As part of the Tesfaye lawsuit ( a suit by Morrison Urena regarding Addis Ababa and Khartoum) the government have filed a motion to dismiss. That doesn’t automaticall mean they will get the case dismissed, the arguments are ongoing.
However, as part of the motion, the government have filed a number of exhibits, and these exhibits are always interesting. They provide detail about how the government “says” they are working. It doesn’t always follow the reality, and there is often some ambiguity and even contradictions in their own statements, but there are some interesting findings in the exhibits. So they are worth paying attention to.
Firstly the motion and exhibits can be found here . Thanks to Curtis for making that available.
Now – let me go through some of the things I have noticed.
Cables
Cables (sort of like emails) creating a record of the communications from the government and the embassies.
The cable dated November 20, 2020 sets out the tiered prioritization that put DV visas at the bottom of the list. This prioritization was challenged in the 2021 lawsuits and actually declared “illegal” by Judge Mehta (now appealed). The tiered scheme cannot be applied to DV2021 cases for this reason.
The cable dated September 28, 2021 sets out the removal of the “diplomacy strong” framework, and replaces that with a new way to decide how an embassy could decide to operate due to Covid issues. That is interesting to read their mindset, particularly when local conditions where reported as unaffected by Covid, but the embassy remained closed (KDU embassy was an example of this until March). They spend a lot of energy laying out the conditions that need to exist to operate the embassy. I mention this as important because it makes clear why some embassies were able to remain closed or operate in very limited capacity and the DoS justification for that.
The cable dated November 16, 2021 is very interesting. After the prioritization was blocked, this cable sets out the list of scheduling priorities, which had been announced as being up to the embassy to determine within the limitations of their operating status. So – despite the prioritization being blocked, the government reiterate the priority of special consular services, Immediate replative, K visas, and family reunification cases. It then goes on to say it is the departments policy to issue as many DV visas as possible within the quota, and, interestingly, says embassies should prioritize cases related to lawsuits.
They literally made the list to avoid getting sued. That’s pretty amazing, and shows their mindset.
Declarations
The declarations are sworn statements by key players within KCC or other roles. Not all the declarations are interesting but I will point out a few important points.
The declaration of Morgan Miles describes how KCC operate. I have read a number of previous declarations from Mr Miles, and found this one to be a little more detailed than previous ones, but also somewhat contradictory to his previous statements. However, there are some interesting nuggets in there, so I am going to spend some time dissecting that for you here.
i) In point 6 of his declaration, Mr Miles describes that cases can only be scheduled after the DS260 is submitted, processed and the case is current. No big shock there, although in previous statements Mr Miles (and others) tried to suggest that no post submission processing was needed after the December 9th pilot program was introduced. As I have stated before, it is obvious that they do perform at least some level of processing, even now.
ii) In point 6 of his declaration, Mr Miles also points out that embassy allocation is based on the residence of the selectee. That again, is something I already understood, but it is interesting to see it confirmed.
iii) In point 7 of his declaration, Mr Miles discusses the pilot program which removed the need to submit the documents. The wording is clumsy, so he again re-opens the door to saying no processing is required, but I think that was an inadvertent slip.
iv) In point 8 of his declaration, Mr Miles describes the factors used for deciding whether KCC will reassign a case to another embassy – these are factors I recently described in a post about changing embassies. But again, it’s useful to see their thinking clarified. He also confirms the transfer process, again as I described in the earlier article.
v) In point 10 of his declaration, Mr Miles points out the three things needed to be scheduled. First, that the case is processed (either the old method with documents or the pilot program method without documents). Second that the embassy makes space available, and third that the case is current.
vi) In point 10 of his declaration, Mr Miles points out there is a separate processing queue for each embassy. That is kind of big news that I and others had guessed back around February or so. These embassy specific queues have not always existed, leading to embassies wasting capacity. I think it was probably an improvement they made as part of the pilot program, and is a welcome adjustment that is allowing them to work more efficiently. The process must rely on the process of “opening” each DS260 in submission date order (as Mr Miles has previously described), because the staff would need to add that case to a list with some pertinent info (embassy, case number DS submission date and processing status). The list itself (or an extract of it, at least) is included in the declaration so more discussion of that in a few moments.
vii) In point 10 of his declaration, Mr Miles also discusses the ordering of cases for scheduling. Please understand their is a difference between scheduling and processing, but he is discussing scheduling in this point. He states it is based on case number order. If true, that would be “correct” according to the intention of the rules of the program since case number is supposed to give a priority. Pre December 9th that was applied by processing the documents in CN order (whereas DS260s were taken in DS submission order). However, by maintaining the embassy specific lists they could be applying that CN order. I say “could be” because although I have been aware of the embassy specific lists and the CN order which is seen at some embassies (as noted for some months now), there are some cases and embassies that appear to be applying the “normal” DQ date rule. Furthermore if you continue reading you will also see that a later declaration confirms the DQ date is used as a “tie breaker” – which is exactly what I have been describing for a long time now, so on balance this seems to align almost exactly to what I have understood for a while.. So – I hope KCC are applying the CN date rule BUT that will be a huge blow to high CN cases that were hoping for a benefit from early submission. That benefit has certainly been evident in the past (very recent past) and has even been argues as a justification for ordering anomalies in previous lawsuits. So – the jury is still out on that point, in my view.
viii) In point 11, 12 and 13 of his declaration, Mr Miles declares there are over 15k cases (32k selectees) already DQ and not scheduled. That is a sobering number because in a way that might be considered close to “enough” if they were to stop processing, BUT the earlier comments about CN ordering should not allow them to cease processing. He also states there have been over 15k cases scheduled (31k selectees) which aligns well with the data we have from CEAC. Point 13 lists the progress as of December 9, as if to underline the progress that has been made under the pilot program.
ix) In the declaration there is an excel sheet that lists some cases of the plaintiffs in the Tesfaye case, showing their status, order in the queue and so on. It’s fascinating and somewhat frustrating. I wish they would simply make this information available to all people on a per embassy basis. It would provide transparency to all and perhaps even allow more cases to be scheduled at the quieter embassies. However, it’s also fairly depressing because it lists the case position, and how many cases are assigned and ready for scheduling to the embassy. In Addis there are 452 cases allocated to the embassy (and recent capacity is running at just over 30 cases per month). That does not bode well for high CNs in Addis. In Khartoum it’s a similar sad story. 448 cases allocated, and capacity of 10 to 20 cases per month. There are only three months left.
Here is the list:
The status codes for each case are interesting showing the following codes.
Now, it is not 100% clear whether DOCQ is before DOCC status. Update – I believe DOCC is a later stage than DOCQ, but both are pretty much the point you need to be before you can be scheduled.
RV means DQ but the case is not current, and AV means the case is DQ and current and “allocated”. Again, I have previously described this status, as being when KCC respond the case is “current for interview processing”. It’s an important status because at that point the case cannot be changed (no DS260 changes, no embassy changes). That status is only supposed to last a few days because it would normally be followed quickly by a 2NL, BUT in these times some cases are staying in this allocated status for months waiting for available capacity at the embassy, and that is what I have described as being in “limbo”.
FP is the status when the 2NL has been sent.
The declaration of Rebecca Austin describes how embassy capacity is managed and related to the Visa Bulletin. Now it should be noted that Ms Austin works for the NVC, but her declaration is included because of its relevance to DV cases. This declaration confirms a point I have been explaining for a long time. That, in the case of an embassy capacity being less than cases ready for scheduling, the date that the cases became documentarily complete (DQ) is used for tie breakers (deciding which cases should be pushed to the following month). Now, this is a principal that has been described before and has been observed up to present day. However, it contradicts (to some extent) statements made by Miles Morgan which I will discuss later. However I think there is something in the business processes that can be used to explain this contradiction.
Ms Austin also provides information for capacity at Addis (April – 36 cases and May – 33 cases for April and May) and Khartoum (April – 20 cases and May – 10 cases). Again, this information is something I have been explaining. Embassies make their DV case capacity known and that determines which cases get scheduled in any given month.
So in summary, there is a lot to unpack here and I am sure over the coming days we will reveal more interesting info from this motion and there is another one due from the lawsuits that Jesse Bless has filed. So – interesting learning.
My main take away is that KCC finally did something right. The pilot program adjustments have been successful in scheduling more cases than would otherwise have been possible. I now believe we will see at least 40k visas issued, probably 45k. In that case lawsuits become harder to win, but actually, one could argue that the lawsuits have already won. The lawsuits have no doubt caused procedural changes and KCC have worked on cases just because of the lawsuits.
However, this is a tale of two cities. There are many people disadvantaged at specific embassies that have remained closed or scheduled a tiny number of cases compared to their local demand. That is going to be heartbreaking for some people. So – whilst KCC might claim to have improved the processing and possibly even reinforced the correct ordering, they will unfortunately leave many cases behind, simply by bad luck of being assigned to a stubbornly lazy embassy.
I hope this article was interesting. I look forward to hearing your thoughts!
February 3, 2023 at 11:02
Hello Simon. After reading this lawsuit it looks like it might be challenging to try that again with DV2023 winners specifically at slower embassies like Addis Ababa and Nairobi. I am wondering if starting a new case targeted at these embassies would make any difference since those “lists” you mentioned were created for 2022 and might not apply for 2023 winners. I would like to hear your thoughts on this.
February 3, 2023 at 14:55
No – the lawyers seem convinced that there is nothing they can do to move specific embassies.
June 2, 2022 at 15:06
Hi sir,my niece applied dv2022 without a passport and was randomly selected with case no AF9xxx but her visa wasn’t processed, now that the passport rule has been eliminated, is there anything she can do now about it?thanks
June 2, 2022 at 20:04
I can’t answer you because your question is too vague.
May 26, 2022 at 16:13
Hi Brit. I am a 2023 selectee. Not sure I get all this info correctly related to CN´s. DS260 submition date and embassy capacity all at once. I am from Costa Rica which usually has very few applicants and therefore very very few selectees, and this embassy even though is working at 50% still, doesn´t seem to have a high volume of inmigrant visas (usually is more non-inmigrant visas as far as I can tell) I have already sent my DS260´s for me and my derivatives. So I guess my question here is… is there a chance that my case is scheduled for interview before some other lower cases if my embassy can take it? or KCC will not schedule me until they reach my case number even though there is no volume in the embassy? From previous years data I think there were only like 3 to 6 cases for CR.
June 1, 2022 at 16:45
You will not be interviewed until your case number is current.
May 21, 2022 at 21:38
Hi sir,am a dv 2023 winner,can I fill my ds 260 with passport number while my wife and kids fill theirs without passports and only take theirs to the interview? please help ????
May 22, 2022 at 22:03
Yes that is possible.
May 8, 2022 at 02:07
Hello Simon,thanks for great job you are doing.My case is AF59XXX,submitted ds260 in November.when I check on the CEAC,I see that cases higher than mine already have 2NL but I haven’t receive mine yet,what could be the issue?
May 8, 2022 at 02:38
Many cases are waiting – but a lot depends on how your embassy is operating.
May 8, 2022 at 09:50
I forgot to indicate that in the CEAC platform,cases higher than mine in the same embassy already have 2NL and their case status changed to ready while mine is still at NVC.Embassy is Yde Cameroon
May 8, 2022 at 16:59
I know.
May 8, 2022 at 01:42
Dear Simon, concerning reentry permit (I-131), I kindly ask for your opinion / advise, if possible:
Green card was activated last year (August 2021), and after one month staying here I left USA to take care business and obligations in my home country before moving permanently.
Due to certain personal issues and problems that hit the World (Covid, Ukraine, etc.), I only managed to return this year (2022) one month ago (April), so I was absent from the USA for 8 months. At the POE I experienced no particular problems with the CBP officer, however he did point out that I was absent for more than 6 months and that I should have asked for the reentry permit before leaving USA last year in August; he still kindly allowed me to enter in US.
Now being in the USA, there is possibility that I will – unfortunately – have to go back again soon to my home country and be absent at least one to max two years period.
So, is it possible to ask for reentry permit (I-131) is this scenario? I understood from official instructions that it is possible to ask for reentry permit, however do not understand if this is possible in scenario I just explained above?
Thanks in advance.
Best Regards
May 8, 2022 at 02:37
Yes you can apply for one. However, it won’t be 100% certain to be approved. Apply while in the USA.
May 8, 2022 at 03:57
If it comes to that, I will definitely apply for the reentry permit while I am still in the US.
However, my understanding is that waiting period for appointment at the USCIS is up to 60 days, after request submitted? Not sure that I will have that much time to wait.
May 4, 2022 at 07:39
Thanks Brit for the good job and your patience.
please, where can i check my status code? AF35XXX
Regards
May 4, 2022 at 18:10
I’m not sure what you mean. Your status (after scheduling) is available on CEAC.
May 1, 2022 at 08:31
Hi simon
Since cases of Dv 2021 are not consolidated
And have different order, Will plaintiffs from all cases are put together in one queue or they will be processed as an individual case?
May 2, 2022 at 04:02
I don’t know.
May 1, 2022 at 01:10
Good Night Mr Simon
I am Mohamed
Cairo ☹️ 2022AF22905
My current stats is DOCQ
As per their key words I am processed
But when I asked KCC about my status they informed me allow several weeks for processing
What does that means?
May 2, 2022 at 04:02
It means you are not ready for scheduling yet.
May 2, 2022 at 08:58
Thanks a lot Mr. Simon for your feedack.
But DOC means my DS260 has been processed or not yet?
As per their stats code it has been processed, but KCC replied on me allow several weeks !! very confused.
May 2, 2022 at 14:13
So it seems they need to do the checking mentioned in DOCC
May 2, 2022 at 16:07
Thanks a lot Mr. Simon for your time and all of your efforts and support.
Much appreciated
April 30, 2022 at 08:13
Thank you for this really nice highlight! In your perspective do you see this Tesfaye lawsuit as a potentially winning one, do u see it taking the same course as the Hamad lawsuit, or are you not sure yet?
May 2, 2022 at 04:00
I don’t know.
April 30, 2022 at 01:58
Thank you for sharing article,of those with high case numbers and those whose embassy are working at full capacity “casablanca”,and my case around 44k still not processing submit in august, do u think that casablanca will done 2000 visas this year?
best regads!
May 2, 2022 at 04:00
I don’t know.
April 30, 2022 at 00:44
Based on new system, what is your guess on how will they process Plaintiffs of DV2021?
May 2, 2022 at 03:59
I have no idea.
April 29, 2022 at 07:29
Hello.
a good read. i can concur on the DS submission date at im AS16xxx from CLM and submitted by DS260 in December. last month CLM had case numbers high as AS29xxx as ready but mine is still at NVC. so yes CLM que is definitely following the DS 260 submission date.
Interestingly last week many of the cases which the interviews were scheduled for June at CLM were asked whether they would like to/ready to face early interview in May. so CLM is doing something right i hope. TC sir.
May 2, 2022 at 03:55
Thanks
April 28, 2022 at 17:26
Hi Brit,
So there’s a part in the article that I don’t get. My case number is 2022AF29XX I’m waiting on Cairo embassy. Why have higher case numbers gotten interviews but not us. Is it because they are going off of ds-260 submission dates and not case numbers?
May 2, 2022 at 03:49
Cairo is not working well, so they probably just took early DQ cases.
April 28, 2022 at 00:00
2022EU107xx. So finally we get and email back from KCC that we are ready for getting interviewed when embassy ready. But after waiting for one month I see cases just recently at my embassy get “ in transit”. Case numbers from 13500 to 18500. This looks like they prioritize the interview queue by DQ date and not case number. Is that correct?
April 28, 2022 at 05:15
Fully discussed in the article above.
April 28, 2022 at 14:17
I sent ds260 on 12 august cn 2022EU12000 we are waiting for an interview from ankara, my file is interview process, but the big cn files that sent ds260 in may passed to us and they are getting interview. Do you think I will be interviewed, the time has decreased a lot.
May 2, 2022 at 03:45
I don’t know.
April 27, 2022 at 16:13
Thank you for sharing article. My DS260 is still processing, and I think what I can do now is just pray for my embassy (TAI) is not lazy haha…
May 20, 2022 at 06:43
On 5/17 I got my 2NL. Thank god and thank our embassy TAI is working in normal condition. Also I have emailed the embassy to reopen my DS260 and submit my spouse’s DS260 (he hasn’t submitted yet). Our embassy responds soon and does in one day. I am very appreciated it. Thank you Simon you have answered my question when I ask before. You are very kind, hope you everything goes well in the future. Best regards. By Vy from Taiwan.
May 21, 2022 at 16:04
Best of luck for the interview.
April 27, 2022 at 11:37
Hello Brit
I’m Dv 2022 winner, I submitted my ds 260 November 6,and my case number is 30kxxx, I’m to be current in April, but I haven’t received any email from LCC
April 28, 2022 at 05:06
Lots of people are waiting….
April 27, 2022 at 10:03
Hi Brit,
Thanks so much for your time and effort to make things so easy to understand. Please what is the meaning of the figures in bracket and without bracket. for instance AP 854 (458). AF42XXX
April 28, 2022 at 05:06
People versus cases (each case contains the winner plus any derivatives).
April 27, 2022 at 07:45
That is interesting, thanks for summary! Do you think that because there is so many DQ’s, they don’t process more DS-260s? I’m Bou Jabbour plaintiff waiting for DS-260s to be processed. CN is 2022EU26xxx so it’s high but our embassy has just few winners and they are working normally so capasity should not be problem. We sent our DS-260s in July, and I’m normal engineer, nothing to do with rocket science or anything else suspicious. Only “odd” thing could be that my family is just me and my 2 kids (they are 18 &19 years olds), and I never was married with their dad. But I don’t think that been single mom could be reason to KCC not process our DS260s… I try to wait patiently but it is not easy!
April 28, 2022 at 05:05
It really depends on your embassy. Being a single Mom is no problem.
May 9, 2022 at 21:07
Same 2022EU26xxx here again, KCC still has not processed our DS-260s (I asked last week from KCC).
Is it possible that KCC has already stop processing DS-260s for DV2022?
If there is own queue for every embassies to DS-260 process, they should have processed all cases from Finland because there is only 28 winners 2022 (so maybe 13-14 cases). Around half have gotten their visas. Our embassy has answered to me that they are working normally, but they can’t desides how many interviews KCC gives to them.
May 10, 2022 at 15:35
I believe they will continue to process DS260s where cases are assigned to embassies with spare capacity. And your embassy decides the capacity themselves, but KCC pick the cases to schedule.
April 26, 2022 at 23:31
Hi Simon,
My husband is a DV2022 winner, we had our interview on April 19th. The Co said she approves our visa but needs I 5535 for my 18 year old daughter. How long will this process take. Our case on CEAC shows DV01 as refused & DV03 refused . DV 02 Ready . The whole status of our case is refused too. What is the usual approval rate after this AP. Should I keep checking CEAC for updated status or wait for a phone call from the embassy ?
April 28, 2022 at 04:58
There is no “usual”. All you can do is wait.
April 26, 2022 at 16:26
Hey Brit,
Great insight as usual. Thanks for all you do. So it looks like our worst fears have come true for Addis. So I am AF29K I sent DS May 15th. docs in early Oct. I was ready to be scheduled, DQ sometime before February according to email from KCC.
”Your case number is now current for interview processing. Once the interview date has been scheduled, you will receive notification via email to check https://dvprogram.state.gov. If you need to make changes to your DS-260 you should contact the consular section where you will be interviewed, or bring the information about your changes to your interview appointment. Because your case is ready to be scheduled, KCC can no longer unlock your application.”
Am I in that queue of 452? At this rate I don’t even think they’ll interview 300 before Sept. 30. I am thinking of joining the Morrison Lawsuit, only a few days left. What do you advise?
Thanks.
April 28, 2022 at 04:52
Well yes, you will be in the 452 – so you can decide what to do.
April 26, 2022 at 16:13
Any news regarding DV2020?
April 28, 2022 at 04:51
No – just a matter of waiting for the appeal.
April 26, 2022 at 14:54
So long story short, there is no news for plaintifs 2021 ?
April 28, 2022 at 04:51
Correct – just a matter of waiting for the appeal.
April 26, 2022 at 13:36
mr simon what about DV 21 scheduling time
April 28, 2022 at 04:49
There is an appeal ongoing, so I don’t expect any movement on those visas for months.
April 26, 2022 at 08:08
Thanks for enlightening us on this matter. Although, I wouldn’t be so sure about the 40k visas that you forecasted as a possibility in this article because I believe the embassies are a bigger part of the problem here. Besides, I don’t understand the justification for prioritizing cases based on DS260 submission date that was in Ms. Austin’s decleration. This should not be happening if all cases seating at the queue list for a particular embassy are DQ and finished processing. Why would they choose submission date over DQ date to determine a case fate? If such embassy has a limited capacity why wouldn’t they just prioritize cases based on the case number rule?
April 27, 2022 at 22:32
Yes, the embassies are a limiting factor, and that certainly is impacting the process (particularly in AF region, and now in Nepal).
I don’t agree that Ms Austin said they were prioritizing based on DS260 submission date. She is referring to the “priority date” which is not used in DV cases. DQ is a strong (and logical) method to prioritize cases, as is case number. DS submission date is not (although an earlier submission can at times mean an earlier DQ date).
April 26, 2022 at 07:16
Thank you for this Simon. I am unsure if I should be optimistic at this point – high case number at a slow(ish) embassy, but a plaintiff in a lawsuit (which will hopefully increase my chances). Concerning that my DS has not yet been processed, considering they seem to have enough DQ cases for the amount they want to schedule. We will just have to wait and see. (2022AF46xxx – Johannesburg)
Very interesting article. Thank you for taking the time to put it all together. I hope you and Jesse (and possibly Curtis) will discuss this in a live session at some stage. Have a lovely day.
April 27, 2022 at 21:46
Yeah, it’s hard to say what will happen, but being a plaintiff does give you an edge.
May 9, 2022 at 14:40
I keep chickening out in telling KCC I am a plaintiff… Is there any downside in telling them?
May 9, 2022 at 15:23
No
April 26, 2022 at 07:09
If I get this clear, the two category of people who have a very slim chance of being scheduled for interview are those with high case numbers and those whose embassy are not working at full capacity.
April 27, 2022 at 21:44
Probably, yes.
April 28, 2022 at 15:01
1) I know in a normal year you could have tell which case numbers are high, can you do same in this abnormal year? If yes, what do you think is the range for high case numbers for AF region.
2) If someone has a high case number and also his/her embassy is not working at full capacity but he/she is DQed and a plaintiff in a lawsuit, does it increase his/her chance?
May 2, 2022 at 03:48
1. Apart from Egypt, all AF cases are current, so the question is pointless.
2. I can’t guess the chances of individual cases. Of course being in a lawsuit can help.
April 26, 2022 at 06:55
It was indeed very interesting. If they’ll do their job in order to avoid being sued then the lawsuits have really already won.
Thank you for the clarification ????
April 26, 2022 at 05:17
I am AF24 QD’d since middle of February , if the declaration states that scheduling is done at the selectee’s resident address. Why is it that since February I have sent multiple emails to get kcc change my location to where I live permanently. I am a permanent resident so why have they scheduled me in Ghana and not my permant resident in Czech Republic. Mr Morgan should be consistent.
April 27, 2022 at 21:42
So – when you completed the DS260 did you give the address in the Czech Republic? Have they told you that you are current for interview processing? If so they won’t unlock your file or do anything else.