Copland and Brenner

Table of Contents

1. DOS Instructs on DV-2007
2. H-1B Update: Advanced Degree Visas Still Available for FY2006
3. USCIS Fees to Increase October 26
4. USCBP Requires U.S. Address Information for Travelers

1. DOS Instructs on DV-2007

   On September 2, 2005 the Department of State (“DOS”) announced instructions for the Diversity Visa Lottery Program for 2007 (“DV-2007”). Under DV-2007, applications must be submitted electronically from noon (Eastern Standard Time) on October 5, 2005 to noon on December 4, 2005. As in the prior two years, paper entries will not be accepted. Instead, the DOS advises that its Electronic Diversity Visa Entry Form (“EDV Entry Form”) for DV-2007 must be accessed during the registration period at www.dvlottery.state.gov . DOS instructions for DV-2007 may be found at http://travel.state.gov/visa/immigrants/types/types_1318.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-2007: 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, Poland, 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 hold 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 disqualify the person from registration, 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-2007 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-2007 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 for the applicant are optional.

   Information regarding a spouse and any children must include name, date of birth, gender, city/town of birth, country of birth and photograph . Group photographs will not be accepted. The only children excluded from the above requirements are those who already hold lawful permanent resident status or U.S. citizenship. If an applicant is selected and subsequently includes any eligible dependent on his or her visa application forms who was not included on the original entry, the applicant will be disqualified.

   Since the EDV Entry Form must be electronically submitted, an applicant must attach either a new digital photograph, or a digitally scanned photographic print, for him- or herself and any included family members. The photograph requirements, like the other diversity lottery requirements, are strict, and failure to comply will result in disqualification. Photo specifications are available on the DOS web site at http://travel.state.gov/visa/immigrants/types/types_1318.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 2006. Persons not selected will receive no notification. Selected applicants “must meet ALL eligibility requirements under U.S. law.” (emphasis in original) 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 2007, which will run from October 1, 2006 through September 30, 2007.

   We note that the DOS notice this year was initially a bit sloppy in its instruction updates from last year. For example, in the DOS online instructions available on October 4, the agency referred to an “entry period that will begin on noon EST Friday, October 5, 2005 and will through [sic] noon EST Sunday, December 5, 2005.” However, October 5 falls on a Wednesday , and the registration period ends on December 4. Also, the notification period initially referred erroneously to 2007 rather than 2006. Those errors were corrected by October 5.

   50,000 immigrant visas will be available under DV-2007. Since a total of about 100,000 entries will be selected in the random drawing, DV-2007 applicants must act promptly once notified of their selection so that they can pursue their cases to completion before September 30, 2007.
   

2. H-1B Update: Advanced Degree Visas Still Available for FY2006Readers may recall that for FY2006, the worldwide cap for initial H-1B visas was set at 58,200. An exemption to that cap was established for up to 20,000 alien beneficiaries holding a U.S.-earned master’s or higher degree. U.S. Citizenship and Immigration Services (“USCIS”) indicates on its web site that, as of September 19, 2005, there were a total of 7,099 approved H-1B cases under that so-called “advanced degree exemption,” with 5,340 cases pending. Those numbers add up to a total of 12,439 cases against the advanced degree cap of 20,000. If all the pending cases are approvable, that would mean 7,561 advanced degree H-1B visas were still available as of September 19.
3. USCIS Fees to Increase October 26

   By notice published in the Federal Register on September 26, filing fees for most petitions and applications are about to increase. The new fees will apply to affected petitions and applications filed on or after October 26, 2005. Among the affected, most commonly used, forms are the following:

   - I-90 Application to Replace Permanent Resident Card - $190 (+$5)
   - I-102 Application for Replacement/Initial Nonimmigrant Arrival/Departure Record -$160 (+$5)
   - I-129F Petition for Alien Fiance(e) - $170 (+$5)
   - I-129 Petition for a Nonimmigrant Worker - $190 (+$5)
   - I-130 Petition for Alien Relative - $190 (+$5)
   - I-131 Application for Travel Document - $170 (+$5)
   - I-140 Immigrant Petition for Alien Worker - $195 (+$5)
   - I-212 Application for Permission to Reapply for Admission into the U.S. - $265 (+$15)
   - I-360 Petition for Amerasian, Widow(er), or Special Immigrant - $190 (+$5)
   - I-485 Application to Register Permanent Residence or to Adjust Status (14 years of age and older) - $325 (+$10)
   - I-485 Application to Register Permanent Residence or to Adjust Status (under 14 years of age) - $225 (+$15)
   - I-539 Application to Extend/Change Nonimmigrant Status - $200 (+$5)
   - I-600/600A Petition to Classify Orphan as an Immediate Relative/ Application for Advance Processing of Orphan Petition - $545 (+$20)
   - I-601 Application for Waiver of Grounds of Excludability - $265 (+$15)
   - I-612 Application for Waiver of the Foreign Residence Requirement - $265 (+$15)
   - I-751 Petition to Remove the Conditions on Residence - $205 (+$5)
   - I-765 Application for Employment Authorization - $180 (+$5)
   - I-817 Application for Family Unity Benefits - $200 (+$5)
   - I-824 Application for Action on an Approved Application or Petition- $200 (+$5)
   - N-400 Application for Naturalization - $330 (+$10)
   - N-600 Application for Certification of Citizenship - $255 (+$15)
   - FINGERPRINTS Capturing Biometric Information - $70 (no change)

   Prior to September 26 notice, the most recent fee increase took effect on April 30, 2004. As the new rule notes, the Immigration and Nationality Act “provides for the collection of fees at a level that will ensure recovery of the full costs of providing adjudication and naturalization services, including the costs of providing similar services without charge to asylum applicants and other immigrants,” and “may recover administrative costs as well.” Those affected by USCIS filing fees should expect them to “be adjusted annually…by publication of an inflation adjustment” to be published in the Federal Register .
   

4. USCBP Requires U.S. Address Information for Travelers

   On October 4, U.S. Customs and Border Protection began implementing a new requirement for commercial carriers to include the address where foreign visitors will stay while in the U.S.A. The requirement, mandated by the Advance Passenger Information System (“APIS”), now requires such address data in addition to that already captured by passenger manifests.

   According to the USCBP web site:

   - APIS is an automated system capable of performing database queries on passengers and crewmembers prior to their arrival in or departure from the United States.
   - Existing legislation requires all commercial inbound and outbound air and sea carriers to electronically transmit APIS data on all passengers and crewmembers to CBP.
   - Air carriers must electronically transmit their passenger data within 15 minutes of a flight's departure. Crewmember data must be submitted prior to the flight's departure.
   - APIS data is checked against the combined federal law enforcement database, known as the Interagency Border Inspection System (IBIS). IBIS includes data from the databases of CBP and 21 other federal agencies. Names are also checked against the FBI National Crime Information Center wanted persons database.

   Under the new rule, address information will be added to the following: full name, gender, date of birth, citizenship, passport number and country of issuance for each passenger and crew member, plus U.S. visa travel document number or resident alien card number, as applicable. The travel itinerary, foreign airport where travel to the U.S.A. began, and U.S. airport where customs and immigration processing will take place are also required. In accordance with USCBP regulations at 19 CFR 122.49a, this information “may be shared with other Federal agencies for the purpose of protecting national security.”