Copland and Brenner

Table of Contents

1. DOS Instructs on DV-2010
2. In Brief: Recent Developments

1. DOS Instructs on DV-2010

   The Department of State (“DOS”) has announced instructions for the Diversity Visa Lottery Program for 2010 (“DV-2010”). Under DV-2010, applications must be submitted electronically between noon (Eastern Daylight Time) on Thursday, October 2, 2008 and noon (Eastern Standard Time) on Monday, December 1, 2008. 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 1, 2008.

   DOS instructions for DV-2010 are online at http://www.travel.state.gov/pdf/T1026V-DV-2010bulletin(3).pdf. It should be noted that the English language version of the DV-2010 instructions is the only official version of the instructions. Paper entries will not be accepted. Instead, the Electronic Diversity Visa Entry Form (“E-DV”) for DV-2010 must be accessed online at www.dvlottery.state.gov and submitted during the registration period.

   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.

   Based upon immigrant admissions to the U.S.A. during the past five years, natives of the following countries are excluded from DV-2010: 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, South Korea, the United Kingdom (Great Britain and its dependent territories are excluded; however, Northern Ireland is included in the program), and Vietnam. We note that Russia has returned to the list of eligible countries and is included in the program for 2010. Kosovo has also been added to the list of eligible countries for DV-2010.

   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 containing the entrant’s name and a unique confirmation number, 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-2010 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 either of these requirements, you should NOT submit an entry to the DV program.” (emphasis in original).

   Failure to complete the E-DV 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(s) of the applicant and any family members, (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 on the date of E-DV submission, 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). 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.

   DV-2010 photograph requirements, as described in the DOS instructions, are strict and have changed since last year. Failure to comply with current instructions will result in disqualification. Since the E-DV must be electronically submitted, an applicant must attach either a new digital color photograph, or a digitally scanned photographic print, for him- or herself, spouse, and each unmarried child under 21 years of age at the time of electronic entry – to include all natural children as well as legally-adopted children and stepchildren, even if a child no longer resides with the applicant or the applicant does not intend for a child to immigrate under the DV program.

   The instructions state that “[y]ou do not need to submit a photo for a child who is already a U.S. citizen or a Legal Permanent Resident. Group or family photographs will not be accepted; there must be a separate photograph for each family member. Failure to submit the required photographs for your spouse and each child listed will result in an incomplete entry to the E-DV system. The entry will not be accepted and must be resubmitted. Failure to enter the correct photograph of each individual in the case into the E-DV system will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview. ” (emphasis in original)

   The DV-2010 instructions state that, “for the first time, those who submit entries may check the status of entries online and determine whether their entries are selected or not selected.” This feature is to be available from July 1, 2009 until June 30, 2010. Successful entrants will continue to receive notification letters by mail. Those selected will be notified by mail between May and July 2009. 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 2010, which will run from October 1, 2009 through September 30, 2010.

   50,000 immigrant visas will be available under DV-2010. Since a total of about 100,000 entries will be selected in the random drawing, DV-2010 applicants must act promptly once notified of their selection so that they can pursue their cases to completion before September 30, 2010.

2. In Brief: Recent Developments

   N-400, application for naturalization: By notice published in the Federal Register on September 12, 2008, U.S. Citizenship and Immigration Services (“USCIS”) announced that it is revising its direct mail program to include certain filings of Form N-400. Beginning October 14, 2008, most naturalization applicants must submit Form N-400 to one of two new lockbox facilities for initial processing. Depending upon the applicant’s state of residence, the lockbox location will be in either Phoenix, AZ or Lewisville, TX.

   It should be noted that the new rule does not affect naturalization applicants filing under the military provisions, section 328 or 329 of the Immigration and Nationality Act; they should continue to file their applications at the Nebraska Service Center regardless of geographic location or jurisdiction. However, under the new rule, spouses of active members of the Armed Forces will likewise be required to file with the Nebraska Service Center effective October 14.

   These developments mark the second phase of changes to procedures in place since 1998. The first phase began in June 2008, without any change in practice by applicants, when Forms N-400 filed at one of four Service Centers were transferred to the National Benefits Center in Lee’s Summit, Missouri for initial processing.

   A September 15 Update on the USCIS web site states that the instructions to Form N-400 have been updated to reflect the new filing procedures. This is true as to the instructions online at the agency’s web site, but not as to the print instructions that accompany the most recent incarnation of the form, which bear the legend “Form N-400 Instructions (Rev. 10/15/07) Y” in the lower right hand corner. The same Update states that the form instructions have been updated to require two passport-style photographs of the applicant, along with a copy of the permanent resident card for applicants who are lawful permanent residents. These requirements, however, do not appear on the printed form instructions or at the initial link to the N-400 on the USCIS web site. Instead, they may be found under “Related Links” at one titled “Document Checklist for Form N-400, Application for Naturalization.”

   It should be noted that the National Benefits Center does not accept any directly filed N-400; all filings must go through the appropriate Service Center through October 13, and to the appropriate lockbox beginning October 14. For the first 30 days after the rule takes effect on October 14, USCIS “will forward any improperly addressed Form N-400s covered by this notice to the proper lockbox address,” and they “will be considered properly filed when receipted at the Lockbox.” However, “[a]fter this 30-day transition period, any Form N-400 covered by this notice that is received at a location other than the appropriate lockbox address will be returned” to the applicant.

   Political and economic tumult leads to continuing appropriations bill: It is often around late September or early October that Congress acts on appropriations bills for the new federal fiscal year, which begins every October 1. On September 30, 2008, President Bush signed into law H.R. 2638, the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009. The law includes full-year appropriations for the Department of Defense, Department of Homeland Security, and Military Construction and Veterans Affairs, and otherwise funds the federal government through March 6, 2009.

   In a statement after signing the bill into law, President Bush expressed his disappointment that Congress had passed a long-term continuing resolution. What he failed to note is that, by signing the bill into law, he is complicit in removing any pressures the White House or Congress might have felt to make or deliver on any promises or positions before the elections scheduled for November 4.

   Temporary Protected Status Extended: On October 1, USCIS published three notices in the Federal Register , extending temporary protected status for nationals of El Salvador, Honduras and Nicaragua. The designations for Honduras and Nicaragua are extended through July 5, 2010, and the designation for El Salvador is extended through September 9, 2010. In each case, the extension is due to “substantial, but temporary, disruption of living conditions” resulting from natural disasters - earthquakes in the case of El Salvador and hurricanes for both Honduras and Nicaragua. In each case, applicants currently registered under TPS and who desire an extension must reregister by filing both Forms I-821 (Application for Temporary Protected Status) and I-765 (Application for Employment Authorization) during the applicable 60-day reregistration period.

   Reminder to our U.S. Citizen Readers: November 4, 2008 is election day. Prepare by familiarizing yourself with candidate positions, and exercise your right to vote.