Copland and Brenner

Table of Contents

1. Internet Filing Only In Radical Change For DV-2005
2. New Forms Required October 1, 2003
3. AILA Reports Service Centers May Place Aliens In Removal Proceedings

1. Internet Filing Only In Radical Change For DV-2005

   On August 27, 2003, the Department of State published in the Federal Register instructions for the radically retooled Diversity Visa Lottery Program for 2005 (“DV-2005”). Under DV-2005, applications must be submitted electronically between Saturday, November 1, 2003 and Tuesday, December 30, 2003.  For the first time, paper entries will not be accepted. The Electronic Diversity Visa Entry Form (“EDV Entry Form”) for DV-2005 may be accessed at www.dvlottery.state.gov during the 60-day registration period. In the meantime, State Department instructions may be found on its web site at http://www.travel.state.gov/dv2005.html.

   The diversity visa lottery, mandated by the Immigration and Nationality Act, is intended to promote diversity among new immigrants by allowing natives of countries with low immigrant admissions during the previous five years to obtain permanent residence (the “Green Card”). To qualify, a country or other qualifying geographic entity must have sent a total of 50,000 or fewer immigrants to the U.S.A. in the previous five years. Natives of the following countries are excluded from DV-2005: Canada, China (Mainland only - Hong Kong SAR, Macau SAR and Taiwan are included in the program), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, Russia, South Korea, the United Kingdom (Great Britain and its dependent territories are excluded; however, Northern Ireland is included in the program), and Vietnam.

   Generally, eligibility requires that an applicant be a native of a qualifying country and that he/she holds certain education or training credentials. Nativity is usually determined by an individual’s place of birth. However, in certain cases nativity may also be established through a parent’s or a spouse’s country of birth using rules of cross-chargeability. In cases involving eligibility through cross-chargeability of a spouse, “both the applicant and the spouse [must be] issued visas and enter the U.S. simultaneously.”

   As to the education or experience component, applicants must have at least a high school education (or equivalent) or have two years of work experience within the past five years in an occupation that requires two years of training or experience. It is not required that an applicant document his/her education or experience at the time of submitting a DV-2005 entry. However, selected applicants must be able to document education and/or experience credentials in connection with any immigrant visa or adjustment of status processing. As in the past, the instructions for DV-2005 specify that, with regard to the work experience alternative, the “U.S. Department of Labor’s O*Net OnLine database will be used to determine qualifying work experience….If the applicant cannot meet these requirements, he or she should NOT submit an entry to the DV program.” (emphasis in original)  A link to the O*Net information may be found on the State Department’s web site at www.travel.state.gov.

   Failure to provide all the required information on the EDV Entry Form will disqualify the applicant. Required information includes: (1) full name of the applicant, (2) date and place of birth of the applicant, (3) applicant’s gender, (4) city or town of birth, (5) country of birth, (6) applicant’s photograph, (7) complete mailing address, (8) applicant’s country of eligibility if different from country of birth – and how nativity is claimed, (9) marital status, (10) number of children who are unmarried and under 21 years of age, (11) spouse information and (12) information for all children. Telephone number and email address are optional.

   All applications must include separate photographs of the applicant, his/her spouse, and each child under 21 years of age – including natural, legally adopted, and stepchildren. The only children excluded from this requirement are those who already hold lawful permanent resident status or U.S. citizenship. Group photographs will not be accepted. Since the EDV Entry Form will be electronically submitted, this means an applicant must attach either a new digital photograph or a digitally scanned photographic print. Each photograph must meet the following requirements:

   - JPEG (Joint Photographic Experts Group) format
   - color depth of 24-bit color, 8-bit color or 8-bit grayscale
   - resolution of 320 pixels wide by 240 pixels high
   - if a photograph is scanned, the frame must be 2 inches by 2 inches square, at a resolution of 150 dots per inch and with a color depth of 24-bit color, 8-bit color or 8-bit grayscale
   - the maximum size accepted will be 62,500 bytes
   - complete photograph specifications are available on the State Department’s web site at www.travel.state.gov and should be carefully adhered to by each applicant, as failure to meet all specifications will result in disqualification

   After receiving the special online application form, the State Department will send the applicant “an electronic confirmation notice.” Multiple entries by or for any applicant will be disqualified.

   Selected applicants “are subject to all grounds of ineligibility for immigrant visas specified in the Immigration and Nationality Act. There are no special provisions for the waiver of any ground of visa ineligibility other than those ordinarily provided in the Act.”

   The State Department advises that, “[i]f an entry is selected, the notification letter will be sent only to the mailing address provided on the entry,” between May and July 2004. (emphasis in original) Persons not selected will receive no notification. Those selected, as well as their spouses and/or unmarried children under 21 years of age, must be processed for the Green Card during Fiscal Year 2005, which will run from October 1, 2004 through September 30, 2005. 50,000 immigrant visas will be available under DV-2005. Since a total of about 100,000 entries will be selected in the random drawing, DV-2005 applicants must act promptly once notified of their selection so that they can pursue their cases to completion before September 30, 2005.

2. New Forms Required October 1, 2003

   We remind readers that, in June 2003 the Department of Homeland Security (“DHS”), Bureau of Citizenship and Immigration Services (“BCIS”) advised that certain forms have been updated and only the newest versions will be accepted for filing as of October 1, 2003. Applicants and petitioners can find form version information in the lower right hand corner of the instruction sheets and forms. The affected forms, as listed on the BCIS web site at http://www.immigration.gov/graphics/newforms.htm, are as follows:

   - I-102 (Application for Replacement/Initial Nonimmigrant Arrival/Departure Record; new version dated 4/4/03)
   - I-129S (Nonimmigrant Petition Based on Blanket L Petition; new version dated 4/23/03)
   - I-140 (Immigrant Petition for Alien Worker; new version dated 5/20/03)
   - I-526 (Immigrant Petition by Alien Entrepreneur; new version dated 5/9/03)
   - I-824 (Application for Action on an Approved Application or Petition; new version dated 4/4/03)
   - I-829 (Petition by Entrepreneur to Remove Conditions; new form dated 5/12/03)
   - N-336 (Request for Hearing on a Decision in Naturalization Proceedings Under Section 336 of the Act; new form dated 5/10/03)
   - N-470 (Application to Preserve Residence for Naturalization Purposes; new form dated 5/13/03)

   Each of the above forms is fillable online, but cannot be saved, and cannot be filed online. Version 5 of Adobe Acrobat Reader is required to make use of all the features of the fillable forms.

3. AILA Reports Service Centers May Place Aliens In Removal Proceedings

   By notice to its members on August 29, 2003, the American Immigration Lawyers Association (“AILA”) web site reported that it “has received a reliable report from a BCIS official that BCIS plans to have adjudicators at the Service Centers start issuing Notices to Appear, possibly as early as October 1, 2003.” (posted on AILA InfoNet at Doc. No. 03082942) This development, combined with change of address notification requirements for nearly all non-citizens, could spell disaster for aliens whose lawful status is in question.

   This turn of events was presaged in our July 2003 report on a June 13, 2003 final rule of the DHS, which expanded the authority to issue notices to appear (known as NTA’s).  The rule was deemed by DHS to involve mere reorganization and be so insignificant that no advance notice or public comment period was required before taking effect. We warned, however, that the rule significantly expands rather than simply reorganizes existing authority to issue NTA’s.

   It is unclear whether the June 13 rule effectively junks a July 26, 2002 proposed rule by the legacy Immigration and Naturalization Service seeking the addition of a “mandatory address notification” to agency forms.  That notification would constitute the alien’s acknowledgement that the agency would use “the most recent address provided by the alien for all purposes, including for purposes of removal proceedings [ ] should it ever be necessary to initiate proceedings.”

   Whether or not the proposed rule is ever resuscitated, we note that aliens – even lawful permanent residents – are required to notify the BCIS of any change of address within ten days. The statutory “registration” provision, Section 262 of the Immigration and Nationality Act, is the basis of the change of address notification requirement, to which there are few exceptions. By regulation at 8 CFR Section 265.1, changes of address must be reported to the BCIS on Form AR-11. Aliens subject to Special Registration must use Form AR-11SR. The forms and information about the notification requirement, including penalties for failure to comply, are available on the BCIS web site at www.immigration.gov.

   On its web site, the BCIS states that “All non-U.S. citizens (aliens) who are required to be registered are also required to keep the BCIS informed of their current address. This is particularly important when you have filed an application or petition for a benefit under the Immigration and Nationality Act and expect notification of a decision on that application. In addition, BCIS may need to contact you to provide other issued documents….” Those “issued documents” and “notification” may now include an NTA.

   The problem, of course, is that many aliens are unaware of the change of address notification requirements. Others may be become but fail to comply on a timely basis, or at all. Whatever the cause, failure to comply carries a very high price. Once an alien is issued an NTA, he or she is effectively in removal proceedings before the Executive Office for Immigration Review (“EOIR”). Once in removal proceedings, an alien must report any change of address within five days of the change to the appropriate EOIR entity. Aliens must use Form EOIR-33/IJ to report a change to the Immigration Court and Form EOIR-33/BIA to report a change to the Board of Immigration Appeals. Both forms may be found online at http://www.usdoj.gov/eoir/formslist.htm.

   Whatever the stage of an alien’s EOIR proceedings, any notice of hearing or filing deadline will be sent only to the address provided by the alien. Any alien who misses a scheduled hearing before the Immigration Court may be ordered removed from the U.S.A. in absentia. In addition, failure to appear at any hearing, when notice was served upon an alien or mailed to the address he or she provided, renders an alien ineligible for certain forms of relief including adjustment of status to permanent resident and voluntary departure.
    
   Given the potential consequences, it is more important than ever that aliens comply with all change of address requirements.