Our DV-2003 adjustment of status experience.

NOTICE: I'm NOT a lawyer and this webpage does NOT offer legal advice or legal opinions on any specific matters. Anybody using any information on this webpage is doing so at his/her own risk.

Judging from the experiences of other people in DV-2003 and DV-2004 it was not wise to wait with the lawsuit that long; it should have been filed much earlier - probably mid August, maybe even earlier. The reason is that many judges will give government time to settle matters without a formal order and then will be reluctant to issue the order on 30th of September (as happened in 04-cv-1627). A judge might be more likely to issue an order if he/she sees that the government did not act in good faith for an extended period of time (as happened in 03-cv-3303).

All the gory details of the case can be found in sections Lottery, Application, Follow-up, Lawsuit(s) below. Included is our communication with BCIS and the result of later FOIPA requests. There is other interesting material on this page: docket sheets for nine DV-2003 related lawsuits filed in 2003 (there were more such lawsuits - the selection covers only 3 out of 94 federal district courts); hearing transcripts for four of these lawsuits; links to court opinions in relevant precedential cases and links to message boards and pages containing useful information.

You can find some interesting information on this page even if you are doing AOS not based on the visa lottery. It is likely that USCIS lies about security checks (i.e., tries to blame the delays on security checks) in these cases too. Filing a lawsuit is definitely an option (see e.g., 04-CV-4575).

These three documents are interesting: letter from Chicago BCIS District Director Donald J. Monica to Senator Richard J. Durbin dated 06/06/03; letter from Chicago BCIS District Director Donald J. Monica to Senator Richard J. Durbin dated 08/15/03; document from our BCIS file stating that our FBI name check was requested by BCIS on 08/28/03, received by BCIS on 09/10/03 and looked at by BCIS on 09/18/03. The letters of Donald J. Monica imply that FBI name check was requested by BCIS much earlier than 08/28/03. Our BCIS file suggests that FBI name check was NOT requested by BCIS until 08/28/03. The discrepancy was pointed out to DHS Inspector General, USCIS Office of Internal Audit and Donald J. Monica with request for public explanation on 12/06/03. To date no explanation was received. This leads me to believe that the information in the letters of Donald J. Monica was false. If district director provides false information to Senator then what quality of information should people expect to get from the USCIS information officers?

If you have problems viewing documents on this page see technical info.

Acknowledgement

Many thanks
• to attorneys Jeffrey G. Brown _ and James V. Noonan for helping us by filing a lawsuit on our behalf and on the behalf of all people who were in the same situation as us and for paving the path with Paunescu v. INS, 76 F. Supp. 2d 896 (N.D.Ill. 1999);

• to Nicholas Jordan from the office of Senator Richard J. Durbin for helping us by making countless inquiries to BCIS and for following-up on our case.

Lottery

My wife and I both submitted a DV-2003 entry in October 2001. We were selected for "further consideration in DV-2003" (with case number EU15205) on 04/24/02.

Application

We applied for AOS on 11/08/02 by mailing the necessary forms to the INS Chicago District Office (10 West Jackson Blvd) (see the cover letter). The application was processed, by INS on 11/19/02.

In the response INS asked for the medical examination (I-693) to be sent to the local INS within 84 days. We sent the results of medical examination (I-693) to INS on 12/11/02 (see the cover letter), INS acknowledged the receipt of I-693 on 12/20/02.

We also sent $200 (via USPS money order) to the Department of State on 11/25/02. Department of State sent back a receipt on 11/29/02.

Interview

We visited INS Chicago District Office on 12/23/02 because a month has passed since the application was processed by INS and we did not receive an appointment for interview. We received appointment notice (setting the interview date for 02/12/03) on 01/06/03.

We visited INS Chicago District Office on 01/27/03 because we did not receive fingerprinting appointments. The officer printed our fingerprinting appointment letters. Our fingerprints were taken in Chicago (Pulaski ASC) on 01/28/03.

Our adjudication interview took place in INS Chicago Adjudications Office (230 South Dearborn) on 02/12/03. We were told by the interviewing officer Fernandez that our status will be adjusted within few months, after the background checks clear.

Follow-up

Inquiry via USPS

We sent an inquiry to BCIS on 04/09/03. The envelope was marked "DV-2003 Inquiry". BCIS received the inquiry on 04/10/03 and forwarded it to the appropriate section for review on 06/25/03, more than 2 months after they received it. We received no further response to this inquiry.

1st Congressional Inquiry

We contacted the office of Senator Richard J. Durbin on 05/19/03 describing our situation. The office made an inquiry which was received by BCIS on 05/29/03. BCIS responded on 06/06/03 (quote: ``Service records indicate that the applicant's security checks has not been completed. The Congressional Unit has submitted a manual request to have the security checks expedited. The Service is aware that diversity cases are time sensitive. The applicant's case will be further adjudicated when the security checks clear.'').

1st Inquiry in Person

We visited BCIS Chicago District office on 07/21/03 and inquired about the status of the case. We were told that the case file is located at the BCIS Chicago Adjudications Office (230 South Dearborn) and that there is no way to check the status of the case. We were told to wait until contacted by BCIS.

2nd Congressional Inquiry

We contacted the office of Senator Richard J. Durbin again on 07/22/03. The office made another inquiry which was received by BCIS on 07/28/03. BCIS responded on 08/15/03 (quote: ``Bureau records indicate that the applicant's security checks have not cleared, therefore the congressional unit has faxed the biographical information to the appropriate officials so that the checks may be completed within a few days. The congressional unit will follow-up with your office once the checks have cleared.''). A month later (on 09/16/03) our AOS was still pending and there was no sign that our security checks cleared (they did - on 08/28/03 but nobody at BCIS seemed to care until 09/18/03, after the lawsuit was filed). We received no further response to this inquiry.

2nd Inquiry in Person

We submitted an inquiry at the BCIS Chicago Adjudications Office (230 South Dearborn) on 08/21/03 (before we received the response to the 2nd congressional inquiry). The inquiry was handed to applicants' interviewing officer Fernandez. We received no response to this inquiry.

3rd Inquiry in Person

We visited BCIS Chicago District office and inquired about the status of the case on 09/04/03. We were informed that the case is pending on a background check. Officer Coleman consulted with her supervisor and sent an email message to officer Marilyn Roraff. from the BCIS Chicago Adjudications Office. We received no further response to this inquiry.

4th and 5th Inquiry in Person

We visited BCIS Chicago District office and inquired about the status of the case on 09/11/03. We were informed by officer Leach that the case is pending on a background check and that no response to the email sent to officer Marilyn Roraff (sent week ago) was received. We were told that there is no possibility of investigating whether the case was mishandled. We asked to arrange a meeting with Interim District Director. Officer Leach instructed officer Switalski to arrange a meeting with Interim District Director Donald J. Monica. We received no information regarding the meeting.

We also submitted an inquiry at the BCIS Chicago Adjudications Office (230 South Dearborn) on 09/11/03. The inquiry was handed to officer Marilyn Roraff. We received no response to this inquiry.

It should be noted that at this point SDAO Roraff could have easily adjusted our status (by performing an IBIS check and requesting a visa number). Instead she chose to completely ignore our case. Probably our case was not the only one ignored - "... trying to get information out of the Immigration Service is not easy. You almost have to use favors with the people that you've dealt before, and then they get tired of hearing from you." (Donald Kempster, 03-CV-6862).

Lawsuit(s)

A class action lawsuit against BCIS was filed (see docket for 03-CV-6538) in the Federal District Court for Northern District of Illinois on 09/16/03. The plaintiffs in the case were all people seeking adjustment of status or an application for a visa overseas, based on DV-2003, whose applications were not being processed due to administrative delay (typically caused by a delay in background checks). The lawsuit seeked to compel BCIS to process the plaintiffs' application under DV-2003 and to adjust the plaintiffs' status. People from two families (including us) were included as individual plaintiffs.

The first hearing took place before judge James F. Holderman _ (CC eval _) on 09/18/03. U.S. Attorneys pledged to respond to the individual plaintiffs by 09/25/03.

The status of all individual plaintiffs was adjusted on 09/22/03 (we received the welcome letter on 10/01/03 and the plastic cards on 10/02/03). The lawsuit was dismissed on 09/26/03 because the individual plaintiffs obtained relief and the case was deemed moot by the court.

Numbers exhausted

On the morning of 09/29/03 the State Department notified local USCIS offices that all the DV-2003 visa numbers have been used (visalaw _, message _). We were lucky. Had the BCIS not adjusted our cases the lawsuit would probably be dismissed as moot on the 09/30/03 hearing and we would not obtain the green cards. Here's what happened in the other cases:
• Federal District Court for Northern District of Illinois:
  • 03-CV-6862, attorney Donald B. Kempster, filed 09/29/03:
    The hearings (see transcripts 09/30/03, 10/03/03) took place before judge Amy St. Eve _ on 9:00am 09/30/03. Plaintiff's emergency motion for preliminary injunction was entered. The plaintiff's status was adjusted by Chicago BCIS on 09/30/03 and the case was dismissed on 10/03/03.

  • 03-CV-6864, attorney Aurelius Butvilas, filed 09/29/03:
    Plaintiff's status was not adjusted on 09/30/03. The plainfiffs voluntarily dismissed the case on 03/30/04.

  • 03-CV-6869, attorney Mark S. Kocol filed 09/29/03:
    The hearings took place before judge John W. Darrah _ on 09/30/03. The plaintiff's status was adjusted by Chicago BCIS in the afternoon on 09/30/03.

  • 03-CV-6884, attorneys Jeffrey G. Brown and James V. Noonan, filed 09/30/03:
    The hearing (see transcripts 09/30/03) took place before judge Marvin E. Aspen _ (CC eval _) on 9:00am 09/29/03. Plaintiffs emergency motion for preliminary injunctive relief was denied. As of now the status of this case is "dismissed with leave to reinstate".

• Federal District Court for the Eastern District of New York:
  • 03-CV-4928, 03-CV-4929, attorney Michael P. DiRaimondo, filed 09/26/03:
    Plaintiff's status was not adjusted on 09/30/03. See transcripts of 03-CV-4928/4929 from 10/01/03, 10/02/03, 10/03/03. There are more documents in the docket now: 1, 2, 3, 4, 5, 6. 7.

There were more (e.g. 03-CV-3303, 03-CV-4677, 03-CV-1855) such cases filed in 2003. You can get more information using US Party Index search. Here are some search results: Eduardo Aguirre, Thomas Ridge, BCIS, Donald J. Monica, all 540/890 lawsuits in ilndc in Sep'03.

There were some lawsuits in 2004 as well.

If you want to check whether such lawsuits were done in your district you can get a PACER account. Then you can search for lawsuits where the defendant is the Interim District Director at that time (see the list ). As you can see from the searches you might miss some cases.

The docket sheets were obtained using PACER. Apendices from the complaints were removed to protect privacy of the plaintiffs. For more information about privacy and public access to electronic case files see Judicial Conference Privacy Policy. The transcripts were obtained from the appropriate court reporters. Many thanks to those who sponsored the purchase of the transcripts.

The actual number of visas issued in DV-2003 was 50,712

Info about lawyers

• Jeffrey Grant Brown.
• Aurelius Butvilas.
• Michael DiRaimondo - is undoubtedly the lawyer of choice in Eastern District of New York.
• Richard Hanus - the lawyer we initially considered hiring for the lawsuit. Based on my personal experience I strongly recommend my friends to avoid this lawyer.
• Donald Kempster.
• Mark Kocol.
• James V Noonan.

Aftermath

FBI FOIPA (Freedom of Information and Privacy Act) request

We sent a FOIPA request to FBI based on the following template (asking for records indicating when our name checks were initiated and completed) on 08/25/03 (in order to avoid the following response add the declaration from the response to your request). We received a response on 09/16/03 stating that no records were found. Plaintiffs in other case sent a FOIPA request to FBI using the same template. FBI's response was very different - in their case FBI had pertinent records.

BCIS FOIPA request

On 09/30/03 we submitted (using form G-639) a FOIPA request to Chicago USCIS. We asked for in-person review of our file. We weren't quick enough - our file already moved to National Records Center (NRC). We submitted request to NRC using form G-639, this time with Notarized Affidavit of Identity.

We received a response - 80 pages. Out of those 12 were witheld (probably the results of CIA name check). Both documents in the response pertitent to the FBI name check stated that request for name check was sent to FBI on 08/28/03. The check was processed by FBI the same day. The check was downloaded to USCIS computers on 09/10/03. Nobody at Chicago Adjudication Office seemed to care until the lawsuit came along - the check was viewed at USCIS 12:18pm 09/18/03 and 4:02pm 09/18/03.

Here is a summary when various checks/requests were done (see the I-485 processing worksheet):

• Fingerprints 01/29/03 (viewed on 10:57am 02/12/03 and 4:03pm 09/18/03),
• IBIS 02/12/03 and again 09/22/03,
• FBI name check 08/28/03 (received by BCIS on 09/10/03),
• CIA name check 11/18/02 and 02/11/03,
• visa numbers request 4:54pm 09/18/03 (numbers received 09/22/03),
• adjustment of status 09/22/03.

There were some strange documents in our file. Why was there a document that my status was adjusted with date 01/08/03? Why was there a request from USCIS to KCC requesting my wife's diversity visa folder on 06/26/03?

Court opinions

28 USC §1361. Action to compel an officer of the United States to perform his duty - The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

For more information check AILF _, visalaw _ or get The AILA Litigation Toolbox from the law library around you.

Lawsuit after the end of the fiscal year (09/30)?

Appeals courts decided in favor of defendants (i.e. the applicants AOS was denied). See the following article about Charles Kibarra Nyaga _. You can also read the circuit courts' opinions:
• Nyaga v. Ashcroft _,
• Iddir v. INS _
• Ahmed v. DHS _.

Note that these opinions were issued in the 7th and 11th circuits and it is possible that courts in other circuits will decide otherwise. See the following explanation _ of the US judicial system.

Lawsuit before the end of the fiscal year (09/30)?

Teodor and Lelia Paunescu won DV-1998. Their status was not adjusted by 09/23/98 (because FBI did not clear Teodor's fingerprints). They filed a complaint for mandamus against INS et al on 09/23/98. The court ordered INS to adjust their status contingent upon favorable return of Teodor's fingerprints from FBI on 09/25/98. FBI failed to return the result and INS did not adjust their status by 09/30/98. The lawsuit continued _. Paunescus won and got their green cards (it took one more year (see the docket for 98-CV-5971)). See the following published opinion: Paunescu v. INS, 76 F. Supp. 2d 896 (N.D.Ill. 1999) (judge Robert W. Gettleman _ (CC eval _)).

Links

Newsgroups, discussion boards, etc

1. ImmigrationPortal - possibly the best choice, has specialized group for DV visas
2. DV message board - pros: no need to register, cons: troll infested
3. DV Info - seems to be slowly dying
4. alt.visa.us (general immigration)
5. misc.immigration.usa (general immigration)

Background check

According to the document Posted on AILA InfoNet at Doc. No. 03091740 (Sep. 17, 2003) (see this message _) the background check for DV consists of FBI fingerprint check, FBI name check _, CIA name check and IBIS check _.

FOIPA

Tips and Tricks using FOIA _, FOIA Examples _. Excellent FOIA page by ACLU

What is FBI name check?

An excellent primer on FBI name check from immigration portal.

National Name Check Program

The National Name Check Program ("NNCP") has the mission of disseminating information from the FBI's Central Records System in response to requests submitted by federal agencies, congressional committees, the federal judiciary, friendly foreign police and intelligence agencies, and state and local criminal justice agencies. The Central Records System contains the FBI's administrative, personnel and investigative files. The NNCP has its genesis in Executive order 10450, issued during the Eisenhower Administration. This executive order addresses personnel security issues, and mandates National Agency Checks ("NACs") as part of the pre-employment vetting and background investigation process. The FBI is a primary NAC conducted on all U.S. Government employees. From this modest beginning, the NNCP has grown exponentially, with more and more customers seeking background information from FBI files on individuals before bestowing a provilege whether that privilege is government employment or an appointment; a security clearance; attendance at a White House function; a Green card or naturalization; admission to the bar; or a visa for the privilege of visiting our homeland. More than 70 federal and state and local agencies regularly request FBI name searches. In addition to serving our regular governmental customers, the FBI conducts numerous name searches in direct support of the counterintellingence, counterterrorism and homeland security efforts of the FBI.

Explanation of the Central Records System

The Central Records System ("CRS") utilized by the FBI enables it to maintain all information which it has acquired in the course of fulfilling mandated law enforcement responsibilities. The records maintained in CRS consist of administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes. This system consists of a numerical sequence of files broken down according to subject matter. The subject matter of a file may relate to an individual, organization, company, publication, activity, or foreign intelligence matter. Certain records in the system are maintained at FBIHQ. Records which are pertinent to specific field offices are maintained in those field offices.

Through the General Indices, FBIHQ and each field division can access the CRS. The Genral Indices are arranged in alphabetical order and consis of an index on various subjects, including the names of individuals and organizations. Only information considered pertinent, relevant, or essential for future retrieval is indexed.

Communications directed to FBIHQ from various field offices and Legal Attaches ("Legats") are filed in the pertinent case files and indexed to the names of individuals, groups, or organizations which are listed in the case captions or titles as subjects, suspects or victims. Searches made in the index to locate records concerning particular subjects are made by searching the mame of the subject requested in the index.

The entries in the General Indices fall into two categories:

• A "main" entry - a "main" entry carries the name corresponding with a subject of a file contained in the CRS.
• A "reference" entry - "reference" entries, sometimes called "cross-references," are generally only a mere mention or reference to an individual, organization, etc., contained in a document located in another "main" file.

On or about October 16, 1995, the Automated Case Support ("ACS") system was implemented for all Field Offices, Legats and FBIHQ. More than 105 million records were converted from automated system previously utilized by the FBI. ACS consists of the following three automated applications that support case management functions for all investigative and administrative cases, which are:

• Investigative Case Management ("ICM") - ICM provides the ability to open, assign, and close investigative and administrative cases as well to set, assign and track leads. A case is opened by the Office of Origin ("OO"), which sets leads for itself and other field offices as needed. The offices that receive the leads are referred to as Lead Offices ("LOs"), formerly known as Auxilary Offices. When a case is opened, it is assigned a Universal Case File Number ("UCFN"), which is utilized by FBIHQ and all offices conducting or assisting in the investigation. Using fictitious file numer "111-HQ-12345" as an example, an explanation of the UFCN is as follows: "111" indicates the classification for that specific type of investigation; "HQ" is the abbreviated form used for the Office of Origin of the investigation, which in this case is FBI Headquarters; and "12345" indicates the individual case file number for that particular investigation.
• Electronic Case File ("ECF") - ECF serves as the central electronic repository for the FBI's official text-based documents. ECF supports the universal serial concept, where only the creator of a document serializes it into a file, providin single source entry of serials into the computerized system. All origins serials are maintained in the OO case file.
• Universal Index ("UNI") - UNI continues the universal concepts of ACS by providing a complete subject/case index to all investigative and administrative cases. Only the OO is required to index; however, the LOs may index additional information as needed. UNI, an approximately 77.6 million record index, functions to index names to cases, and to search names and cases fot use in the FBI investigative and administrative cases. Names of individuals or entities are recorded with identifying information such as the date or place of birth, race, sex, locality, social security number, address or date of event.

The decision to index names other than subjects, suspects and victims is a discretionary decision made by the investigative FBI Special Agent ("SA"), the supervisor in the field division conducting the investigation and the supervising FBI SA at FBIHQ. The FBI does not index every name in its files; it indexes only that information considered petinent, relevant, or essential for future retrieval. Without a "hey" (index) to this mass information, information essential to ongoing investigations could not be readily retrieved. The FBI files would thus be merely archival in nature and could not be effectively used to serve the mandated mission of the FBI, which is to investigate violations of federal criminal statutes. Therefore, the General Indices to the CRS files are the means by which FBI can determine what retrievable information, if any, the FBI may have in its CRS files on a particular subject matter.

When the FBI searches a person's name, the name is electronically checked against the UNI. The searches seek all instances of the individual's name and close date of birth, whether a main file name or reference. By way of explanation, a main file name is that of an individual who is, himself, the subject of an FBI investigation, whereas a reference is someone whose name appears in an FBI investigation. References may be associates, witnesses, conspirators, or a myriad of other reasons may exist to explain why an FBI SA believed it important to index a particular name in an ivestigation for later recovery. The names are searched in a multitude of combinations, switching the order of first, last, middle names, as well as combinations with just the first and last, first and middle, and so on. The UNI also searches different phonetic spelling variations of the names, especially important considering that many names in our indices have been transliterated from a language other than English.

If there is match with a name in a FBI record, it is designated as a "Hit," meaning that the system has stopped on a possible match with the name being checked. At that point,a human being must review the file or indices entry to further refine the names "Hit" on. If the search comes up with a name and birth date match, it is designated "Ident." An "Ident" is usually easier to resolve.

Resolution Rate

Approximater 75 percent of name checks are electronically returned as having "No Record" within 72 hours. A "No Record" indicates that the FBI's Central Records System contains no identifiable information regarding a particular individual. Duplicate submissions (i.e., identically spelled names with identical dates of birth wubmitted within the last 120 days) are not checked and the duplicate findings are returned immediately to the contributing agency.

Because a name and birth date are not sufficient to positively correlate a file with an individual, addition review is required. A secondary manual name search usually identifies an addition 20 percent of the requests as having "No Record," for a 95 percent overall "No Record" response rate. The remaining 5 percent are identified as possibly being the subject of an FBI record. At this point, the FBI must noe be retrieved and reviewed. If the records were electronically uploaded into the FBI ACS electronic keeping system, it can be reviewed quickly. If not, the relevan information must be retrieved from an existing paper record. Review of this information will determine whether the information is identified with the request. If not, the request is closed as a "No Record."

Once a record is retrieved, the information in the file is reviewed with possible derogatory information. Less than 1 percent of the requests are identified with an individual with possible derogatory information. The FBI then forwards a summary of the derogatory information to the requesting agency.

Why is it taking longer?

In this period of heightened security concerns, a review of the backgroung check procedures employed by USCIS was conducted in November 2002. It was determined at that time that in order to better protect people and interests of the United States, a more detailed, in depth clearance procedure was required. One of these procedures involved the name check clearance performed by the FBI. At that time only those "main" files that could be positively identified with an individual were considered responsive. The risk of missing a match to possible derogatory record(s) was too great and therefore, the search criteria was changed to access references. From a process standpoint, this meant many more files were required to be reviewed for each individual.

Source:affidavit of Carol L. Keeley (Assistant Section Chief in NNPCS at FBIHQ) to 04-CV-1627.


Status of the FBI name check?

Maria was able to check the status _ of her FBI name check through the office of representative Susan Davis. I personally verified this information by calling the office of Susan Davis (619-280-5353) on 08/18/03. I was told that they get the information form a congressional liaison in FBI. Our Senators' and Representative's offices could not verify whether the FBI name check was requested.

Since then the situation has changed. See the primer on FBI name check above.

DV visa issued CP/AOS

	CP	AOS
1996	?	10,786
1997	?	9,227
1998	?	5,415
1999	?	2,894
2000	?	2,892
2001	?	1,955
2002	?	1,989
2003	48,115	2,597

Misc

Search for lawyers

Finding a competent lawyer was harder than we thought. We did contact over 10 "random immigration lawyers" in Chicago at the end of August 2003. Only one considered a lawsuit in a federal district court to be an option.

Other people also had bad experience with "random immigration lawyers" (post 1 _, post 2 _).

Other Senators/Representatives

Offices of Senator Peter Fitzgerald and Representative Bobby Rush essentially ignored our plea for help (unreachable, not sending us fax when promised, not contacting us back when message left, etc). Since then Achieng Obuong the constituent services representative for Senator Peter Fitzgerald, was replaced - so your experience can be different. The office of our Representative finally did submit an inquiry to BCIS. Unfortunately DV-2003 was over at that point.

• 04-cv-449 complaint, 04-cv-449 amended complaint (the case of Kichul Lee - denial of an application for citizenship because of a minor fish and game violation (collecting 33 oysters over the limit)).

• 04-CV-4451 - delayed processing of citizenship application (N-400).
• 04-CV-5092 - delayed processing of petition for alien relative (I-130).
• 04-CV-5494 - delayed petition for alien worker (I-140). The complaint is redacted to protect privacy of the plaintiff.
• 04-CV-5595 - delayed processing of marriage based AOS (I-485).
• 04-CV-4575 - delayed processing of I-485 (successful)

Technical Info

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