Business Immigration Monthly - October 2011

Date: 10/4/2011
 Business Immigration Monthly - October 2011

Green Card Visa Lottery From October 4th Through November 5th

The U.S. Department of State (DOS) recently released information regarding the Diversity Immigrant Visa Lottery Program (DV-2013) for fiscal year 2013 (October 1, 2012 through September 30, 2013). The Lottery Program for DV-2013 registration will only last 30 days. The DOS will make available 50,000 "green cards" annually to persons from countries with low rates of immigration to the United States. Similar to last year, the most significant change in the program for fiscal year 2013 is the DOS' notification of a participant's selection exclusively online. Beginning on May 1, 2012, applicants can check the status of their registration online via Entry Status Check at http://www.dvlottery.state.gov to check whether they were selected. Entry Status Check will also notify selected participants and provide them with instructions on the procedures for the application process and will confirm appointments for visa interviews. All entrants must check on the DOS website via the Entry Status Check whether they have been selected to participate in the Lottery. The Entry Status Check is the ONLY manner in which entrants will be notified of their selection. The DOS will NOT mail any correspondence to the selected applicants nor will it send out an email. Furthermore, the Entry Status Check will be the only way in which selected individuals will be provided further instructions on immigrant visa procedures.

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-2013 Lottery Program

For the DV-2013 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: Bangladesh, Brazil, Canada, China (Mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, 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. A list of the countries whose natives are qualified for the DV-2013 Visa Lottery Program is contained in Exhibit A below.

Unlike last year, natives of Poland and South Sudan are now eligible for the program. However, natives of Bangladesh are not eligible for this year's program.

Registration Procedures

The entries for the DV-2013 Lottery Program must be submitted electronically between noon (E.S.T.) Tuesday October 4, 2011 through noon (E.S.T.) Saturday November 5, 2011. 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 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-2013 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 registration period. 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.Attach the applicant's photograph according to the specifications described below;

8.Current mailing address;

9.Country where you live today;

10.Phone number (optional);

11.Email address;

12.Highest level of education completed;

13.Marriage status;

14.Number of children that are unmarried and under the age of 21 years of age. (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 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:

New Digital Image

1.The image must be in the Joint Photographic Experts Group (JPEG) format;

2.The image must be in color - 24 bits per pixel (black and white or 8-bit images will not be accepted);

3.The maximum image size accepted is 240 kilobytes (240KB);

4.The minimum dimensions accepted are 600 pixels (width) by 600 pixels (height) and the height must equal the width;

Scanning a Submitted Photograph

5.Scanner Resolution must be at least 300 dots per inch (dpi);

6.The image must be in the Joint Photographic Experts Group (JPEG) format;

7.The maximum image file size accepted is 240 kilobytes (240KB);

8.Image resolution must be 600 by 600 pixels;

9.The image must be in color - 24 bits per pixel (black and white or 8-bit images will not be accepted);

Additional Specifications

10.The applicant, spouse or child must be directly facing the camera;

11.The head of the person being photographed must directly face the camera and should not be tilted up, down or to the side;

12.The head should cover about 50% of the area of the photograph;

13.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);

14.Photographs in which the face of the person being photographed is not in focus will not be accepted;

15.Photographs in which the person being photographed is wearing sunglasses or other paraphernalia which detracts from the face will not be accepted; and

16.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. All entrants must check on the DOS website via the Entry Status Check whether they have been selected to participate in the Lottery on or after May 1, 2012. The Entry Status Check is the ONLY manner in which entrants will be notified of their selection. The DOS will NOT mail any correspondence to the selected applicants nor will it send out an email. 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-2013 Lottery Program will be issued between October 1, 2012 and September 30, 2013. However, because more individuals will be registered than there are immigrant visas available, a registered applicant who wishes to receive his/her immigrant visa must be prepared to act quickly after being notified, especially if he/she is assigned a favorable lottery number in the random selection process. The DOS emphasized that random selection in the lottery process does NOT guarantee that an applicant will receive a "green card."


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 COUNTRIES

ELIGIBLE FOR THE DV-2013 LOTTERY PROGRAM

Except as noted, the list below shows the countries qualified within each geographic region for the DV-2013 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

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


(Individuals born in the Gaza Strip are chargeable to Egypt)

Asia:


Afghanistan

Bahrain

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: Bangladesh, China (mainland-born), India, Pakistan, South Korea, Philippines and Vietnam. The Hong Kong S.A.R. and Taiwan do qualify and are listed above. Macau S.A.R. also qualifies and is listed below.

(Persons born in the areas administered by Israel, Jordan and Syria prior to June 1967 are chargeable, respectively, to Israel, Jordan and Syria.)

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

Kyrgyszstan

Latvia

Liechtenstein

Lithuania

Luxembourg

Macau S.A.R.

Macedonia

Malta

Moldova

Monaco

Montenegro

Netherlands*

Northern Ireland

Norway

Poland

Portugal*

Romania

Russia

San Marino

Serbia

Slovakia

Slovenia

Spain

Sweden

Switzerland

Tajikistan

Turkey

Turkmenistan

Ukraine

Uzbekistan

Vatican City


*Including components and areas overseas.

Natives of the following European country do not qualify for this year's Lottery Program: Great Britain (United Kingdom). Great Britain (United Kingdom) includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena and 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

Grenada

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.


DOS Releases October 2011 Visa Bulletin – Employment-Based Immigrant Visa Dates Continue to Advance but May Not Progress Significantly in the Near Future

The DOS recently released the October 2011 Visa Bulletin. Due to the fact that the government's fiscal year began on October 1, it was assumed that there would be little (or no) movement in the employment-based immigrant visa categories. However, the DOS did advance all of the employment-based immigrant visa categories in order to "generate sufficient demand" for the immigrant visas in the earlier part of this fiscal year. Due to the fact that it is advancing the categories, the DOS provided a prediction of visa availability in the coming months. In the EB-2 Indian and Chinese national categories, the DOS noted that the current cut-off date is approaching the most favorable date previously reached for these categories. The DOS stated that the rapid forward movement in the categories is intended to generate sufficient demand in the categories. However, the DOS warned that once the level of demands sufficiently increases, it may be necessary to slow or stop the cut-off date movement and retrogression of the cut-off date at some point during this fiscal year (October 1, 2011 through September 30, 2012), is a "distinct possibility." In the EB-3 immigrant visa categories, the DOS estimated that movement in the World category will be up to one month, movement in the Chinese national category will be one to three weeks; movement in the Indian national category will be up to two weeks; and movement in the Mexican and Filipino national categories will be up to one month.

The following is an overview of priority date movement since the inception of the current retrogression in October 2005:

Dec 2007

Jun 2008

Aug 2009

Mar 2010

Aug 2011

Sep 2011

Oct 2011

EB-3 World

09/01/02

03/01/06

U

12/15/02

11/01/05

11/22/05

12/08/05

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

04/15/07

04/15/07

07/15/07

EB-3 China

10/15/01

03/22/03

U

12/15/02

07/08/04

07/15/04

08/08/04

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

04/15/07

04/15/07

07/15/07

EB-3 India

05/01/01

11/01/01

U

07/01/01

06/01/02

07/08/02

07/15/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

05/01/05

08/01/05

09/15/05

Additional information about the priority date movement will be contained in our firm's future Immigration Updates when it becomes available.

H-1B Quota for Fiscal Year 2012 Remains Available

The U.S. Citizenship and Immigration Services (USCIS) recently provided an update about the Fiscal Year 2012 (October 1, 2011 through September 30, 2012) H-1B quota. Similar to past years, the regular H-1B quota is limited to 65,000 with an additional 20,000 available for individuals who have earned U.S. Master's or higher degrees. Employers are allowed to begin filing six months prior to the beginning fiscal year 2012 on October 1, 2011, namely on April 1st, 2011. The initial filing period for the Fiscal Year 2012 H-1B quota was from April 1, 2011 through April 7, 2011. During this time, the USCIS receipted approximately 5,900 petitions as indicated in our firm's Immigration Update dated April 11, 2011. This number of filings received by the USCIS during the initial filing period were significantly less than the filings received during the initial filing periods of previous H-1B quotas.

As of September 9, 2011, the USCIS provided an update on the number of filings that it has received against the quota. As of this date, the USCIS has received approximately 32,200 petitions filed against the regular H-1B quota with an additional approximately 16,700 petitions filed requesting the U.S. Masters or higher degree exemption from the quota. The USCIS is receiving approximately 1,200 petitions a week filed against the regular H-1B quota with an additional approximately 700 petitions filed requesting the U.S. Masters or higher degree exemption. The USCIS will continue to accept petitions until the regular H-1B quota and the U.S. Masters or higher degree exemption from the quota is met.

Additional information about the H-1B quota for fiscal year 2012 will be contained in our firm's future Immigration Updates when it becomes available.

DOL Again Modifies Requirements for the PERM Special Optional Recruitment Procedure for University Professors

As indicated in our firm's Immigration Update dated August 29, 2011, the U.S. Department of Labor (DOL) has now indicated that it will permit employers to use an electronic or web-based national professional journal instead of a print journal in the PERM special optional recruitment procedure. Last month, the DOL released restrictive guidance on when it will accept electronic or web-based national processional journals instead of a print journal. Subsequent to this release, the DOL has revised its guidance and has made the requirements less restrictive. Under the previous guidance, the DOL required employers to evidence during an audit that the electronic or web-based national professional journal was available to be viewed by the public without charge. In its revised guidance, the DOL deleted this requirement. However, employers will still have to evidence that the job opportunity was posted on the journal's website for at least 30 calendar days.

DOL Delays Implementing New Wage Methodology in the H-2B Program

As discussed in our firm's Immigration Update dated July 31, 2011, the DOL has revised how prevailing wages will be determined in the H-2B Program. Initially, the DOL was going to make the new wage methodology effective for both existing positions and new positions on October 1, 2011. However, a few days prior to the effective date, the DOL issued another rule delaying the effective date due to pending litigation. The DOL has now delayed the effective date of the new wage methodology to November 30, 2011.

DHS Implements a New Website to Streamline the International Student Visa Process

The U.S. Department of Homeland Security (DHS) recently announced a new initiative to streamline the international student visa process for international students seeking to study in the United States. The new initiative called "Study in the States" will examine regulatory changes, expand public engagement between the government and academia and provide a central on-line information hub for DHS and other governmental agencies to provide current and prospective students with updated and relevant visa requirements in a "streamline, user-friendly format." The Study in the States website (http://studyinthestatesidhs.gov) will:

  1. Employ a variety of social media tools, including interactive and accessible information to visually navigate steps in the student visa process on the students' own "Road Map to Success."
  2. Links to social media websites disseminating relevant visa requirements and information to international students, exchange visitors and the academic community.
  3. A blog with posted videos, public service announcements and other relevant news.

USCIS Begins to Send Approval Notices Directly to Employers and Applicants

On September 12, 2011, the USCIS began sending original Form I-797 receipt and approval notices directly to employers and applicants. Prior to this change, original receipt and approval notices were sent to the attorney of record or authorized representative (if applicable). The USCIS made this change without first consulting or announcing the change to the public. The USCIS recently stated that and realizes that this change does effect its stakeholders and did consider suspending the change. However, upon further review, the USCIS decided not change the policy and to continue implementing it. The USCIS also stated that as part of its transformation efforts, it will be issuing a final rule which will contain this policy change. Additional information about Part One of the Transformation process which will be rolled out later this year, will be contained in our firm's future Immigration Updates when it becomes available.

DOS Begins New Round of Compliance Reviews in the J-1 Program

The DOS has announced that it will be completing compliance reviews in the J-1 Summer Work Travel category. The DOS indicated that there are 51 designated J-1 sponsor entities in the Summer Work Travel category. The DOS has identified 14 sponsors that will be part of the upcoming compliance review. These 14 sponsors account for approximately 65% of all of the Summer Work Travel participants. The compliance reviews will be completed sometime between October and December 2011.

The DOS has previously conducted compliance reviews. In 2010, the DOS completed compliance reviews in the J-1 Secondary School Student Program. Earlier in 2011, the DOS conducted compliance reviews of the 21 largest J-1 sponsors of its academic and government programs which range from programs for professors, research scholars, short-term scholars, specialists and college/university students.

ICE Expands F-1 Special Student Relief to Libyan F-1 Students Enrolled in ESL Programs

Immigrant and Customs Enforcement (ICE) recently announced that it will be expanding Special Student Relief previously announced for F-1 Libyan students to those Libyan F-1 students enrolled in an ESL program. Information about the Special Student Relief for Libyan students is contained in our firm's Immigration Update dated June 27, 2011. ICE stated that Libyan F-1 students in an ESL program may take a reduced course load, as long as the student continues to make progress towards completing the course of study. Additionally, the student will be eligible for full-time employment authorization.