Copland and Brenner

Table of Contents

1. H-1B Cap Reached on First Day of FY2005
2. Federal Funding Bills Delayed
3. Internet Filing Again for DV-2006
4. EOIR Amends Photograph Standards Effective October 4, 2004
5. More Limits on SSNs for F-1 students

1. H-1B Cap Reached on First Day of FY2005

   On October 1, 2004, after U.S. Citizenship and Immigration Services (“USCIS”) offices had closed for the day, the agency issued a press release stating that “it has received enough H-1B petitions to meet this year’s congressionally-mandated cap for fiscal year 2005.” October 1, of course, was the first day of the federal government’s FY2005 – making this the first time that the annual H-1B cap has been reached upon commencement of the new fiscal year. In its release, the agency also stated the following:

   - it had factored into its count all set-asides for Chile and Singapore that were unused during FY2004, and any other cases that could be counted against the FY 2004 cap (see below)
   - it would process all petitions filed for first-time employment received by the end of business on October 1
   - it would return all petitions for first- time employment subject to the annual cap and not received by the end of business on October 1
   - returned petitions would be accompanied by the filing fee
   - petitioners may resubmit their petitions when H-1B visas become available for fiscal year 2006
   - since H-1B visas will become available for FY2006 on October 1, 2005 and H-1B petitions may be filed six months in advance of the proposed start date, an H-1B petition for new employment may not be filed until April 1, 2005
   - additional details regarding procedures are to be provided in a Federal Register notice

   In its release, USCIS noted that there are certain exemptions that apply even to new petitions. Therefore, petitions filed under the following circumstances will be adjudicated:

   - if it will extend the amount of time a current H-1B worker will remain in the U.S.A., for the same or a different employer
   - if it will change the existing terms of employment for a current H-1B worker
   - if it would allow a current H-1B worker to work concurrently in a second H-1B position

   In addition, the release notes that certain petitions for new H-1B workers are exempt from the annual cap in any case. Such cases include those in which the sponsored alien:

   - will be employed at an institution of higher education or a related or affiliated nonprofit entity
   - will be employed by a nonprofit research organization or a governmental research organization

   The release notes that, from the 65,000 annual worldwide cap, a total of 1,400 H-1B visas are available for Chile and 5,400 for Singapore. These “sub-quotas” were established by Public Laws 108-77 and 108-78, signed into law on September 3, 2003, and which established Free Trade Agreements with Chile and Singapore. This left 58,200 H-1B visas for all other countries subject to the worldwide cap. The language of the press release states that the agency “will not accept any new H-1B petitions that are subject to the FY 2005 annual cap” (emphasis added). This suggests that not only the worldwide cap, but also the country-specific caps for Chile and Singapore, have been reached for FY2005.

   Lest frustrations be erroneously directed to USCIS, we remind readers that the agency must act in accordance with the laws created by Congress. It is Congress that established annual H-1B limits and otherwise amends the Immigration and Nationality Act. It is only Congress, therefore, that can increase or eliminate the annual H-1B cap.

2. Federal Funding Bills Delayed

   As to Congress, The New York Times reported on September 30 that our elected representatives have failed to pass the appropriations (federal spending) bills on time to fund federal government operations for FY2005. Only one appropriations bill, for the Department of Defense, was passed before October 1. Therefore, the Times reports, “the House and Senate adopted a stopgap measure on [September 29] to keep federal agencies running through Nov. 20.” This measure effectively removes any pressures Congress (or the White House) might have felt to deliver on certain promises before the elections scheduled for November 2.

   The article notes further that “The spending measures are filled with politically sensitive issues and provisions that have attracted threats of a presidential veto….Republican aides said that the goal would be to have staff members assemble a measure merging most of the spending bills for lawmakers to approve in mid-November.” There are hopes of passing some spending bills, including the one for the Department of Homeland Security, by the end of the first full week of October.

   Given the federal elections scheduled for November 2, opinion polls reflecting a close Presidential race, and a host of contentiously debated issues to be decided before any appropriations bills are settled, we may be in for a bumpy ride.
   

3. Internet Filing Again for DV-2006

   On September 29, 2004 the Department of State (“DOS”) announced instructions for the Diversity Visa Lottery Program for 2065 (“DV-2006”). Under DV-2006, applications must be submitted electronically between Friday, November 5, 2004 and Friday, January 7, 2005. As was the case last year, paper entries will not be accepted. The Electronic Diversity Visa Entry Form (“EDV Entry Form”) for DV-2006 may be accessed and submitted electronically at www.dvlottery.state.gov during the registration period. In the meantime, State Department instructions for DV-2006 may be found on its web site at http://travel.state.gov/visa/immigrants_types_diversity3.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-2006: 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 holds certain education or training credentials . Nativity is usually determined by an individual’s place of birth. However, in some cases nativity may be established through a parent’s or a spouse’s country of birth using rules of cross-chargeability.

   Only one entry may be submitted by, or on behalf of, any one person. Multiple entries by or for any applicant will be disqualified, “regardless of the source of the entry.” (emphasis added)

   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-2006 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-2006 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 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 (natural, legally adopted and stepchildren). Telephone number and email address are optional.

   All applications must include separate recent photographs of the applicant, his/her spouse, and all children under 21 years of age. 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. The photograph requirements, like the other diversity lottery requirements, are strict and failure to comply will result in disqualification. Photo specifications are available at http://travel.state.gov/visa/immigrants_types_diversity3.html. “Successfully registered entries will result in the display of a confirmation screen” which may be printed out by the applicant for his or her records.

   Those selected will be notified by mail between May and July 2005. Persons not selected will receive no notification. Selected applicants “must meet ALL eligibility requirements under U.S. law.” Those selected, as well as their spouses and/or unmarried children under 21 years of age, must complete all processing (visa processing and U.S. entry or, alternatively, adjustment of status within the U.S.A.) during Fiscal Year 2006, which will run from October 1, 2005 through September 30, 2006.

   50,000 immigrant visas will be available under DV-2006. Since a total of about 100,000 entries will be selected in the random drawing, DV-2006 applicants must act promptly once notified of their selection so that they can pursue their cases to completion before September 30, 2006.
   

4. EOIR Amends Photograph Standards Effective October 4, 2004

   As we reported in August, USCIS changed its photograph standards for all immigration benefits applicants to comport with the passport-style photos required by the Department of State. Now, the Executive Office for Immigration Review (“EOIR,” better known as the Immigration Court system) shares the new standards. Effective October 4, 2004, the Immigration Court will accept only full color, frontal passport-style photographs. Filings prior to October 4, 2004 will not be affected by the change.

   The USCIS announcement is viewable at http://uscis.gov/graphics/publicaffairs/newsrels/04_08_02Photo_flyer.pdf. The DOS provides a wealth of information regarding photo requirements on its web site, at http://travel.state.gov/passport/pptphotos/index.html.

5. More Limits on SSNs for F-1 studentsOn September 13, 2004, the Social Security Administration published a final rule in the Federal Register further limiting issuance of Social Security numbers (“SSNs”) to F-1 students. F-1 students, like other SSN applicants, must now provide proof of work authorization to obtain an SSN. The goal of the new rule, effective immediately, is to decrease the potential for fraud in a climate of heightened concern involving national security and identity theft. The 11-page rule may be found on the Federal Register site at http://www.access.gpo.gov/su_docs/fedreg/frcont04.html, by clicking on September 13, 2004.