Registration Information for Diversity Green Card Lottery

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 6, 2018.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2019.

New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, please don’t hesitate to contact me.

USCIS Policy Change Regarding Deportation Proceedings for Visa Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced a sweeping new policy, effective immediately, that instructs USCIS officers to initiate removal (deportation) proceedings if, upon denial of an application or petition, an individual is unlawfully present in the United States. This new policy requires USCIS to issue a Notice to Appear (NTA) – a document issued to a foreign national instructing them to appear before an immigration judge for removal proceedings – in the following circumstances:

  • Where fraud or misrepresentation are substantiated or where an applicant abused any program related to the receipt of public benefits;
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability;
  • Where USCIS denies an Application for Naturalization on good moral character grounds because of a criminal offense;
  • Upon the denial of an application or petition, when an applicant is unlawfully present in the U.S.

This new policy is expected to dramatically impact a wide range of foreign workers, students, and U.S. employers. While historically NTAs have rarely been issued to employment-based visa applicant’s after the denial of an application, this policy shift appears to fall in line with President Trump’s executive orders focused on immigration enforcement and prosecution

Examples of employer-sponsored foreign nationals who may now be subject to removal proceedings include:

  • Individuals who have their application to extend or change to H-1B, L-1, or other nonimmigrant visa status denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Individuals who have their application to change employers denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Students who have their applications to extend their F-1 status or applications to change status to H-1B denied, and who have now fallen out of status under their student visa.
  • Individuals who have their application for either employment-based or family-based adjustment of status to permanent residence denied, and who now no longer have any nonimmigrant status.

While it is not clear how USCIS will implement these new guidelines, this change will nevertheless likely affect the lives of many individuals who have lived and worked in the U.S. lawfully for years. Foreign nationals that receive an NTA are advised to speak to qualified counsel to handle this sensitive matter. For questions on this or any immigration matter, please feel free to contact me.

H-1B Visa Cap Met. What Are Your Alternative Immigration Options?

U.S. Citizenship & Immigration Services (USCIS) has announced that it reached the annual 85,000 H-1B visa cap in the first five days of April 2018.  Specifically, USCIS received 190,098 H-1B cap cases (a 4% drop from last year), which means that once again, USCIS will conduct a computer-generated lottery in the coming weeks to determine which petitions they will process. Employers who have their petitions selected in the lottery will receive a receipt notice from USCIS, and if approved, can have their employees begin working for them in H-1B status on October 1, 2018. Petitions that are not selected in the lottery will be returned to the employers with their money back.

USCIS will continue, however, to accept H-1B petitions year-round from employers who are exempt from the H-1B cap (such as universities, nonprofits affiliated with institutions of higher education, or nonprofit research organizations), as well as petitions to extend the status of those currently in H-1B status or for those in H-1B status seeking to change employers.

While no more new H-1B visas will be available for employers and foreign nationals seeking to apply in 2018, many candidates may be eligible for other alternative visa options. The following visa categories are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • L-1 Visa: For intracompany transferees who have worked for a foreign entity for one year and are seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity
  • E-1/E-2 Visa: For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested. The E-1/E-2 visa is a great option for foreign entrepreneurs seeking to work in an essential capacity for their U.S. entity.
  • O-1 Visa: For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor.
  • TN Visa: For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment. Examples of qualifying TN professional occupations include, but are not limited to Engineer, Accountant, Architect, Computer Systems Analyst, Geologist, Geophysicist, Graphic Designer, Management Consultant, Scientific Technician, Engineering Technicians, and many occupations in the medical and allied health field.
  • H-3 Visa: For foreign nationals coming to the U.S. to engage in a course of training.
  • E-3 Visa: For Australian citizens who will be employed in a specialty occupation in the U.S. (similar requirements to the H-1B visa).

Watch our immigration videos for additional information on these visas and to learn more about the eligibility requirements. As always, if you have questions about the H-1B visa cap or any of these work visa options, please contact our office.

Winning The H-1B Visa Lottery

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2019. As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process. Based on the number of petitions received in the first few days of April last year (over 199,000) and the previous year (over 236,000), combined with the current market demand for high-skilled labor and reports of possible changes to visa programs in the future, many our anticipating that USCIS will receive over 200,000 H-1B petitions in the first few days of this April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission to play in this H-1B lottery on April 2nd. Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify. Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed. 

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, USCIS has confirmed that it intends for the H-1B filing process and procedures to remain the same as it has in previous years.  Nevertheless, as indicated by the massive increase of Requests for Evidence (RFE) and denials of H-1B petitions issued by USCIS over the past year, employers and foreign nationals should be prepared to evidence the following, in order to increase their chances of getting their visa petitions approved:

  1. Document the specific scope and educational requirements for the position to show that the position is one which requires a Bachelor’s degree as a minimum to enter the occupation.
  2. Review the prevailing wage rates for the occupation through the Department of Labor’s Wage Surveys to determine whether the wage level is appropriate for the professional position you are hiring for.
  3. Document the nexus between the foreign national’s degree and the occupation they will be hired for.

WATCH my conversation on how to overcome issues with H-1B RFEs

Needless to say, the H-1B visa petition can be a technical and cumbersome application to file.  Working with qualified counsel will help to ensure technical mistakes are avoided and that a comprehensive petition will have the best chance at winning in the H-1B visa lottery.  If you have any questions about the H-1B visa process, please don’t hesitate to contact me.

Diversity Visa Green Card Lottery Is Accepting Applications

The annual Diversity Immigrant Visa Lottery, which makes available 50,000 permanent resident visas ("green cards") to natives of countries deemed to have low rates of immigration to the U.S., is now open for online registration until November 7, 2017.  The Diversity Lottery is FREE and applications must be filed online through the official Department of State Diversity Lottery website.  Please visit the State Department Diversity Immigrant visa information site for eligibility information and to apply.  

Only applicants from certain eligible countries can apply in the Diversity Lottery, and must meet certain educational or work requirements (i.e. having a high school education or having worked in 2 of the last 5 years in a qualifying occupation).  

Lottery winners will be selected at random next year and can check whether they have been selected starting May 1, 2018.

Diversity Visa Winners Annouced

The 2018 USA Diversity Visa Lottery winners have been announced. If you applied, confirm if you've won a "green card" and lawful permanent residence at dvlottery.state.gov.  You will need your entry confirmation number, last name, and year of your birth to check the results.

If you are selected in the lottery, you will be given instructions in Entrant Status Check about how to apply for your immigrant visa for yourself and family members.

The Diversity Immigrant Visa Program provides U.S. lawful permanent residence to 50,000 individuals each year from countries with historically low levels of immigration to the U.S.  Applications for the 2018 fiscal year were open from October 1 - November 3, 2016.

Considerations for Applying for Naturalization

Based on the rapid changing immigration landscape many Lawful Permanent Residents (“green card” holders) are seeking to obtain the benefits of U.S. citizenship through the naturalization process.  Lawful Permanent Residents who are eligible for U.S. citizenship are afforded equal protection under U.S. laws regardless of their birth in another country.  

In order to be eligible for naturalization the applicant must:

  1. Be at least 18 years old at the time of filing;
  2. Possess Lawful Permanent Resident status (“green card”) for the last 5 years, or for the last 3 years if married to a U.S. citizen;
  3. Live in a state where you claim residence for at least 3 months prior to filing;
  4. Be physically present in the U.S. for at least half the time of the residency requirement (i.e. 30 of the last 60 months or 18 of the last 36 months if married to a U.S. citizen);
  5. Have no continuous absence of more than one year from the U.S., irrespective of the protection of a re-entry permit or SB-1 visa;
  6. Have filed U.S. income tax returns each year after becoming a lawful permanent resident;
  7. Have basic knowledge of U.S. history and government and the ability to read, write, speak, and understand basic English;
  8. Have good moral character (meaning you are not a habitual drunkard; polygamist; a person associated with prostitution, narcotics, or illegal entry of aliens; convicted of a crime of moral turpitude or of two or more non-political offenses for which the sentence imposed was 5 years or more; a gambler; committed an immigration fraud; convicted of murder or an aggravated felony; a non-support of dependents).