Business Immigration Monthly - October 2012

Date: 10/5/2012
 Business Immigration Monthly - October 2012

Countries Ineligible to Participate in DV-2014 Lottery Program

For the DV-2014 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, 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-2014 Visa Lottery Program is contained in Exhibit A below.

NOTE: Unlike last year, natives of Guatemala are now eligible for the program.

Registration Procedures

The entries for the DV-2014 Lottery Program must be submitted electronically between noon (E.S.T.) Tuesday, October 2, 2012 through noon (E.S.T.) Saturday, November 2, 2012. 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-2014 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, 2013. 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-2014 Lottery Program will be issued between October 1, 2013 and September 30, 2014. 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-2014 LOTTERY PROGRAM

Except as noted, the list below shows the countries qualified within each geographic region for the DV-2014 Diversity Immigrant Visa Lottery Program.

Africa:


Algeria

Ghana

Sierra Leone

Angola

Guinea

Somalia

Benin

Guinea-Bissau

South Africa

Botswana

Kenya

South Sudan

Burkina Faso

Lesotho

Sudan

Burundi

Liberia

Swaziland

Cameroon

Libya

Tanzania

Cape Verde

Madagascar

Togo

Central African Republic

Malawi

Tunisia

Chad

Mali

Uganda

Comoros

Mauritania

Zambia

Congo

Mauritius

Zimbabwe

Congo, Democratic Republic of

Morocco

Cote D'Ivoire (Ivory Coast)

Mozambique

Djibouti

Namibia

Egypt

Niger

Equatorial Guinea

Nigeria

Eritrea

Rwanda

Ethiopia

Sao Tome and Principe

Gabon

Senegal

Gambia, The

Seychelles

Note: Individuals born in the Gaza Strip are chargeable to Egypt; Individuals born in the West Bank are chargeable to Jordan; Individuals born in the Golan Heights are chargeable to Syria)

Asia:


Afghanistan

Lebanon

United Arab Emirates

Bahrain

Malaysia

Yemen

Bhutan

Maldives

Brunei

Mongolia

Burma

Nepal

Cambodia

North Korea

Hong Kong Special Admin. Region

Oman

Indonesia

Qatar

Iran

Saudi Arabia

Iraq

Singapore

Israel

Sri Lanka

Japan

Syria

Jordan

Taiwan

Kuwait

Thailand

Laos

Timor-Leste


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

Ireland

Russia

Andorra

Italy

San Marino

Armenia

Kazakhstan

Serbia

Austria

Kosovo

Slovakia

Azerbaijan

Kyrgyszstan

Slovenia

Belarus

Latvia

Spain

Belgium

Liechtenstein

Sweden

Bosnia and Herzegovina

Lithuania

Switzerland

Bulgaria

Luxembourg

Tajikistan

Croatia

Macau S.A.R.

Turkey

Cyprus

Macedonia

Turkmenistan

Czech Republic

Malta

Ukraine

Denmark*

Moldova

Uzbekistan

Estonia

Monaco

Vatican City

Finland

Montenegro

France*

Netherlands*

Georgia

Northern Ireland

Germany

Norway

Greece

Poland

Hungary

Portugal*

Iceland

Romania


*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, Canadian and Mexican natives do not qualify for this year's Lottery Program.

Oceania

Australia*

Micronesia, Federated States of

Samoa

Fiji

Nauru

Solomon Islands

Kiribati

New Zealand*

Tonga

Marshall Islands

Palau

Tuvalu

Papua New Guinea

Vanuatu


*Including components and dependent areas overseas.

South America, Central America, and the Caribbean


Antigua and Barbuda

Dominica

Saint Kitts and Nevis

Argentina

Grenada

Saint Lucia

Barbados

Guatemala

Saint Vincent and the Grenadines

Belize

Guyana

Suriname

Bolivia

Honduras

Trinidad and Tobago

Chile

Nicaragua

Uruguay

Costa Rica

Panama

Venezuela

Cuba

Paraguay


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, Haiti, Jamaica, Mexico and Peru.

DOS Releases October 2012 Visa Bulletin – Priority Date Movement In Many Employment-Based Immigrant Visa Categories Disappointing

The U.S. Department of State (DOS) recently released its October 2012 Visa Bulletin. Many were disappointed by the priority dates in this Visa Bulletin due to the fact that they expected the employment-based immigrant visa categories to advance more significantly as the government commences its new fiscal year. In the past few Visa Bulletins, the EB-2 Indian and Chinese national preference categories were Unavailable. Prior to the categories becoming Unavailable, they reached to the priority date of May 2010. Therefore, it was assumed when new employment-based immigrant visa numbers became available in October, the DOS would establish a priority datecutoff near the last cutoff before the categories became Unavailable. However, the DOS has established the priority date of September 2004 for the EB-2 Indian national preference category and July 2007 for the EB-2 Chinese national category. Due to increased demand in the other employment-based immigrant visa categories, it now remains unseen as to how many months (if not years) it will take before the EB-2 Indian and Chinese national categories again approach the cutoff of May 2010. Additionally, the DOS did not make the EB-2 World category in Current again. However, it is anticipated that the DOS will make this category in Current again, maybe as early as next month.

The following is the comparison of the movement in the employment-based immigrant visa categories since the inception of Current retrogression in October 2005:

Dec 2007

Jun 2008

Aug 2009

Mar 2010

Aug 2012

Sept 2012

Oct 2012

EB-3 World

09/01/02

03/01/06

U

12/15/02

09/08/06

10/01/06

10/22/06

EB-2 China

01/01/03

04/01/04

10/01/03

07/08/05

U

U

07/15/07

EB-3 China

10/15/01

03/22/03

U

12/15/02

11/08/05

12/15/05

02/08/06

EB-2 India

01/01/02

04/01/04

10/01/03

02/01/05

U

U

09/01/04

EB-3 India

05/01/01

11/01/01

U

07/01/01

10/01/02

10/08/02

10/15/02

EB-3 Other Workers

10/01/01

01/01/03

U

06/01/01

09/08/06

10/01/06

10/22/06

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

ICE SEVP Provides Update About the Current Recertification Process

Immigration Custom Enforcement's (ICE) Student Exchange Visitor Program (SEVP) recently provided an update about the current recertification process for institutions authorized to admit F-1 and M-1 students. Of the approximately 10,000 institutions approved to admit F-1 and M-1 students, approximately 3,400 have filed a complete recertification package. Of those 3,400 institutions, approximately 2,218 have been recertified. The current recertification adjudication process takes approximately 150 days, if a Request for Information (RFI) is not issued. Because SEVP has recently hired additional adjudicators, it is assumed that this processing time will decrease in the future. SEVP stated that it plans to send approximately 450 recertification notices a month and that the goal of SEVP is to have all schools receive their first recertification notice by July 2013. No institution has yet been denied recertification. However, SEVP began the recertification process by recertifying accredited schools or institutions. However, the denial rate may increase as SEVP begins the recertification process for non-accredited institutions.

GAO Analyzes ICE SEVP Program and Operations and Recommends Areas of Improvement Within the Program

The U.S. Government Accountability Office (GAO) recently completed a review of the ICE SEVP program. This review was completed at the request of some Senators after SEVP withdrew the authorization of Tri-Valley State University to participate in the SEVIS program. The following are some highlights from the Report:

·SEVP's fiscal year 2012 budget is $120 Million. As of December 2011, the program includes an authorized staff of 151 full-time government employees and approximately 600 full- and part-time contractors. The SEVP program currently has 7 branches, namely School Certification, Response, Policies Analysis and Operations Center, Field Representative Program, Mission, Support, and Information Technology.

·In 2011, ICE's Counterterrorism and Criminal Exploitation Unit (CTCEU) began tracking data on school fraud using increased resources funded with SEVP's fee collections. In September 2011, CTCEU created its SEVIS Exploitation Unit, which analyzes SEVIS data to identify potential fraudulent activity among schools.

·The GAO stated that ICE faces some of the following challenges in identifying and assessing risks posed by institutions: (1) it does not evaluate program data on prior and suspected instances of school fraud and non-compliance; and (2) it does not obtain and assess information from CTCEU and ICE field offices during and after school investigations and outreach events.

·As of March 2012, ICE reported that it had withdrawn 860 SEVP certified school from the program since 2003 for various reasons, including compliance issues, voluntary withdrawals and school closures. ICE reported that it has withdrawn at least 88 of these schools since 2003 for non-compliance issues, such as a failure to report a change in ownership.

·SEVP has maintained a compliance case log since 2005. As of December 2011, the compliance case log consists of a list of approximately 172 institutions that SEVP officials have determined to be potentially non-compliant with program requirements. Of the 172 institutions, about 83% offer language, religious or flight studies, with language schools representing the highest proportion.

·From October 2011 through March 2012, CTCEU has conducted 314 outreach visits to schools as part of its Campus Sentinel outreach. As of March 2012, CTCEU initiated 2 criminal investigations based on information obtained as part of the Campus Sentinel outreach.

·The GAO report stated that SEVP was required to recertify all SEVP-certified school (as well as DOS's J-1) by May 2004 and every 2 years thereafter. However, the report states that SEVP began the first recertification cycle in May 2010. This recertification cycle should have ended in May 2012. However, SEVP reported that as of March 2012, only approximately 19% of the SEVP-certified schools have been recertified.

·SEVP stated to the GAO that it plans on deploying SEVIS II in November 2014.

U.S. Consulates in India Implement New Visa Application System

The U.S. Consulates in India recently implemented a new Visa application processing system to simplify the fee payment and appointment scheduling process. Beginning September 26, 2012, Visa applicants are able to pay application fees via Electronic Fund Transfer (EFT), with their mobile phones, or in cash at more than 1,800 in Axis bank branches. For the first time, applicants are able to schedule their appointments on online at www.ustraveldocs.com/in or by phone. Visa applicants will also be able to have their questions answered via telephone, e-mail or online chat. Under the new system, applicants will have to make 2 appointments. Prior to their Visa interviews, applicants will have to visit an Offsite Facility Center (OFC) to have their fingerprints and
photos taken. The posts introduced the OFC to reduce congestion at the consulates and to "speed applicant processing." However, most applicants will only visit an OFC once because the DOS retains the biometric data. The DOS stated that in 2011, the posts in India had experienced an 11% increase in the number of applicants over the previous year. However, the DOS stated that applicants wait fewer than 10 days for visa appointment and spend less than one hour at the consulate post for their interviews.

DHS Expands the Visa Waiver Program to Include Taiwan

The U.S. Department of Homeland Security (DHS) recently announced that it was expanding the Visa Waiver Program (VWP) to include Taiwan. In accordance with the VWP designation process, DHS determined that Taiwan complies with key security and information-sharing requirements. Therefore, DHS decided to allow Taiwan to join the 36 other participants in the VWP. The VWP permits Visa-free travel to the United States for eligible travelers visiting the United States for 90 days or less for business or tourism. All VWP travelers are required to apply for authorization to use the VWP through the Electronic System for Traveler Authorization (ESTA). Eligible Taiwan passport holders with an approved ESTA will be able to visit the United States through the VWP beginning on November 1, 2012. In fiscal year 2011, more than 60% of the tourist and business travelers entering the United States by air used the VWP.

USCIS Announces a New Filing Option for Canadian TN Nonimmigrants

The USCIS recently announced that beginning on October 1, 2012, its Service Centers will begin to accept Form I-129 Petitions for a TN Nonimmigrant workers filed on behalf of Canadian citizens who are outside the United States seeking admission as a TN Nonimmigrant. Previously, the USCIS only accepted Forms I-129 in connection with a request to extend a TN Nonimmigrant's stay or to change a Nonimmigrant's stay to TN classification. With this new Program, employers will have the option to either sign potential Canadian workers who are eligible for TN status apply for admission or to apply through a USCIS Service Center for preapproval of TN status prior to the worker applying for admission to the United States. Please note that this is only available for Canadian nationals and not Mexican nationals.

ICE SEVP Releases FAQs Regarding the Implementation of the Accreditation of English Language Training Programs Act

ICE's SEVP recently released Frequently Asked Questions (FAQs) regarding the implementation of the Accreditation of English Language Training Program Act (Accreditation Act). This Accreditation Act requires English Language Training Programs admitting F-1 nonimmigrant students to be accredited by a regional or national accrediting agency recognized by the U.S. Department of Education (DOE). SEVP indicated that it will notify schools if it is believed that they need to evidence compliance with the Accreditation Act. Schools that fail to respond to SEVP's request may be determined to be not in compliance with SEVP requirements and thus withdrawn from the SEVIS program. Additionally, schools that were required to at least commence the accreditation process by December 14, 2011 but have failed to do so may also be withdrawn from the SEVIS program. SEVP stated that the Accreditation Act does not allow it to grant extensions to schools that failed to submit an English language training program of study accreditation application to an appropriate agency by December 14, 2011. Additionally, schools that applied for accreditation by December 14, 2011 must receive the accreditation by December 14, 2013.

Additional information about SEVP's implementation of the Accreditation Act will be contained on our Firm's future Immigration Updates when it becomes available.

$145,000 in Forfeitures and Two Year Probation Sentence for St. Louis Landscaping Business and Owner Convicted of Employing Illegal Aliens and Visa Fraud

In June 2012, Robert Brake, along with his company, Brake Landscaping & Lawncare Inc., pled guilty to misdemeanor charges of employing illegal aliens and one felony count of conspiracy to commit visa fraud. As a result of the convictions, on September 14, 2012, Robert Brake and his business were sentenced to two years of probation and the company was required to pay $145,000 in forfeitures. The sentences came after an investigation by the U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI), and the U.S. Department of Labor's Office of Inspector General, which revealed that between March 2007 and February 2010, Robert Brake and his company illegally sub-contracted H-2B workers to others for a profit of more than $2 per hour per alien. Robert Brake created Brake Snow and Ice Removal to illegally employ the workers year-round by making it appear that seasonal workers were needed year round. The scheme artificially created a need for workers that didn't actually exist.

Complaint Issued Against Hyatt by NLRB for Commencing E-Verify Program Without Union Bargaining

The National Labor Relations Board (NLRB) issued an unfair labor practices complaint against the Grand Hyatt Union Square and Hyatt Regency Embarcadero in San Francisco for implementing E-Verify without negotiating with the union that represents the hotels' employees. The NLRB is alleging that implementing E-Verify is a mandatory subject of bargaining. Last April, both hotels implemented E-Verify, the federal government's electronic employment eligibility verification program, without notifying the local union, UNITE HERE, or giving the union an opportunity to collectively bargain about the program enrollment. The NLRB's complaint alleges that E-Verify relates to wages, hours, and other terms and conditions of employment and is a mandatory subject of bargaining. The NLRB is alleging that by refusing to bargain in good faith over the use of E-Verify, the hotels have violated Sections 8(a)(1) and (5) of the National Labor Relations Act. The NLRB ultimately wants the hotels to terminate its enrollment with the E-Verify program, and make the hotels reinstate and make whole for lost wages and benefits any employees who were terminated while contesting a tentative nonconfirmation or who were not given an opportunity to contest such a finding. An NLRB administrative law judge will conduct a hearing on October 31, 2012 regarding the charges in the complaint.

Program Extensions: EB-5, E-VERIFY, Religious Workers and Conrad State 30 J-1 Visa Waivers

The U.S. Senate and House of Representatives have passed legislation to extend the EB-5 Regional Center program, E-Verify, Religious Workers Classification and the Conrad State 30 J-1 Visa Waiver program to September 30, 2015. The bill was enacted into law on September 28, 2012.

MFEM NEWS

MFEM Recognized for Having the Most Leading Immigration Attorneys in Illinois According to the Leading Lawyers Network

MFEM was again recognized by the Leading Lawyers Network for having the most leading Immigration Attorneys in the state of Illinois. Similar to previous years, the Leading Lawyers Network acknowledged Ms. Kathleen Gaber, Mr. Dayne Kono, Mr. Bryan Funai, and Mr. Bob White from MFEM Immigration Practice Group for their work in the immigration field. No other law firm in the state of Illinois had four Immigration Attorneys recognized by the Leading Lawyers Network. This recognition by the Leading Lawyers Network confirms the Firm's commitment to providing excellent immigration services to its clients and to the business community as a whole.