Copland and Brenner

Table of Contents

1. DOS Instructs on DV-2009
2. In Brief: Recent Developments

1. DOS Instructs on DV-2009

   The Department of State (“DOS”) has announced instructions for the Diversity Visa Lottery Program for 2009 (“DV-2009”). Under DV-2009, applications must be submitted electronically from noon (Eastern Daylight Time) on Wednesday, October 3, 2007 to noon (Eastern Standard Time) on Sunday, December 2, 2007. As has been the case since DV-2005, paper entries will not be accepted. Instead, the Electronic Diversity Visa Entry Form (“EDV Entry Form”) for DV-2009 must be accessed online during the registration period now under way, at www.dvlottery.state.gov. Official DOS instructions for DV-2009 are available online in portable document format (pdf) at http://www.travel.state.gov/pdf/2009DVInstructions.pdf. Applicants are strongly encouraged by the DOS not to wait until the last week of the registration period to enter, as heavy demand may cause website delays, and no entries will be accepted after noon EST on December 2, 2007.

   The diversity visa lottery, mandated by Section 203(c) of 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-2009: Brazil, Canada, China (Mainland only - Hong Kong SAR, Macau SAR and Taiwan are included in the program), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, Peru, 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. “All entries by an individual will be disqualified if more than ONE entry for that individual is received, regardless of who submitted the entry.” (emphasis in original) 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.

   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. 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-2009 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 you cannot meet these requirements, you should NOT submit an entry to the DV program .” (emphasis in original).

   Failure to complete the EDV Entry Form in its entirety will disqualify the applicant. Required information includes the applicant’s: (1) full name, (2) date of birth, (3) gender, (4) city or town of birth, (5) country of birth, (6) country of eligibility or chargeability, (7) proper photograph, (8) complete mailing address, (9) country of current residence, (10) telephone number (optional), (11) email address (optional), (12) highest level of education achieved “as of today,” (13) marital status, (14) number of children – must include the name, date and place of birth of applicant’s spouse and all children (natural, legally adopted and stepchildren) who are unmarried and under the age of 21 except those who are U.S. citizens or lawful permanent residents, (15) spouse information (name, date of birth, gender, city/town of birth, country of birth, photograph), and (16) children information for all those declared under Item #14 above (name, date of birth, gender, city/town of birth, country of birth, photograph).

   The application form is in two parts; one for the applicant and one for any dependents. If an applicant is selected and failed to list spouse or all eligible children, the applicant will be disqualified and visas for the applicant and all family members will be refused at the time of visa interview.

   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 eligible family members. Group photographs will not be accepted; there must be a separate photograph of each family member. The photograph requirements, like other lottery requirements, are strict, and failure to comply will result in disqualification.

   Those selected will be notified by mail between May and July 2008. Persons not selected will receive no notification. Those selected, as well as their spouses and/or eligible children, must complete all processing (visa processing and U.S. entry or, alternatively, adjustment of status within the U.S.A.) during Fiscal Year 2009, which will run from October 1, 2008 through September 30, 2009.

   50,000 immigrant visas will be available under DV-2009. Since a total of about 100,000 entries will be selected in the random drawing, DV-2009 applicants must act promptly once notified of their selection so that they can pursue their cases to completion before September 30, 2009.

2. In Brief: Recent Developments

   Brouhaha over NYS license policy: As we reported last month, a June 7, 2007 decision by New York State’s highest court, the Court of Appeals, agreed with a Department of Motor Vehicles (“DMV”) policy that an applicant for a driver license or state ID must include his or her Social Security number (“SSN”) or proof of ineligibility for a number from the Social Security Administration (“SSA”). As a result of the ruling, an applicant would have to provide not only a letter of ineligibility from the SSA, but also the underlying documents from the DHS which establish ineligibility for an SSN. However, an SSA letter of ineligibility is available only to those with currently valid DHS documents, essentially meaning legal immigration status. Since the reality is that many (estimates are up to one million) resident NYS drivers do not have valid DHS documents, the difficulty with the ruling is that there is a sizeable population requiring a driver license, but ineligible to receive one.

   Enter the Spitzer Administration. On September 21, Governor Eliot Spitzer and the DMV Commissioner issued a release announcing “an administrative policy change that will give all New Yorkers the opportunity to apply for state driver licenses without regard to immigration status.” The release, which may be read in its entirety at http://www.ny.gov/governor/press/0921071.html, states that the “DMV estimates that tens of thousands of undocumented, unlicensed and uninsured drivers are currently on New York’s roads, contributing to increased accidents and hit-and-runs as well as higher auto insurance rates. In addition, bringing more New Yorkers into the system will ensure a greater number of people have a license record that, if necessary, can be used to enhance law enforcement efforts.”

   The Commissioner noted that the change would allow the DMV to focus on its mission, which is “to ensure that every person driving on our roads is fit to drive and can prove his or her identity. Currently, too many drivers are unlicensed and uninsured simply because they do not have a social security number. Rather than bury our heads in the sand and pretend the problem does not exist, today we are choosing to confront it and in doing so greatly improve the safety of our roads.” In commenting, Governor Spitzer voiced his support “for making this commonsense change that deals practically with the reality that hundreds of thousands of undocumented immigrants live among us and that allowing them the opportunity to obtain driver licenses in a responsible and secure manner will help increase public safety.”

   The policy change is to take effect in two phases. Phase one, to begin immediately, involves informational letters to be mailed to about 152,000 New Yorkers unable to renew a license under the previous policy. “Those affected will still need to prove their identity, date of birth and fitness to drive before being issued a new license.” The second phase, to begin about six or eight months later, “will open the application process to all New Yorkers.” A featured link on the DMV web site to “the new driver license application process for drivers who do not have Social Security Numbers” is at http://www.nydmv.state.ny.us/licensure.htm, and may be accessed from the DMV home page at http://www.nydmv.state.ny.us/.

   Not to be outdone, NYS Republican legislators have been outspoken in their criticism of the policy change. Various charges by state Republicans, as reported in the Albany Times Union , suggest that the policy change panders to illegal aliens who might then (unlawfully) register to vote, paves the way for terrorists to obtain licenses, will be welcomed by Osama bin Laden, and will lead to another attack along the lines of the one on September 11, 2001. Some of the state’s 52 county clerks have threatened to boycott the new policy, and legislative and court challenges should be expected.

   Anticipated challenges notwithstanding, the policy change improves security and law enforcement objectives by requiring enhanced measures to verify actual identity before issuing a state license or ID. The wisdom of the Spitzer Administration's policy change regarding DMV requirements is as stated by the agency's Commissioner: the DMV role is to ensure fitness to drive and identity. The DMV is not, and should not become, a de facto enforcer of U.S. immigration laws. That task is up to federal authorities properly charged with applicable responsibilities.

   No go on "no-match?" Last month, we reported on a final rule by U.S. Immigration and Customs Enforcement ("ICE"), published in the Federal Register on August 15, 2007. The rule sought to establish employer obligations, as well as a "safe harbor" for avoiding penalties, in so-called "no match" situations when an employer has received notice, usually from the Social Security Administration, that an employee's name and Social Security number do not match. The rule, which was to be effective September 14, 2007, was the subject of a federal judge's nationwide temporary restraining order pending an October 1 hearing.

   As reported by The New York Times the following day, there was more bad news for ICE at that October 1 hearing. A different judge, sitting with the same federal court in San Francisco, extended the temporary restraining. "'It is clear to me at this point there would be irreparable harm to the plaintiffs,' Judge Breyer commented at the end of the hearing, rejecting the government's main argument. 'It just seems to me looking at it that this is a potentially enormous burden on the employer,' the judge said, adding that he would issue a ruling within 10 days." If Judge Breyer issues an injunction, the rule cannot be implemented unless a higher court overrules his decision, or the government wins at trial.

   H-2B cap reached for first half of FY2008: In a USCIS update issued on October 1, the agency announced that it had "received a sufficient number of petitions to reach the congressionally mandated H-1B cap for the first half of Fiscal Year 2008," and that "September 27, 2007 is the 'final receipt date' for new H-2B worker petitions requesting employment start dates prior to April 1, 2008." Due to the volume of filings, a random selection process will determine the lucky 33,000 H-2B workers for the first half of FY2008, which began on October 1. Since Congress has not reauthorized or extended the provisions that would exempt "returning workers" (those counted toward the H-2B numerical limit during the three prior years) from the cap, the agency must count all petitions requesting H-2B workers for new employment with an employment start date of October 1, 2007 or later toward the FY2008 H-2B cap.