Copland and Brenner

Table of Contents

1. DOS Instructs on DV-2011
2. In Brief: Recent Developments

1. DOS Instructs on DV-2011

   On September 29, 2009 the Department of State (“DOS”) announced instructions for the Diversity Visa Lottery Program for 2011 (“DV-2011”). Under DV-2011, applications must be submitted electronically between noon (Eastern Daylight Time) on Friday, October 2, 2009 and noon (Eastern Standard Time) on Monday, November 30, 2009. 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 November 30, 2009. The DOS strongly encourages applicants to enter DV-2011 without the assistance of “visa consultants,” “visa agents,” or others who offer such services but subsequently take advantage of the applicant.

   DOS instructions for DV-2011 may be accessed online and downloaded at http://www.travel.state.gov/pdf/DV-2011instructions.pdf. It should be noted that the English language version of the DV-2011 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-2011 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.

   No country has been added to or removed from last year’s list of eligible countries. Therefore, based upon immigrant admissions to the U.S.A. during the past five years, natives of the following countries are excluded from DV-2011: 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.

   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) A successfully registered entry 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 at least 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-2011 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 (last or family name, first, middle), (2) date of birth (day, month, year), (3) gender, (4) city or town of birth, (5) country of birth, (6) country of eligibility or chargeability, (7) proper entry photograph(s) of the applicant and any family members, (8) complete mailing address (in care of, address line 1, address line 2, city/town, district/country/province/state, postal code/zip code, and country, (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-2011 photograph requirements, as described in the DOS instructions, are strict, as they were 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. A separate photograph must be provided of each person, to include any natural child as well as any legally-adopted child and stepchild, 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)

   As in the past, the DV-2011 instructions state that “[t]he computer will randomly select individuals from among all qualified entries. Those who are selected will be notified by regular mail – not email – between May and July 2010. 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 2011, which will run from October 1, 2010 through September 30, 2011.

   There is no fee charged to submit an entry to DV-2011. If selected, an applicant (as well as any derivative family members) will be required to pay applicable visa application fees directly to the DOS. Those eligible to adjust their status within the U.S.A. would make any required payments to the U.S. Department of Homeland Security (“DHS”).

   50,000 immigrant visas will be available under DV-2011. Since a total of about 100,000 entries will be selected in the random drawing, DV-2011 applicants must act promptly once notified of their selection so that they can pursue their cases to completion before September 30, 2011.

2. In Brief: Recent Developments

   USCIS Website Redesigned: On September 22, U.S. Citizenship and Immigration Services (“USCIS”) launched its redesigned web site at the url http://www.uscis.gov/portal/site/uscis. The agency’s press release bills the new site as “more customer-centric,” and “a major effort which fulfills President Obama’s pledge to offer enhanced navigation tools for the public to access immigration information and review case status.” Much of the information is also available en español. New features include a Where to Start tool for new users, an improved search engine, and simplified case tracking.

   As to case tracking, the earlier Case Status Online has been replaced by My Case Status, which is available to individual petitioners and applicants, as well as their representatives, once a receipt number has been issued. In addition, petitioners, applicants and their representatives can now choose to receive mobile alerts via text messaging by signing up for that option within My Case Status – or Estatus de mi caso.

   Lockbox Filings Allow Text Message Notification: On September 22, USCIS announced its new Form G-1145, which allows certain petitioners and applicants to request text message and/or email notification that their filing has been accepted for adjudication. According to a Fact Sheet issued that day, such E-notification will be issued within 24 hours of acceptance for filing, and will provide the USCIS receipt number for the relevant form. If multiple applications are submitted for one person, one completed Form G-1145 should be clipped “to the front of the first immigration form of the package,” and a separate email and/or text message will be sent for each form accepted for filing. Once E-notification is issued, the petitioner or applicant must sign up at My Case Status to receive further electronic notification regarding the progress of the case.

   The Fact Sheet points out that the service is a pilot program, and has limitations: it is available only for filings at one of the three agency lockboxes (Chicago, Phoenix, and Lewisville, Texas) and not those made at any of the USCIS Service Centers or Field Offices. The Fact Sheet specifically states that the service is not available for Form G-28, Notice of Entry of Appearance as Attorney or Representative. Accordingly, the one-page form can be submitted only so that a petitioner or applicant – not an attorney or other representative - receives this initial E-notification.

   Visa Security Program: By notice published in the Federal Register on September 30, U.S. Immigration and Customs Enforcement (“ICE”) proposed “to establish a new system of records titled, U.S. Immigration and Customs Enforcement DHS/ICE-012 Visa Security Program Records (VSPR). The purpose of the VSPR system is to manage, review, track, investigate, and document visa security reviews conducted by ICE agents pertaining to U.S. visa applicants and to document ICE visa recommendations to the U.S. State Department.”

   Records in the system may include “[b]iographic, employment, contact, and other types of information provided on the visa application, or by the applicant and others during interviews, such as name, address, phone number, e-mail address, date of birth, country of birth, nationality, passport number, information related to applicant’s intended travel to the United States, spouse’s name, names and relationships of individuals traveling with applicant, the application preparer’s name, and the name and address of the applicant point of contact.” A separate rulemaking on the same day proposes to exempt portions of the records from certain Privacy Act provisions because of criminal, civil and administrative enforcement requirements.

   H-1B Update: As of September 25, approximately 46,700 H-1B petitions cap-subject petitions, along with about 20,000 petitions qualifying for the advanced degree cap exemption, had been filed with USCIS. Accordingly, the agency will continue to accept H-1B petitions until statutory limits have been reached. Further details regarding the H-1B “cap count” are available at http://www.uscis.gov/h-1b_count.

   Did You Know That: An employer can verify the names and Social Security numbers of current employees against Social Security Administration (“SSA”) records? Details on the SSA program are available at http://www.ssa.gov/bso/bsowelcome.htm.