Chapter 4 - Adjudication
A. Determine Eligibility for Diversity Immigrant Visa
To adjust status, a selectee must be eligible to receive a Diversity Immigrant Visa (DV). Becoming a selectee does not guarantee eligibility for a DV. USCIS officers must still confirm that selectees applying to adjust status meet the statutory education or work requirements for a DV and that they are natives of or properly chargeable to eligible low-admission countries.[1] If an officer determines a selectee is not statutorily eligible for a DV, the officer denies the Application to Register Permanent Residence or Adjust Status (Form I-485).
B. Filing and Fiscal Year Deadline
DV Program selectees and their spouses and children are eligible to receive and use a DV number only through the end of the specific fiscal year for which they were selected.[2] Therefore, USCIS cannot approve DV adjustment applications after September 30 of the relevant fiscal year.[3]
Beginning October 1, USCIS must deny any DV adjustment application that remains pending from the prior fiscal year, even if the U.S. Department of State (DOS) has already allocated the visa number. This is true whether the applicant is the principal DV adjustment applicant or a spouse or child accompanying or following to join the DV principal.[4]
The statutorily limited number of DVs may also be exhausted before September 30, the last day of the fiscal year, as a whole or for specific regions or countries. Therefore, USCIS encourages adjustment applicants to file as soon as they are eligible to file based on the DOS Visa Bulletin.[5]
Example
A noncitizen living in the United States enters the DV Program’s online registration on October 2, 2018. The noncitizen checks DOS’s Electronic Diversity Visa Program webpage on May 1, 2019, and finds out they have been selected for a DV for fiscal year 2020. On August 1, 2020, the selectee properly files an adjustment application based on being a DV selectee with a current rank number according to the DOS Visa Bulletin. On August 15, 2020, the officer adjudicating the application determines some required evidence is missing and sends a Request for Evidence to the adjustment applicant. The adjustment applicant submits the requested evidence on October 1, 2020.
Even if the adjustment applicant meets all other eligibility criteria to adjust status, USCIS cannot approve the adjustment application because it is past the September 30 fiscal year deadline and there are no more DV numbers for DOS to allocate.[6]
Availability of Visa at Time of Final Adjudication
A visa must be immediately available at the time the DV Program selectee files the adjustment application with USCIS and at the time of final adjudication of the application.[7] Therefore, before approving a DV adjustment application, the officer should consult the DOS Visa Bulletin to determine if:
- The applicant filed the DV-based adjustment application at the appropriate time (based on the current visa availability chart at the time of filing or the advance notification chart); and
- A visa number is immediately available at the time of final adjudication and approval.
C. Interview
All adjustment of status applicants must be interviewed by a USCIS officer unless USCIS determines that the interview is unnecessary.[8] If an interview is necessary, USCIS schedules the applicant for an in-person interview at the appropriate field office with jurisdiction.
D. Decision
1. Approval
The officer must determine that the applicant meets all the eligibility requirements and merits the favorable exercise of discretion before approving the application to adjust status based on a DV.[9] If the adjustment application is otherwise approvable, the officer must determine if a visa is immediately available at the time of final adjudication and request a visa number from DOS. Once DOS allocates the visa number, the officer may approve the adjustment application.[10]
If an officer approves a DV adjustment application, the following admission codes apply.
| Applicant Type | Code of Admission |
|---|---|
| Principal DV | DV6 |
| Spouse of principal DV | DV7 |
| Child of principal DV | DV8 |
The effective date of lawful permanent residence for all DV adjustment applicants is the approval date of the application.
2. Denial
If the officer determines that the applicant is ineligible for adjustment, the officer must deny the adjustment application. The officer must provide the applicant a written reason for the denial.[11] While there is no appeal right for the denial, the applicant may file a motion to reopen or motion to reconsider using the Notice of Appeal or Motion (Form I-290B). The denial notice should include instructions for how to file Form I-290B.
If placed in removal proceedings, an applicant may also renew the adjustment application before an immigration judge if there are still available DV numbers and there is still time left in the fiscal year to allocate a DV number.
Neither USCIS nor a court has authority to grant adjustment of status based on a DV selection after the relevant fiscal year deadline, even if DOS has already allocated a visa number.[12] Therefore, USCIS denies any motion to reopen or motion to reconsider received or pending after September 30, the last day of the fiscal year. Even if a motion is granted before the end of the fiscal year, USCIS denies the DV adjustment application if USCIS does not adjudicate the adjustment application before the end of the fiscal year.[13]
Footnotes
[^ 1] See INA 203(c)(1)(E) and INA 203(c)(2). See 22 CFR 42.33(a)(1). For more information, see Chapter 2, Eligibility Requirements, Section B, Eligibility to Receive an Immigrant Visa, Subsection 1, DV Program Eligibility [7 USCIS-PM G.2(B)(1)]. For general information about cross-chargeability rules, see Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability, Subsection 7, Cross-Chargeability [7 USCIS-PM A.6(C)(7)].
[^ 2] See INA 204(a)(1)(I)(ii)(II). See 22 CFR 42.33(d).
[^ 3] In some cases, USCIS may issue a Request for Evidence to obtain additional information related to a final adjudication. USCIS may not approve DV adjustment applications after September 30 of the relevant fiscal year, so USCIS may not approve a DV adjustment application if all requested information is not received on or before that date even if the information submitted otherwise establishes an applicant’s eligibility.
[^ 4] Selectees and their derivatives, if any, who received a DV through consular processing before the September 30 deadline may continue to the United States after that date, provided the visa remains valid.
[^ 5] For more information on eligibility to file the adjustment application, see Chapter 2, Eligibility Requirements, Section C, Visa Availability [7 USCIS-PM G.2(C)]. For more information on jurisdiction, see Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section D, Jurisdiction [7 USCIS-PM A.3(D)].
[^ 6] See 22 CFR 42.33(f).
[^ 7] See Part A, Adjustment of Status Policies and Procedures, Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].
[^ 8] See 8 CFR 245.6. For more information on interviews, see Part A, Adjustment of Status Policies and Procedures, Chapter 5, Interview Guidelines [7 USCIS-PM A.5].
[^ 9] See INA 245(a). For more information, see Part A, Adjustment of Status Policies and Procedures [7 USCIS-PM A] and Part B, 245(a) Adjustment [7 USCIS-PM B].
[^ 10] For more information, see Section B, Filing and Fiscal Year Deadline [7 USCIS-PM G.4(B)].
[^ 11] See 8 CFR 103.3(a)(1)(i).
[^ 12] See Ahmed v. DHS, 328 F.3d 383 (7th Cir. 2003). See Coraggioso v. Ashcroft, 355 F.3d 730 (3rd Cir. 2004). See Iddir v. INS, 301 F.3d 492 (7th Cir. 2002). See Nyaga v. Ashcroft, 323 F.3d 906 (11th Cir. 2003).
[^ 13] See INA 204(a)(1)(I)(ii)(II). See 22 CFR 42.33(f).