immigration and Nationality Act. But rather than continuing to process many of these applications, it pushes these individuals to the back of an artificially-created queue, so that it can accept new visa fees from new applicants. This results in the Embassy receiving tens of thousands of dollars in visa fees from individuals who do not receive visas and re-allocating visas to other applicants who also pay visa fees. In short, the Embassy has consciously decided to “double dip”.

Part of the problem can be attributed to the rules of the Lottery. Only 50,000 Diversity visas may be issued in a fiscal year and no more than 7% of the visa recipients may be issued to nationals of a single country. However, the Department of State preliminary selects many more than 3,500 Uzbeks entrants and family members. In addition to the quota, there is a time limit, with applicants required to receive visas by September 30 of each year or the selection is nullified. As a result, there is a shortage of visas for Uzbek winners and time limitations.

Because demand greatly exceeds supply, the Embassy in Tashkent ends up earning money on and shattering the dreams of jilted Uzbek applicants. For example, rather than issue a visa to a qualified applicant, the Embassy will temporarily deny the visa, stating it needs to do a check on the applicant’s academic credentials. But rather than do the check in a timely fashion, it will set aside his application and re-allocate his visa to another individual. This contravenes the Department of State’s own regulations requiring a consular officer to finalize the processing of Lottery visas as fast as possible because of the time constraints. [1]

The Embassy’s inefficiency exacerbates the problem. Many posts have in place a dropbox system or courier service in which an applicant can submit a missing document to the consular officer. But Tashkent does not. Rather, it will only allow a person to submit additional documentation, including passports for visa issuance, in person. To do so, the Embassy must schedule an appointment. It does so on a limited basis, further squeezing the bottleneck of time and visas. So if an applicant was able to obtain a missing police certificate a day after his interview, he will be at the mercy of a scheduling officer allowing him to bring in that police certificate to enable processing to be finalized.

“I feel like I’m stuck in a lottery within a lottery,” one applicant who had paid more than $1500 in application fees told me who has been waiting for more than two months for the Embassy to verify the authenticity of his diploma. “Waiting. Wondering whether the US Government will select me again to bring in my passports, whether it is more interested in my money or issuing to me and my family a visa that I qualify for. It all seems like a game. We feel so close to immigrating, but at the same time, so far away.”

The theme of a “lottery within a lottery” is a persistent one when discussing the Embassy in Tashkent. For example, it has issued visas to dozens of applicants with trivial spelling errors or birthdate mistakes in their DV entries, but denied visas to others with similar errors or mistakes. Some speculate that the Embassy denied these applicants to punish them because they used the services of Lottery consultants and to serve as a deterrent to others thinking of using such services. After refusing to discuss the rationale with the author (“Post will not discuss the cases of applicants who have already been issued and whom you do not represent”), the Embassy provided this “explanation”: “The rules for applying for the Diversity Visa, while simple, are strict. In each case, the Consular officer determines the qualifications of the applicant by making an informed decision based upon the information contained in the electronic entry, the applicant’s DS-230 application, and information gained during the interview. An applicant who fails to follow the instructions may be disqualified.”

After months of correspondence and the intervention of the Visa Office, the Embassy has now reconsidered this position, agreeing to re-open such denials. But as one can guess, it has positioned those individuals to the back of the line it created, thus appearing to be “reasonable” and holding out the bait of the green card, knowing full well that the final switch will come on October 1 when there will be no immigrant visas available for these applicants.

And the beat goes on…

 

1See 9 FAM 42.33 N9.2, N10.2, PN6

Postscript – Certain individuals who were denied because of entry inaccuracies were eventually issued visas, on the final days of DV-2013.  However, many of those whose academic credentials were supposed to be verified had the clock run out on them.

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