United States: Business Immigration Monthly - October 2016

GREEN CARD LOTTERY FOR FY2018 OPEN OCTOBER 4th THROUGH NOVEMBER 7th

The DOS has released its instructions for the Diversity Immigrant Visa Lottery Program (DV-2018) for fiscal year 2018 (October 1, 2017 through September 30, 2018). The Lottery Program for DV-2018 registration will be open for only 33 days from October 4, 2016 at noon (EST) through close at noon (EST) on November 7, 2016. There are no significant changes from last year's Lottery Program, except that now applicants who lose their confirmation number can use a new tool on Entrant Status Check (ESC) on the DOS website to retrieve the number via email by entering certain identifying information.

The DOS makes 50,000 "green cards" available annually to persons from countries with low rates of immigration to the United States. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing. The DOS will notify a participant's selection exclusively online. Beginning on May 2, 2017, applicants can check the status of their registration online via Entry Status Check at www.dvlottery.state.gov to determine whether they were selected. Entry Status Check will also notify selected participants and provide them with instructions on the procedures for the application process and will confirm appointments for visa interviews. All entrants must check on the DOS website via the Entry Status Check to determine whether they have been selected to participate in the Lottery. The Entry Status Check is the ONLY manner in which entrants will be notified of their selection. The DOS will NOT mail any correspondence to the selected applicants nor will it send out an email. Furthermore, the Entry Status Check will be the only way in which selected individuals will be provided further instructions on immigrant visa procedures.

The Diversity Visa "green cards" are available only to citizens of countries with lower rates of immigration and no visas are available to citizens of countries sending more than 50,000 immigrants to the United States in the past five years. Within each region, no country may receive more than 7% of the available Diversity Visa "green cards" in any one year.

Countries Ineligible to Participate in DV-2018 Lottery Program

For the DV-2018 Lottery Program, natives of the following countries are not eligible to apply because they are the principal source countries of Family-Sponsored and Employment-Based immigration, or "high admission" countries: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (which includes Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, St. Helena, Turks and Caicos Islands – but not Northern Ireland) and Vietnam. Foreign nationals born in Hong Kong SAR, Macau SAR and Taiwan are eligible for the Diversity Visa Lottery. A list of the countries whose natives are qualified for the DV-2018 Visa Lottery Program is contained in Exhibit A below.

NOTE: There is only one change in the countries of eligibility from FY2017, namely, nationals of Ecuador are now eligible for the DV-2018 Lottery Program.

NOTE: Even if you were born in one of the ineligible countries you may still qualify for a Diversity Visa if your spouse was born in an eligible country (and you are applying for the visa together) or if one of your parents was either born in or at the time of your birth was a legal resident of an eligible country.

Registration Procedures

The entries for the DV-2018 Lottery Program must be submitted electronically between noon (EDT/GMT-4) Tuesday, October 4, 2016 through noon (EST/GMT-5) Monday, November 7, 2016. The DOS will only accept entries made on an electronic diversity entry form which will be available at www.dvlottery.state.gov during the registration period.  The DOS will not accept mail-in entries. Only one entry by and for each person during each registration period is permitted. Receipt of more than one entry per person will disqualify the person from registration, regardless of the source of the entry.

The procedures for submitting an entry in the DV-2018 Lottery Program are as follows:

Entry Form Contents. The DOS will only accept completed Electronic Diversity Visa Entry Forms submitted electronically at www.dvlottery.state.gov during the registration period. All entries by an applicant will be disqualified if more than one entry for the applicant is received, regardless of who submitted the entry. The entry form will ask the applicant to submit the following information:

1.     Full name; (exactly as shown on your passport);

2.     Date of birth;

3.     Gender;

4.     City/town and Country of birth;

5.     Country of eligibility or chargeability;

6.     Photograph according to the specifications described below;

7.     Current mailing address;

8.     Country where you live today;

9.     Phone number (optional);

10.  Email address;

11.  Highest level of education completed;

12.  Marriage status;

13.  Number of children that are unmarried and under the age of 21 years of age and each child's information including name, date of birth, gender, city/town of birth, country of birth and photograph that meets the previously described specifications (failure to list all children, who are eligible, will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview); and

Spouse's information, including name, date of birth, gender, city/town of birth, country of birth and spouse's photograph that meets the previously described specifications (failure to list your spouse will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview).

Photograph Requirements. The entry will be disqualified if photographs are not submitted of the applicant, his/her spouse and each child under the age of 21 (including all natural children as well as legally-adopted and stepchildren, except a child who is already a U.S. citizen or lawful permanent resident) even if the child no longer resides with the applicant and does not intend to immigrate under the Lottery Program. The photographs must be submitted electronically with the entry form. Group or family photos will not be accepted. There must be a separate photo for each family member. Each applicant, his/her spouse and each child will therefore need a computer file containing his/her digital photograph which will be submitted on-line with the entry form. The image file can be produced either by taking a new digital photograph or by scanning a photographic print with a digital scanner. The submitted digital images must conform to the following specifications:

New Digital Image

1.     The image must be in the Joint Photographic Experts Group (JPEG) format;

2.     The image must be in color - 24 bits per pixel (black and white or 8-bit images will not be accepted);

3.     The maximum image size accepted is 240 kilobytes (240KB);

4.     The minimum dimensions accepted are 600 pixels (width) by 600 pixels (height) and the height must equal the width;

Scanning a Submitted Photograph

5.     Scanner Resolution must be at least 300 dots per inch (dpi);

6.     The image must be in the Joint Photographic Experts Group (JPEG) format;

7.     The maximum image file size accepted is 240 kilobytes (240KB);

8.     Image resolution must be 600 by 600 pixels;

9.     The image must be in color - 24 bits per pixel (black and white or 8-bit images will not be accepted);

Additional Specifications

10.  The applicant, spouse or child must be directly facing the camera;

11.  The head of the person being photographed must directly face the camera and should not be tilted up, down or to the side;

12.  The head should cover about 50% of the area of the photograph;

13.  The photograph should be taken with the person being photographed in front of a neutral, light-colored background (photographs taken with a very dark or patterned background will not be accepted);

14.  Photographs in which the face of the person being photographed is not in focus will not be accepted;

15.  Photographs in which the person being photographed is wearing sunglasses or other paraphernalia which detracts from the face will not be accepted; and

16.  Photographs of applicants wearing head coverings or hats are only acceptable due to religious beliefs and still may not obscure any portion of the face of the applicant.  

DOS Processing of Entries

After an applicant submits his/her entry, the DOS will send him/her an electronic confirmation notice of receipt of a completed entry form. Applicants will be selected at random by computer from among qualified entries. All entrants must check on the DOS website via the Entry Status Check whether they have been selected to participate in the Lottery on or after May 2, 2017 through September 30, 2018.  The Entry Status Check is the ONLY manner in which entrants will be notified of their selection.  The DOS will NOT mail any correspondence to the selected applicants nor will it send out an email.  The DOS normally notifies approximately 100,000 applicants that they have been selected through the DV Lottery Program. However, only 50,000 "green cards" are available annually. The green cards based upon the DV-2018 Lottery Program will be issued between October 1, 2017 and September 30, 2018. However, because more individuals will be registered than there are immigrant visas available, a registered applicant who wishes to receive his/her immigrant visa must be prepared to act quickly after being notified, especially if he/she is assigned a favorable lottery number in the random selection process.  The DOS emphasized that random selection in the lottery process does NOT guarantee that an applicant will receive a "green card."

Education or Work Experience Required

In order to qualify for a "green card" through the Diversity Visa Lottery Program, each applicant must have at least a high school education or its equivalent or, within the past five years, have two years of work experience in an occupation requiring at least two years of training. A high school education or its equivalent is defined as successful completion of a 12-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to a high school education in the United States. Evidence of educational work experience should not be submitted with the lottery entry but must be submitted to the consular official or U.S. Citizenship and Immigration Services (USCIS) officer at the time of the visa or adjustment of status interview. In order to determine eligibility based on work experience, definitions from the Department of Labor's (DOL) O*Net On-Line database will be used.

DOS Does Not Charge to Enter the DV Lottery Program

There is no charge to enter the annual DV Lottery Program. The DOS does not employ outside consultants or private services to operate the program. A qualified entry submitted electronically directly by the applicant has an equal chance of being selected by the computer at the DOS Kentucky Consular Center as does an entry submitted electronically through a paid intermediary who completes the entry for the applicant. However, if an applicant or a paid intermediary submits more than one entry per person, the person will be disqualified from the program. A special DV Lottery Case processing fee will be payable later to the DOS by persons who "win" the lottery and are processed for a "green card" based upon the lottery program.

DOS RELEASES NOVEMBER 2016 VISA BULLETIN – LITTLE MOVEMENT IN MOST CATEGORIES

The Department of State (DOS) recently released the November 2016 Visa Bulletin. Although there was some movement in the employment-based visa categories, the overall movement was not significant. For example, the Final Action dates in the EB-2 Indian national category advanced from January 2007 to November 2007 and in the EB-2 Chinese national category advanced from February 2012 to July 2012. Additionally, in the EB-3 category, the world category advanced by approximately one month to July 2016, the Chinese national category advanced by approximately four months to April 2013, and the Filipino national category advanced by approximately four months to April 2011. However, the Filing dates for the employment-based immigrant visa categories did not advance for any of the Chinese national categories, Indian national categories or Filipino national categories.

The following is a comparison of the movement in the Final Action dates in some of the employment-based immigrant visa categories:

Aug 2009 Sept 2012 May 2013 Jan 2015 Feb 2016 Sep 2016 Oct 2016 Nov 2016
EB-3 World U 10/01/06 12/01/07 06/01/13 10/01/15 05/01/16 06/01/16 07/01/16
EB-2 China 10/01/03 U 05/15/08 02/01/10 03/01/12 01/01/10 02/15/12 07/15/12
EB-3 China U 12/15/05 12/01/07 03/01/11 10/01/12 01/01/10 01/22/13 04/15/13
EB-2 India 10/01/03 U 09/01/04 02/15/05 08/01/08 02/22/05 01/15/07 11/01/07
EB-3 India U 10/08/02 12/22/02 12/15/03 06/15/04 02/15/05 03/01/05 03/08/05
EB-3 Other Workers World U 10/01/06 12/01/07 06/01/13 10/01/15 05/01/16 06/01/06 07/01/16

Additional information about movement in the employment-based immigrant visa categories will be contained in our firm's future Immigration Updates when it becomes available.

DOS PROVIDES REMINDER REGARDING VISA REVOCATIONS FOR DUI

The DOS recently provided a reminder regarding a new policy implemented in November 2015 which requires consular officials to revoke nonimmigrant visas of individuals arrested for, or convicted of, driving under the influence or driving while intoxicated or similar arrests/convictions that occurred within the previous five years. The DOS stated that this policy does not apply when the arrest/conviction occurred prior to the date of the visa application and has already been assessed within the context of the visa application. Consular officials refer any nonimmigrant visa applicant with one alcohol related arrest within the last five years, or two or more arrests in the last ten years, or where other evidence suggests an alcohol problem exists, to a panel physician for a medical examination prior to visa issuance in order to determine whether the applicant is inadmissible to the United States on health grounds. DOS stated the consular officials may revoke visas of an individual even if the individual is physically present in the United States. Additionally, the revocation of a principal applicant's visa will usually revoke the dependents' visas as well. DOS stated that the revocation of the visa does not override the nonimmigrant status granted by Customs and Border Protection (CBP) at the time of the individual's entry and does not affect the individual's ability to stay in the United States, except in extremely rare cases. However, the visa is no longer valid for future travel to the United States.

ICE WITHDRAWS SEVIS ACCESS FOR UNIVERSITY

Immigration and Customs Enforcements (ICE) Student and Exchange Visitor Program (SEVP) recently announced that it is withdrawing the SEVIS access for Herguan University. As of October 6, 2016, Herguan University is no longer able to issue any new Forms I-20. Additionally, current Herguan University international students will have until January 11, 2017 to either transfer to another SEVP-certified institution, change their status or depart the United States. Students who do not complete any one of these three actions prior to January 11, 2017 will have their records terminated in SEVIS and SEVP indicated that the students will then be considered out of status. For students in Initial status who have not entered the United States, they will not be admitted into the United States with a Herguan University-issued Form I-120 or a visa issued for them to commence studies at Herguan University. SEVP indicated that all Active nonimmigrant students at Herguan University will receive letters from SEVP to outline their options.

The withdrawal of SEVIS access for Herguan University comes approximately a year and a half after the university's CEO pled guilty in federal court to providing false documents to the U.S. Department of Homeland Security (DHS). The CEO, Mr. Jerry Wang, pled guilty in April 2015 to submitting more than 100 false documents to DHS in an effort to circumvent the F-1 regulations. Mr. Wang agreed to forfeit more than $700,000 and serve between three months and two years in prison.

ICE indicated that Herguan University currently has approximately 240 international students, of who 180 are from India. However, Herguan University reported to the state of California on August 1, 2016  that it had only 90 students. Herguan University is one of four institutions that has recently had its SEVIS certification withdrawn by ICE. The other institutions are Aviation Pacific Inc., University of Northern New Jersey and Universal English Center Corporation. However, the University of Northern New Jersey was an institution created by ICE to identify fraud in the F-1 program.

CBP MAKES ONLINE FORM I-94 APPLICATION AND PAYMENT AVAILABLE TO INTERNATIONAL TRAVELERS ARRIVING AT A LAND PORTS OF ENTRY

CBP recently announced an enhancement to its Form I-94 website (www.cbp.gov/i-94) which will allow travelers to apply and pay for their Form I-94 online prior to arriving at a land port of entry. CBP indicated that this should speed up international travelers' entry into the United States by providing their biographic and travel information and paying the $6 fee for the Form I-94 online up to seven days prior to their entry at a land port. International travelers using this new option will receive a provisional Form I-94 after submitting their application and payment online. The Form I-94 application will collect information that is otherwise collected in person at the land port of entry, including biographic information, passport details, visa details (if applicable) and SEVIS number (if applicable). After completing the online process, the international traveler must present himself/herself at a land port of entry within seven days of the application and submit biometrics (if applicable) and be interviewed by a CBP officer. If the traveler does not complete the process within seven days of the applications, the provisional Form I-94 will expire and he/she will have to reapply again, including paying the fee. There are no refunds if the Form I-94 is not issued within seven days or if the international traveler is denied admission to the United States. CBP reminded international travelers that they should still be prepared to show evidence of their residence, employment and/or travel plans if requested by the CBP officer when they are applying for admissions at the port of entry.

DOS IMPLEMENTS "NO EYEGLASSES" POLICY FOR PHOTOGRAPHS

The DOS recently announced that beginning November 1, 2016, it will no longer accept photographs of visa and U.S. passport applicants wearing glasses, except in rare, medically documented circumstances. DOS indicated that it decided to prohibit photographs of applicants wearing eyeglasses to enhance the performance of its facial recognition programs. The medical reason exception is very limited and requires a medical statement signed by a medical professional/health practitioner. If the medical condition is temporary and travel is imminent, the DOS has indicated that the validity of the passport or visa stamp will be limited to one year.

DHS EXTENDS TPS FOR SIERRA LEONE, LIBERIA AND NEW GUINEA FOR SIX MONTHS IN ORDER TO ALLOW AN ORDERLY TERMINATION OF THE DESIGNATION

DHS recently indicated that it will be extending the Temporary Protected Status (TPS) status for Sierra Leone, Liberia and New Guinea for an additional six months. The status was set to expire on November 21, 2016. Sierra Leone, Liberia and New Guinea have been designated for TPS since November 2014 due to the Ebola virus. Since its last TPS designated extension, DHS has determined that there has been "significant improvements" in the countries' conditions. Therefore, DHS indicated that this will be the last extension of the TPS designation for these three countries and that it is only being extended at this time in order to allow for an orderly transition for the end of the designation. DHS indicated that on May 21, 2017, nationals of Sierra Leone, Liberia and New guinea who were previously granted TPS under this designation will no longer have TPS. DHS urged in its announcement for these individuals to prepare for an arranged departure from the United States or, in the alternative, to apply for other immigration benefits for which they are eligible prior to May 21, 2017. Sierra Leone, Liberia and New Guinea are three of the few countries that have been granted TPS which have subsequently had their TPS withdrawn. There are still numerous other countries that continue to regularly have their TPS designation extended. A list of the current TPS designated countries is available on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/tps.

SEVP CHANGES FORM I-17 FILING PROCEDURE

SEVP recently announced a change in the Form I-17 filing procedure. As of October 1, 2016, school officials filing an initial petition or submitting an update to an existing form I-17 must electronically submit their school's supporting evidence by scanning the documents and emailing them to the SEVP's School Certification Branch. This does not change the recertification process. SEVP expects that with this change, it will help to expedite the SEVP certification process allowing adjudicators to review certification requests more efficiently. If schools fail to comply with the new filing process, SEVP has indicated that it may cancel the school's request and ask them to resubmit the request with the required evidence according to the new procedures. Additional information about the new process is contained in the SEVP September 2016 Spotlight newsletter available at www.studyinthestates.dhs.gov.

DOS REMINDS DIVERSITY VISA 2017 APPLICANTS TO RECHECK THE ENTRANT WEBSITE

The DOS announced in its November 2016 Visa Bulletin that applicants in the Diversity Visa Lottery 2017 should return to the DOS' Entrant Status Check (ESC) website at www.dvlottery.state.gov to confirm whether they have "won" the DV2017 lottery. The DV2017 lottery was conducted from October 3, 2015 through November 6, 2015. Results from the DV2017 were first posted in the ESC in May 2016. However, due to the lack of demand, it appears that the DOS has added additional "winners" to the ESC website. Therefore, applicants should recheck the system even if they were notified in May 2016 that they did not "win" the lottery to confirm whether or not their status has changed. The DOS also encouraged "winners" of the DV lottery to commence the Green Card process based upon the DV2017 lottery selection as soon as possible.

EVUS ENROLLMENT FOR CHINESE NATIONALS OF B VISAS TO COMMENCE ON NOVEMBER 29, 2016

Beginning on November 29, 2016, travelers to the United States with a ten-year B-1 or B-2 visa in a People's Republic of China (PRC) passport will be required to enroll in the Electronic Visa Update System (EVUS) in order to be admitted to the United States in B-1 or B-2 status. Travelers using passports from Hong Kong SAR, Macau SAR, Taiwan or any passport other than a PRC passport are not affected by the EVUS enrollment requirement. According to the Customs and Border Protection (CBP) website, travelers who are subject to the EVUS requirement but do not have valid enrollments will not be able to obtain an airline boarding pass or enter through a land port of entry starting on November 29, 2016. An EVUS enrollment will remain valid for two years or until the traveler's passport or visa expires, whichever comes first. CBP expects to begin accepting early EVUS enrollments on a voluntary basis in mid-October 2016. There will be a nominal fee of $8.00 to enroll in EVUS. Additional information about the EVUS requirement and registration process is contained on the CBP website at www.cbp.gov/EVUS.

UPDATE REGARDING NEW PERM MODERNIZATION PROGRAM

During its quarterly stakeholders meeting, officials of the U.S. Department of Labor (DOL) Office of Foreign Labor Certification (OFLC) announced that they do not believe that a new, modernized PERM program will be introduced prior to the end of the current Obama administration in January 2017. The proposed regulation for the PERM modernization program has been pending with the Office of Management and Budget (OMB) since March 2016. OFLC officials did not have an estimate as to when the proposed regulation will be released for public comment. However, OFLC officials were hopeful that at least the Notice of Proposed Rule-Making (NPRM) will be released prior to January 2017. After the NPRM is released, it is assumed that the public will have 60 days in which to provide comments on the proposed regulation. The DOL would then have to review the comments and issue a final regulation before any changes to the current PERM program become effective.

Additional information about changes to the current PERM program will be contained in our firm's future Immigration Updates when they become available.

MFEM NEWS

Mr. Bob White of the Firm's Immigration Group to Participate in Multiple Sessions During the Annual NAFSA Region V Conference in Milwaukee

Mr. Bob White of the firm's Immigration Group will be participating in multiple sessions during the NAFSA: Association of International Educators' (NAFSA) Region V annual conference being held this year in Milwaukee, Wisconsin from October 26 – October 28, 2016. On Wednesday, October 26, Mr. White will be participating as a Trainer for international educators in an H-1B Workshop. On Thursday, October 27, Mr. White will be participating in a session regarding congressional advocacy on Capitol Hill in Washington, D.C. for sound and just immigration policies, especially those affecting employers and universities that have international workers and students. Mr. White will be training international educators on how to effectively educate our country's legislators on the best immigration policies for the United States. On Friday, October 28, Mr. White will be leading an immigration overview session for international educators on the F-1, J-1 and H-1B programs. In addition to discussing recent changes in immigration policy and procedure, the session will also predict what other changes may occur in 2017 after the elections. Additional information about the NAFSA Region V Conference is available on the NAFSA website at www.nafsa.org.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions