Business Immigration Monthly - November 2009

Date: 10/23/2009
 Business Immigration Monthly for the Month of November 2009

DOS Announces FY 2011 DV "Green Card" Visa Lottery Procedures: Registration Period From October 2, 2009 Through November 30, 2009

 The U.S. Department of State (DOS) recently released information regarding the Diversity Immigrant Visa Lottery Program (DV-2011) for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). The DOS will make available 50,000 "green cards annually to persons from countries with low rates of immigration to the United States. The annual DV Lottery Program makes "green cards" available to foreign nationals meeting certain eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing, The Diversity Visa "green cards", however, are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration and with no visas going to citizens of countries sending more than 50,000 immigrants to the United States in the past five years. Within each region, no country may receive more than 7% of the available Diversity Visa "green cards" in any one year.

Countries Ineligible to Participate in DV-2011 Lottery Program

For the DV-2011 Lottery Program, natives of the following countries are not eligible to apply because they are the principal source countries of Family-Sponsored and Employment-Based immigration, or "high admission" countries: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (which includes Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcaim, St. Helena, Turks and Caicos Islands, but not Northern Ireland), and Vietnam. Foreign nationals born in Hong Kong SAR, Macau SAR and Taiwan are eligible for the Diversity Visa Lottery. (Please note that Russia and Kosovo were added to the list of countries qualified for the 2011 DV program) A list of the countries whose natives are qualified for the DV-2011 Visa Lottery Program is contained in Exhibit A below.

Registration Procedures

The entries for the DV-2011 Lottery Program must be submitted electronically between noon (E.S.T.) October 2, 2009 through noon (E.S.T.) November 30, 2009. The DOS will not accept mail-in entries. Instead, the DOS will only accept entries made on an electronic diversity entry form which will be available at www.dvlottery.state.gov during the 60-day registration period. Please note that the law allows only one entry by or for each person during each registration period. Receipt of more than one entry per person will disqualify the person from registration, regardless of the source of the entry. The procedures for submitting an entry in the DV-2011 Lottery Program are as follows:

Entry Form Contents. The DOS will only accept completed Electronic Diversity Visa Entry Forms submitted electronically at www.dvlottery.state.gov during the 60-day registration period beginning October 2, 2009. All entries by an applicant will be disqualified if more than one entry for the applicant is received, regardless of who submitted the entry. The entry form will ask the applicant to submit the following information:

  1. Full name.
  2. Date of birth.
  3. Gender.
  4. City/town of birth.
  5. Country of birth.
  6. Country of eligibility or chargeability.
  7. Attaching the applicant's photograph according to the previously described specifications described below.
  8. Current mailing address.
  9. Country where you live today.
  10. Phone number (optional).
  11. Email address (optional).
  12. Highest level of education completed.
  13. Marital status.
  14. Number of children that are unmarried and under the age of 21 years of age, including legally-adopted children and stepchildren. (Failure to list all children, who are eligible, will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview.).
  15. Spouse's information, including name, date of birth, gender, city/town of birth, country of birth and spouse's photograph that meets the previously described specifications. (Failure to list your spouse will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview.).
  16. Each child's information including name, date of birth, gender, city/town of birth, country of birth and photograph that meets the previously described specifications. The DOS emphasizes that failure to list all children will result in the disqualification of the entry form.
  17. No signature required. The signature requirement on the entry form has been eliminated due to the new electronic entry form.

Photograph Requirements. The entry will be disqualified if photographs are not submitted of the applicant, his/her spouse and each child under the age of 21 (including all natural children as well as legally-adopted and stepchildren, except a child who is already a U.S. citizen or lawful permanent resident) even if the child no longer resides with the applicant and does not intend to immigrate under the DV-2011 Lottery Program. The photographs must be submitted electronically with the entry form. Group or family photos will not be accepted. There must be a separate photo for each family member. Each applicant, his/her spouse and each child will therefore need a computer file containing his/her digital photograph which will be submitted on-line with the entry form. The image file can be produced either by taking a new digital photograph or by scanning a photographic print with a digital scanner. The submitted digital images must conform to the following specifications:

  1. The image must be in the Joint Photographic Experts Group (JPEG) format.
  2. The image must be color (black and white, and monochrome images will not be accepted).
  3. If a new digital photograph is taken, it must have a resolution of at least 600 pixels high by 600 pixels wide and a color depth of 24-bit color.
  4. If a photographic print is scanned, the print must be 2" x 2" square, must be scanned at a resolution of at least 150 dots per inch, must have image resolution of 300 by 300 pixels, and with a color depth of 24-bit color.
  5. The maximum image size accepted will be 240 kilobytes.
  6. The applicant, spouse or child must be directly facing the camera.
  7. The head of the person being photographed must directly face the camera and should not be tilted up, down or to the side.
  8. The head should cover about 50% of the area of the photograph.
  9. The photograph should be taken with the person being photographed in front of a neutral, light-colored background (photographs taken with a very dark or patterned background will not be accepted).
  10. Photographs in which the face of the person being photographed is not in focus will not be accepted.
  11. Photographs in which the person being photographed is wearing sunglasses or other paraphernalia which detracts from the face will not be accepted, and
  12. Photographs of applicants wearing head coverings or hats are only acceptable due to religious beliefs and still may not obscure any portion of the face of the applicant.

DOS Processing of Entries

After an applicant submits his/her entry, the DOS will send him/her an electronic confirmation notice of receipt of a completed entry form. Applicants will be selected at random by computer from among qualified entries. Those selected will be notified by mail between April and July 2010 to the address indicated on the entry and will be provided further instructions, including information on fees connected with immigrating to the United States. Applicants not selected will not receive any notification. The DOS normally notifies approximately 100,000 applicants that they have been selected through the DV Lottery Program. However, only 50,000 "green cards" are available annually. The green cards based upon the DV-2011 Lottery Program may be issued between October 1, 2010 and September 30, 2011. However, because more individuals will be registered than there are immigrant visas available, a registered applicant who wishes to receive his immigrant visa must be prepared to act quickly after being notified.

Education or Work Experience Required

In order to qualify for a "green card" through the Diversity Visa Lottery Program, each applicant must have at least a high school education or its equivalent or, within the past five years, have two years of work experience in an occupation requiring at least two years of training. A high school education or its equivalent is defined as successful completion of a 12-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to a high school education in the United States. Evidence of educational work experience should not be submitted with the lottery entry but must be submitted to the consular official or U.S. Citizenship and Immigration Services (USCIS) officer at the time of the visa or adjustment of status interview. In order to determine eligibility based on work experience, definitions from the Department of Labor's (DOL) O*Net On-Line database will be used.

DOS Does Not Charge to Enter the DV Lottery Program

The DOS indicated that there is no charge to enter the annual DV Lottery Program. The DOS emphasized that it does not employ outside consultants or private services to operate the program. It stated that a qualified entry submitted electronically directly by the applicant has an equal chance of being selected by the computer at the DOS Kentucky Consular Center as does an entry submitted electronically through a paid intermediary who completes the entry for the applicant. However, the DOS warned that if an applicant or a paid intermediary submits more than one entry per person, the person will be disqualified from the program. A special DV Lottery Case processing fee will be payable later by persons who "win" the lottery and are processed for a "green card" based upon the lottery program.

EXHIBIT A

REGIONAL CLASSIFICATION OF COUNTRIESELIGIBLE FOR THE DV-2011 LOTTERY PROGRAM

Except as noted, the list below shows the countries qualified within each geographic region for the DV-2011 Diversity Immigrant Visa Lottery Program.

Africa

Algeria
Angola
Benin
Botswana
Burkina Faso
Burundi
Cameroon
Cape Verde
Central African Republic
Chad
Comoros
Congo
Congo, Democratic Republic of the
Cote D'Ivoire (Ivory Coast)
Djibouti
Egypt
Equatorial Guinea
Eritrea
Ethiopia
Gabon
Gambia, The
Ghana
Guinea
Guinea-Bissau
Kenya
Lesotho
Liberia
Libya
Madagascar
Malawi
Mali
Mauritania
Mauritius
Morocco
Mozambique
Namibia
Niger
Nigeria
Rwanda
Sao Tome and Principe
Senegal
Seychelles
Sierra Leone
Somalia
South Africa
Sudan
Swaziland
Tanzania
Togo
Tunisia
Uganda
Zambia
Zimbabwe

Asia:

Afghanistan
Bahrain
Bangladesh
Bhutan
Brunei
Burma
Cambodia
East Timor
Hong Kong Special Administrative Region
Indonesia
Iran
Iraq
Israel
Japan
Jordan
Kuwait
Laos
Lebanon
Malaysia
Maldives
Mongolia
Nepal
North Korea
Oman
Qatar
Saudi Arabia
Singapore
Sri Lanka
Syria
Taiwan
Thailand
United Arab Emirates
Yemen

Natives of the following Asian countries do not qualify for this year's Lottery Program: China (mainland-born), India, Pakistan, South Korea, Philippines and Vietnam. Hong Kong S.A.R. and Taiwan do qualify and are listed above. Macau S.A.R. also qualifies and is listed below.

Europe

Albania
Andorra
Armenia
Austria
Azerbaijan
Belarus
Belgium
Bosnia and Herzegovina
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Georgia
Germany
Greece
Hungary
Iceland
Ireland
Italy
Kazakhstan
Kosovo
Kyrgyzstan
Latvia
Liechtenstein
Lithuania
Luxembourg
Macau S.A.R.
Macedonia,
the Former Yugoslav Republic
Malta
Moldova
Monaco
Montenegro
Netherlands
Northern Ireland
Norway
Portugal
Romania
Russia
San Marino
Serbia
Slovakia
Slovenia
Spain
Sweden
Switzerland
Tajikistan
Turkey
Turkmenistan
Ukraine
Uzbekistan
Vatican City

Natives of the following European countries do not qualify for this year's Lottery Program: Great Britain and Poland. Great Britain (United Kingdom) includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, Turks and Caicos Islands. Note that for purposes of the Lottery Program only, Northern Ireland is treated separately; Northern Ireland does qualify and is listed among the qualifying areas.

North America

The Bahamas.

In North America, natives of Canada and Mexico do not qualify for this year's Lottery Program.

Oceania

Australia*
Fiji
Kiribati
Marshall Islands
Micronesia, Federated States of
Nauru
New Zealand*
Palau
Papua New Guinea
Samoa
Solomon Islands
Tonga
Tuvalu
Vanuatu
*(including components and dependent areas overseas)

South America, Central America, and the Caribbean

Antigua and Barbuda
Argentina
Barbados
Belize
Bolivia
Chile
Costa Rica
Cuba
Dominica
Ecuador
Grenada
Guatemala
Guyana
Honduras
Nicaragua
Panama
Paraguay
Saint Kitts and Nevis
Saint Lucia
Saint Vincent and the Grenadines
Suriname
Trinidad and Tobago
Uruguay
Venezuela

Natives of the following South America, Central America and Caribbean countries do not qualify for this year's Lottery Program: Brazil, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Jamaica, Mexico and Peru.

Update to SEVIS System

Immigration and Customs Enforcement's (ICE) Student Exchange and Visitor Program (SEVP) recently announced that it will be releasing another system update to the current SEVIS system. SEVP indicated that SEVIS Release 6.1 is scheduled for release on October 30, 2009. The Release will only modify the Real Time Interactive (RTI) module and not the batch schema. SEVP indicated that the Release will contain the following changes:

1. After the new Release, SEVIS will contain a system time out. After 20 minutes of inactivity a SEVIS session will expire.

2. After the system is updated, SEVIS will allow DSOs and ROs to review the event history of students and exchange visitors and their dependents that are enrolled (or were previously associated with) the school/program.

3. After the update, the system will send an inactivity user email after a specific user has not logged into SEVIS in the previous 75 days. The SEVIS system will send an email to all assigned users at the school/program to which the user is associated and will notify all these users that the inactive user status will be changed to inactive in 15 days. A DSO whose account is deactivated after not logging in for 90 days will be required to have his/her PDSO request a password reset in order for the DSO to regain access to SEVIS. A similar functionality will apply for ROs whose status has become inactive.

Additional information about SEVIS updates (including the migration to SEVIS II in 2010) will be contained in our firm's future Immigration Updates when it becomes available.

DOS Releases November 2009 Visa Bulletin – No Movement in Most Employment-Based Immigrant Visa Categories

The DOS recently released its November 2009 Visa Bulletin. Similar to last month's Visa Bulletin, the November 2009 Visa Bulletin does not advance most of the employment-based immigrant visa categories. This is surprising because normally the categories significantly advance at the beginning of the government's fiscal year which commenced on October 1st. The DOS stated that the U.S. Citizenship and Immigration Services' (USCIS) previous predictions about future demand from its offices for employment-based immigrant visas have not been accurate. Instead, the DOS stated that demand from USCIS has "far exceeded" the USCIS' earlier predictions. Therefore, the DOS stated that it was necessary to "hold" most of the employment-based immigrant visa cut-off dates. Additionally, the DOS stated that it is not possible to provide any estimates about when the categories will again move in the future.

The following is a chart of the movement of the employment-based immigrant visa priority dates since the beginning of retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

Aug 2009

Sept 2009

Oct 2009

Nov 2009

EB-3 World

03/01/01

09/01/02

03/01/06

U

U

06/01/02

06/01/02

EB-2 China

05/01/00

01/01/03

04/01/04

10/01/03

01/08/05

03/22/05

04/01/05

EB-3 China

05/01/00

10/15/01

03/22/03

U

U

02/22/02

06/01/02

EB-2 India

11/01/99

01/01/02

04/01/04

10/01/03

01/08/05

01/22/05

01/22/05

EB-3 India

01/01/98

05/01/01

11/01/01

U

U

04/15/01

04/22/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

U

U

C

06/01/01

Additional information about the movement of the employment-based immigrant visas will be contained in our firm's future Immigration Updates when it becomes available.

DOS Indicates Sharp Increase in the Number of Applicants in Next Fiscal Year's DV "Green Card" Lottery which Commenced on October 2, 2009

The DOS recently provided an update about the Fiscal Year 2011 (FY2011) DV "Green Card" Visa Lottery. The DV Visa Lottery for the next fiscal year (FY2011) commenced on October 2, 2009 and will continue to November 30, 2009. The government makes available 50,000 immigrant visas (green card) annually through the DV Lottery Program. Additional detailed information about the DV-2011 Visa Lottery is available on our firm's website at http://www.masudafunai.com/showarticle.aspx?show=5349.

In previous years, the DOS did not provide an update about the number of applicants in the lottery until after the lottery ended. Although the DOS has previously not provided interim information about the number of applicants during the registration period, the DOS has provided this information for the next fiscal year's Visa Lottery due to a "significant increase" in the number of applicants. The DOS stated that in the first week of the registration period for next fiscal year's lottery, applicants from around the world submitted more than 900,000 entries which represents a 63% increase over the same period last year. If this rate of applications continues, the DOS stated that it anticipates that it will receive more than 13 million entries during the entire registration period. The DOS stated that it received approximately 9 million entries during the lottery for this fiscal year which was conducted last year.

Additional information about the FY2011 DV Lottery Program will be contained in our firm's future Immigration Updates when it becomes available.

DHS Rescinds No-Match Regulations

On October 7, 2009, the U.S. Department of Homeland Security (DHS) published a regulation rescinding its "no-match" regulation, promulgated on August 15, 2007. No-match letters are sent to employers by the Social Security Administration (SSA) informing employers that an employee's Social Security Number (SSN) does not match the SSA's records. The rule, which was to take effect on September 14, 2007, was immediately challenged in Federal Court. A U.S. District Court judge issued a temporary restraining order enjoining the government from implementing the final rule. Subsequently, on October 23, 2008, the DHS issued a supplemental final rule which instructed employers to take specific steps to resolve the "no-match" discrepancy within a certain period of time to benefit from the safe harbor protection the rule offered. After years of litigation challenging the constitutionality of the rule, the new regulation rescinding the rule finally puts this matter to rest.

In the final regulations rescinding the previous regulations, the DHS sated that: "After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs."

While the no-match regulation has been rescinded, the DHS cautioned that employers who receive no-match letters, must take reasonable steps to check its records, follow up with the affected employee and give the employee sufficient time to resolve the discrepancy. The DHS also stated that the receipt of a no-match letter "when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of 'constructive knowledge'" by an employer. Consequently, employers must continue to resolve any SSN discrepancies in a reasonable manner otherwise they may face potential civil and/or criminal liability.

Temporary Agency Owner and Assistant for Harboring Undocumented Aliens and Providing Unauthorized Access to O'Hare International Airport

On October 7, 2009, Mary Gurin, the owner of Ideal Staffing, a Bensenville temporary employment agency, and her assistant, Norinye Benitez, were sentenced in federal court for harboring illegal aliens for financial gain and assisting them to obtain unauthorized access to secure areas at O'Hare International Airport, including the tarmac. Ms. Gurin, who pleaded guilty on May 11, 2009, was sentenced to 36 months in federal prison. Ms. Benitez pleaded guilty on December 12, 2008 and received 12 months and one day of imprisonment. The government stated that between February 2006 and November 2007, Ms. Gurin knowingly employed at least 54 undocumented workers and helped them obtain airport security badges by fraud. Ms. Gurin falsified information on their security badge application forms which allowed the workers to enter secure areas while loading pallets, freight and meals for companies doing business at O'Hare, including some commercial airlines. Ms. Gurin also distributed airport security badges issued in other names to undocumented workers, which bypassed the appropriate security screening process and allowed access to secure areas. The undocumented workers are from Mexico, Guatemala and El Salvador and all face state felony charges for possessing fraudulent identification in the form of an airport security badge. The Immigration and Customs Enforcement (ICE) has recovered 34 fraudulent airport badges.

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com. Weekly Immigration Updates are provided under the Legal Update link of the Immigration Group Section of our firm's website at www.masudafunai.com.