United States: Immigration Insights (September 2010)

Department of State Announces 2012 Diversity Visa Lottery Registration Period

Each year the U.S. Department of State ("DOS") runs a lottery program that encourages "seed" immigration from countries that have been under-represented in recent immigration trends. U.S. immigration law makes 55,000 Diversity Visas (DV) available each fiscal year to persons from countries with historically low rates of immigration to the United States. DOS will open the DV-2012 Diversity Visa Lottery program registration period on Tuesday, October 5, 2010. Applicants must submit entries for the DV-2012 lottery electronically between noon on Tuesday, October 5, 2010 and noon on Wednesday, November 3, 2010, Eastern Time.

The link to the application form, E-DV, can be found here. Detailed information about the entry requirements as well as answers to frequently asked questions may be located here. Starting next year, DOS will use a new system to notify DV winners." From May 1, 2011 onward, DV-2012 applicants will be able to use their unique confirmation number provided upon registration to check online through Entry Status Check at www.dvlottery.state.gov to determine if they have been selected. DOS will also administer instructions and appointments for immigrant visa interviews through that portal.

Our clients and friends should be aware that many scam artists and identity thieves create websites and send emails claiming they can register applicants and boost their odds of being selected. Such claims are patently false. Anyone can go to DOS' DV website to register according to the rules, and using a vendor to accomplish initial registration will not positively influence one's odds. Persons selected under the DV program should at least consider retaining an immigration lawyer because the rules for using the selection to gain permanent residence are deceptively complex, and DOS alerts approximately 90,000 winners for only 55,000 slots, making getting through the process as efficiently and nimbly as possible important to increase the odds that a selection will result in attainment of permanent residence status.

USCIS Delays in Adjudicating Requests for EADs and Advance Parole

Many applicants for U.S. permanent resident status no longer hold H-1B, L-1, O-1 or other temporary/nonimmigrant status because their employers choose not to seek extensions of the applicants' nonimmigrant status, especially given that USCIS charges for and issues employment authorization cards and travel documents as part of the permanent resident application.

Applicants for permanent residence may apply to renew their employment authorization documents (EADs) and travel authorization documents (known as Advance Parole) as long as their permanent residence applications are pending with USCIS. However, this circumstance puts the burden on permanent residence applicants who are employed to ensure that there is no gap in their work authorization.

USCIS policy prohibits applicants from filing EAD and Advance Parole renewal applications more than 120 days before their EADs and Advance Paroles will expire. USCIS encourages applicants to file such applications at least 90 days in advance to avoid any gap in EAD or Advance Parole.

With USCIS' recent migration to a lockbox filing approach (rather than filing applications directly with USCIS, applicants must file with a contractor that runs a lockbox for USCIS), the lockbox contractor is routinely taking four to six weeks just to accept applications and issue Receipt Notices. Even after Receipt Notices are issued, there is additional delay in routing accepted applications from the lockbox to USCIS for actual adjudication. As a result, EAD and Advance Parole applications are now taking much longer than 90 days to be decided, with delays sometimes stretching five months and longer. There is no indication that the lockbox problems will be resolved anytime soon.

DOS Seeks Online Comments About the DS-160 -- Nonimmigrant Visa Application

Many of our clients and their employees have been very frustrated by the Department of State (DOS)'s new DS-160 nonimmigrant visa application form that may be completed only on-line. The principal complaint is that the application website "times out" every few minutes even if one is actively working on the application, so applicants must save their work every few minutes to avoid losing data. DOS is accepting comments on both the content, and usage burden of applications of the form, so if you have complaints, you may share your experiences with DOS at VisaRegs@state.gov. Subject line must read DS-160 Reauthorization and be submitted by November 7, 2010.

H-1B Program Still Open But Availability is Declining

As of September 24, 2010, USCIS had received approximately 39,600 cap subjected H-1B petitions, and receipted 14,400 H-1B petitions for foreign nationals with advanced U.S. degrees. The quota is 65,000 for "regular" H-1B petitions, and 20,000 for those with advanced degrees from U.S. schools.

USCIS Increases Filing Fees

U.S. Citizenship and Immigration Services ("USCIS") announced an increase in most filing fees effective November 23, 2010. In a few situations, USCIS has lowered filing fees. Petitions and applications received by USCIS on or after November 23, 2010 must bear the new filing fees or USCIS will reject the petition or application.

The following schedule lists the adjusted fees that will take effect on November 23, 2010, alongside the existing fees in effect until that date:

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