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A QUARTERLY UPDATE ON IMMIGRATION LAW FROM Meyner and Landis LLP The recent horrific events in New York and Washington, D.C. have impacted all of America. Some members of our staff witnessed the second plane crash into the World Trade Center from our offices on the 25th floor of One Gateway Center in Newark. We are sure each of us knows someone who was directly affected by the tragedy. Many Americans may, in the heat of the moment, condemn all immigrants with a broad brush instead of those individuals, whether American or of another country, responsible for such inhuman acts. This is not justified. We must remember the many patriotic immigrants who fought and died for America in many wars. We, at Meyner and Landis, urge everyone not to forget that fact as we strive to preserve the freedoms that we have earned and will continue to cherish. PREMIUM PROCESSING PROGRAM A SUCCESS The premium processing program for nonimmigrant petitions, which began on June 1st, has so far been a resounding success. This office, for example, received an L-1 (new office application) petition approval in two (2) days and an O-1 (person of extraordinary ability) petition approval in one day. The program initially included E-1, E-2, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, and Q-1 nonimmigrant classifications. On July 30th, the program was expanded to include H-1B's (temporary workers), TN's (Treaty NAFTA workers) and R's (religious workers). The program is presently accepting such requests simultaneously with or following filing of the case. The premium processing form I-907 and $1000.00 fee can be filed by the petitioner (employer), the beneficiary, or the attorney of either. A special post office box is designated for premium processing applications at each Service Center. INS RANDOMLY VISITS H-1B EMPLOYERS Pursuant to a General Accounting Office-directed audit, the USCIS is randomly visiting employers and asking questions about their H-1B employees. The questioning appears to be fairly general, as such as whether the person actually works there and what he or she does for the company. Any employer receiving such a visit, should immediately contact his or her immigration attorney. SOME GUIDANCE NOW EXISTS ON AC21 FROM USCIS AND DOS In the absence of regulations implementing the American Competitiveness in the 21st Century Act (AC21), attorneys have been relying on discussions with USCIS officials and on guidance memoranda and cables from USCIS and State Department to discern how the agencies plan to treat the statute's provisions. In a March 2001 liaison meeting between AILA and USCIS Immigration Services Division, both sides agreed that it is clear that Congress was trying through AC21 to meet the needs of U.S. employers and H-1B employees. USCIS acknowledged that the process must result in speed in moving from one employer to another, and indicated that the issues causing the greatest internal agency debate focus on what Congress intended with regard to maintenance of status and what is meant by "status authorized by the Attorney General" in the AC21 §105 portability. William Yates of USCIS indicated that some at USCIS are troubled by interpretations that would allow a person who once held H-1B status for a brief period, but who had been out of status for several years, to be eligible to move to a new employer using the portability provision of AC21. Eligibility of Portability INS's guidance memorandum issued on June 19, 2001, reflected this debate. In the section discussing §105 portability, USCIS restated the statutory language indicating that, to be eligible for the provisions allowing nonimmigrants who previously held H-1B status to begin working for a new employer upon filing of the petition, the nonimmigrant must have lawfully admitted, had a nonfrivolous petition filed before the end of his or her authorized stay, and not have engaged in unauthorized employment since admission until the filing of the petition. The memorandum notes the contexts in which the issue of whether portability has been properly used could come to INS's attention, and indicated that no benefit should be denied, or Notice to Appear issued, on this basis without first checking with Headquarters. The memorandum left unresolved, for now, the question of whether an individual who previously held H-1B status, but is now not working under that status or is now in a different status, can use the §105 portability provisions. Briefly laying out both sides of the argument, the memorandum signaled that USCIS is considering proposing a rule that would allow H-1B beneficiaries "some reasonable period of time such as 60 days after leaving the initial H-1B employer" to begin work with a new employer under portability. H-1B Extensions The guidance memorandum also discusses other provisions of AC21, such as processing H-1B petitions under AC21 §§104 and 106 for periods beyond the existing six-year maximum. USCIS indicated that it will grant extensions of H-1B status under §104(c), which allows extensions beyond the six years for H-1B nonimmigrants who have had an I-140 petition filed on their behalf and would be eligible for an employment-based preference status but for the annual per-country limits on immigration, in three-year increments, until a decision is made on the adjustment of status application. According to the memo, extensions past the six years under §106, which allows for such extensions where an immigrant petition or adjustment of status application has been filed and more than 365 days have passed since the filing of a labor certification application or the immigrant petition, will be granted in one-year increments. H-4 dependents also are eligible for the extensions under the memorandum. The memorandum also indicates that extensions under both §§104 and 106 are to involve the filing and approval of an I-129 petition. This procedure was made important by an earlier cable from the State Department that indicated that consular posts would be able to issue H-1B visas to individuals with "past the sixth year" extensions, only if USCIS issues a new or an extended petition approval. It appears that USCIS will issue such petition approvals. I-140 Portability The guidance memorandum also addresses the portion of §106 that has come to be known as "I-140 portability," indicating that an adjustment of status application cannot be denied on the basis that the beneficiary has changed jobs if the I-485 was filed and remained unadjudicated for 180 days or more and the new job is in the same or similar occupational classification as the job for which the approval was initially made. The memorandum indicates that "it is expected" that an adjustment applicant will notify USCIS when he no longer intends to enter into the employment on the petition, and that an RFE should be issued if the adjudicator has reason to believe that the applicant's intent has changed. In such cases, adjudicators are instructed to request a letter from the new employer verifying that the job offer exists and providing the new title, job description and salary. The memorandum indicates that the salary information is needed for purposes of a determination under the public charge provisions. The guidance suggests that adjudicators consult with the Dictionary of Occupational Titles or with DOL'S O*Net for held in determining if the job classification is the same or similar. The State Department, in its cable on the topic, took a similar stance with respect to §106 "I-140 portability," indicating that an immigrant visa application can be adjudicated if there is a new job offer in the same or similar position, and if the applicant has had an adjustment application pending for 180 days. DOS suggested that posts use the interview process to determine whether the new and old job offers are sufficiently similar. DOL ISSUES FINAL RIR CONVERSION REGULATION: SUMMARY On Friday, August 3, 2001, the Department of Labor issued its long-awaited final rule allowing pending traditional labor certifications to be converted to RIR cases without loss of the priority date (Fed. Reg., August 3, 2001, Vol. 66, No. 150, Pages 40584-40590). The rule itself is a brief amendment to 20 CFR Section 656.21, and states that an employer may file a request with a SESA to have any application filed before August 3, 2001, processed as an RIR case, provided that SESA- directed recruitment has not yet begun in the case. This means that traditional labor certifications filed before the 245(i) deadline of April 30 may now be converted to RIR cases. The final rule as written allows RIR conversion for any case for which the SESA has not yet placed a job order. This would encompass cases forwarded to a regional office prior to the initiation of recruitment. The DOL rejected suggestions by AILA and other groups to provide clear guidelines to SESA's for implementation, stating that the information in the preamble should serve as sufficient guidance. In cases where the ETA does not require amendment, the DOL's preamble states that a written request to convert a case may be made to a SESA, attaching evidence of good faith recruitment within the six months immediately preceding the date of the request. When a written request for RIR conversion is received by the SESA, the preamble states that the SESA should take the request and the supporting documentation, add it to the case file, remove the application from the regular labor certification application queue and place it in the RIR queue. The preamble also confirms that the DOL will allow RIR conversion in cases requiring amendments to the ETA 750, as long as the job opportunity remains essentially the same. With respect to such amendments, the DOL suggests that the SESA's will be following their own long-established procedures. Finally, the preamble contains encouraging language with respect to DOL's view toward RIR conversions. It states: "[G]enerally all requests for conversion to RIR processing will be granted. Only where the occupation listed in the application is on Schedule B, or the request is not timely, would the employer request for conversion to RIR processing be denied." IMMIGRANT VISA LOTTERY (DV-2003) The State Department has announced that the DV-2003 diversity visa lottery will begin October 1 and end October 31st, 2001. A detailed summary is set forth in the Business Immigration Update section of our website at www.meyner.com and instructions are promulgated on the State Department's website, travel.state.gov. DIVERSITY IMMIGRANT VISA PROGRAM (DV-2003) The mail-in period for the next Diversity Visa lottery (DV-2003) will be held between noon on October 1, 2001 and noon on October 31, 2001. Those who choose to enter the DV-2003 lottery should obtain a copy of the DV-2003 Instructions, which may be found at the Bureau of Consular Affairs web site: http://www.travel.state.gov/visainstructions.html Section 203(c) of the Immigration Act of 1990 makes available up to 55,000 (1) permanent resident immigrant visas each year by random selection through a Diversity Visa lottery (DV-2003). The visas are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than 7% of the available Diversity Visas in any one year. There is no specific format for the entry, but it is important to provide all the information requested. Entries for the DV-2003 Diversity Visa Lottery must be received at one of the Kentucky Consular Center mailing addresses during the mail-in period. Entries sent to the wrong address or received before or after this period will be disqualified regardless of when they are postmarked. Please note several important changes in requirements and eligibility described below. Attached is a SAMPLE ENTRY FORM. HOW ARE THE VISAS BEING APPORTIONED? The visas will be apportioned among six geographic regions. A greater number of visas will go to those regions that have lower immigration rates and no visas may be issued to countries that have sent more than 50,000 immigrants to the United States during the previous five years. No one country (2) can receive more than seven percent of the available diversity visas in any one year. Information about visa allotments for each region is determined by the Immigration and Naturalization Service (INS) each year according to a formula specified in Section 203(c) of the Immigration and Nationality Act. The six geographic regions are: WHO IS NOT ELIGIBLE? Persons born in "high admission" countries are, in most instances, not eligible for the program. "High admission" countries are defined as those from which the United States has received more than 50,000 immigrants during the last five years in the immediate relative, family and employment preference categories. Each year, the USCIS adds the family and employment immigrant admission figures for the previous five years, to identify the countries that must be excluded from the annual Diversity Lottery. Since there is a separate determination made prior to each lottery entry period, the list of countries that do not qualify is subject to change each year. For DV-2003, the "high admission" countries are: Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, the Philippines, South Korea, the United Kingdom and dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, Taiwan, and Northern Ireland are eligible to apply for the DV-2003 lottery. HAVE THE REQUIREMENTS CHANGED SINCE LAST YEAR'S REGISTRATION? The address for submitting DV applications has changed. Applicants must mail their entries to one of the six Kentucky Consular Center regional addresses listed below. The entry must be submitted by regular or airmail to the address matching the region of the applicant's country of nativity. Entries sent by express or priority mail, second day airmail, fax, hand, messenger, or any means requiring special handling will be disqualified. Entries mailed to any address other than the Kentucky Consular Center addresses shown below will be disqualified. Africa: DV-2003 Program Asia: DV-2003 Program Europe: DV-2003 Program South America/Central America/Caribbean: DV-2003 Program Oceania: DV-2003 Program North America: DV-2003 Program The eligibility of the applicant and the information required on the entry and on the envelope in which it is sent is specified in detail in the DV-2003 Instructions. Each entry must be personally signed by the applicant. Please note that photographs of the applicant and all his/her dependents are now required, and the photos must conform to the specifications listed in the DV-2003 Instructions. Also note that qualifying work experience will be defined by the Department of Labor's O*Net online database: www.onetcenter.org. WHAT ARE THE REQUIREMENTS TO ENTER? The applicant must be a native of a qualifying country. However, if a person was born in an ineligible country but his or her spouse was born in an eligible country, such a person can claim the spouse's country of birth, provided both the applicant and spouse are issued visas and enter the U.S. simultaneously. Also, if a person was born in an ineligible country, but neither of his or her parents was born or resided there at the time of the birth, such a person may be able to claim one of the parent's countries of birth. In addition, applicants must have either a high school education or its equivalent, or two years of work experience within the past five years in an occupation that requires at least two years of training or experience. If the applicant does not meet these requirements, he or she should not submit an entry for the DV program. There is no initial application fee or special application form to enter. The entry must be typed or clearly printed in the English alphabet on a sheet of plain paper and must include: The applicant's FULL NAME, with the last name underlined. Husbands and wives may each submit an entry, if both qualify. If either were selected, the other would be entitled to derivative status. Note: Husbands and wives may not sign for each other. Each applicant must sign his or her own entry. Only one entry for each applicant may be submitted during the registration period. Any entry sent by express or priority mail, fax, hand, messenger, or any means requiring receipts or special handling will not be processed. Duplicate or multiple entries will disqualify an individual from registration for this program. Any entry received before or after the specified registration dates REGARDLESS OF WHEN IT IS POSTMARKED and any entry sent to an address other than one of those indicated will be disqualified. All mail received during the registration period and meeting the above requirements will be individually numbered and successful entrants will be selected at random by computer regardless of time of receipt during the specified mail-in period. Please note: Failure to carefully follow all of these instructions will disqualify the entry. WHAT DOES THE TERM "NATIVE" MEAN? IS THERE ANY SITUATION IN WHICH A PERSON WHO WAS NOT BORN IN A QUALIFYING COUNTRY MAY APPLY? In most cases, "native" normally means someone born in a particular country, regardless of the individual's current country of residence or nationality. HOWEVER, if a person was born in an ineligible country but his/her spouse was born in an eligible country, such person can claim the spouse's country of birth providing both the applicant and spouse are issued visas and enter the U.S. simultaneously. A minor dependent child can be charged to the country of birth of a parent; and an applicant born in a country of which neither parent was a native or a resident at the time of his/her birth may be charged to the country of birth of either parent. If the applicant is claiming nativity in a country other than his/her place of birth, this must be clearly indicated on the entry, and must show the native country claimed on the upper left?hand corner of the envelope in which the registration request is mailed. WHEN ARE ENTRIES FOR THE DV PROGRAM ACCEPTED EACH YEAR? The month-long application period will be held each fall beginning at noon on the first Monday in October and last for 30 days. Each year, millions of applicants apply for the program during the mail?in registration period. The massive volume of entries creates an enormous amount of work in selecting and processing successful applicants. Holding the application period in the fall ensures that successful applicants are notified in a timely manner. This also gives both them and our embassies and consulates overseas a full fiscal year (fiscal year 2003 begins on October 1, 2002 and ends on September 30, 2003) to process the necessary immigrant visas. IS IT NECESSARY TO USE AN OUTSIDE ATTORNEY OR CONSULTANT? The decision to hire an attorney or consultant is entirely up to the applicant. Procedures for entering the Diversity Lottery can be completed without assistance following simple instructions. No fee is charged to enter the DV-2003 program. The selection of winners is made at random and no outside service can improve an applicant's chances of being chosen or guarantee an entry will win. Any service that claims it can improve an applicant's odds would be promising something it cannot deliver. Nevertheless, applicants may use outside assistance, if that is their choice. There are many legitimate attorneys and immigration consultants assisting applicants for reasonable fees, or in some cases for free. Unfortunately, there are other persons who are charging exorbitant rates and making unrealistic claims. The U.S. Government employs no outside consultants or private mail services to operate the DV program. Any intermediaries or others who offer assistance to prepare DV applicants do so without the authority or consent of the U.S. Government. A qualified entry received directly from an applicant has an equal chance of being selected by the computer at the Kentucky Consular Center as does an entry received through a paid intermediary who completes the entry for the applicant. There is no advantage to mailing early, or mailing from any particular place. Every entry received during the mail-in period will have an equal random chance of being selected within its region. However, receipt of more than ONE ENTRY PER PERSON will disqualify the person from registration, regardless of the source of that entry. In addition, the DV entry must be personally signed by the applicant, or the entry will be disqualified. Persons who think they have been cheated by a U.S. company or consultant in connection with the DV Lottery may wish to contact their local consumer affairs office or the Federal Trade Commission (FTC). The Internet address for using the online complaint form is: http://www.FTC.gov. The FTC can also be contacted by telephone, toll free at 1-877-FTC-HELP (382-4357) or (202) 382-4357 or TDD: (202) 326-2502. The mailing address is: Consumer Response Center, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. (The FTC telephone number is only to report fraud and not to obtain information about application procedures for the DV Lottery.) HOW WILL WINNERS BE NOTIFIED? Only successful applicants will be notified by mail by the Kentucky Consular Center at the address listed on their entry. The notifications will be sent between April and June 2002, along with instructions on how to apply for an immigrant visa. Applicants must meet all eligibility requirements under U.S. law to be issued a visa. Being selected in the DV Lottery does not automatically guarantee being issued a visa because the number of applicants selected is greater than the number of immigrant visas available. Those selected will therefore need to act quickly on their immigrant visa applications. Applicants who are physically present in the United States may be eligible to apply to the USCIS for adjustment of status to permanent resident. However, such applicants must ensure that USCIS can complete action on their cases before September 30, 2003. Once all available visas have been issued, the DV Program for fiscal year 2003 will end. In any event, all DV-2003 visas must, by law, be issued by September 30, 2003. WHERE CAN ONE RECEIVE INSTRUCTIONS TO ENTER THE LOTTERY? Interested persons may call (202) 331-7199, which describes the various means to obtain further details on entering the DV-2003 program. Applicants overseas may contact the nearest U.S. embassy or consulate for instructions on the DV lottery. DV information is also available in the "Visa Bulletin" on the Internet at http://travel.state.gov or via the Consular Affairs automated fax at (202) 647-3000 (code 1550). Calls to the automated fax service must be made from a fax machine using the receiver or voice option of the caller's fax equipment. Applicants may also e-mail kccdv@state.gov for copies of the instructions on the DV lottery. 1. The Nicaraguan and Central American Relief Act (NCARA) passed by Congress in November 1997 stipulates that up to 5,000 of the 55,000 annually allocated diversity visas will be made available for use under the NCARA program. The reduction of the limit of available visas to 50,000 began with DV-2000 and remains in effect for the DV-2003 program. 2 The term "country" in this notice includes countries, economies and other jurisdictions explicitly listed. Portions of this newsletter have been reprinted with permission from AILA The material contained in this newsletter is for informational purposes and should not be considered legal advice. |
The immigration law practice of Meyner and Landis LLP provides a full scope of immigration law services. This includes representation of large and small businesses seeking to recruit and retain foreign nationals to meet staffing goals; foreign nationals seeking work or trader or investor opportunities or wanting to achieve family reunification; and foreign nationals in deportation proceedings, including those who face removal from the U.S. due to criminal convictions.
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