Article From http://www.millermayer.com

August 6, 2000 Immigration News Update
Click for a Printable Version of this Article

Business Immigration News Update 
from True, Walsh & Miller 
August 6, 2000

  1. H-1Bs Capped at March 17 
  2. Labor Dept. Proposes Labor Certification Backlog Reduction 
  3. INS Halts Adjudications During Audit 
  4. New Web Listing for U.S. Visa Application Fees 
  5. State Department Announces Instructions for Next Visa Lottery 
  6. The Firm Writes


1. H-1Bs Capped at March 17
The Immigration and Naturalization Service (INS) has advised that it has reached the 115,000 H-1B limit for fiscal year 2000. Only cases filed March 17, 2000 or earlier have been included in the adjudications for the current fiscal year. Between March 18 and July 20,the INS received 29,500 H-1B applications that will be counted against the fiscal year 2001 cap.

The 2001 fiscal year begins October 1, 2000.  The H-1B cap for fiscal year 2001 will be 107,500, less than this year. The INS plans to begin processing fiscal year 2001 applications soon.

Legislation is pending in Congress to raise the H-1B cap.  Because Congress is out of session all this month, however, no legislation can be passed until September at the earliest.

2. Labor Dept. Proposes Labor Certification Backlog Reduction
The Department of Labor (DOL) has issued a long-awaited proposed rule that would allow employers to convert certain pending "traditional" labor certification applications into expedited "reduction in recruitment"-type cases while preserving the original priority date.  The proposal is geared toward reducing the backlog of permanent labor certification applications.

Under the proposed rule, an employer could request that a pending traditional labor certification application be processed instead as a reduction in recruitment request as long as the application was filed on or before July 26, 2000, and has not yet been sent to the regional DOL office or had recruitment conducted.  Such conversion requests would have to be accompanied by documentary evidence of good faith recruitment within the six months immediately before the date of the request.

Comments on the proposed rule are due August 25, 2000.  We will provide a summary of this important rule in our next newsletter.

3. INS Halts Adjudications During Audit
All INS offices--Service Centers and District Offices--are conducting an audit in which all pending forms in INS' possession are being inventoried. This involves opening every file in each office and counting each pending form. The impact of this will be a slowdown processing of cases at the Service Centers. The exception will be permanent residence age-out cases, which will be processed on an "off-line" basis. The impact on the District Offices will vary from district to district, with some offices stating that no cases will be processed for the next month or two.

This is only a "run-through" audit. A similar but smaller scale run-through audit was conducted in May. The "real" audit will be conducted at the end of September, and therefore a similar processing halt is expected at that time.

The INS has stated that the purpose of these audits, which are termed deferred revenue audits, is to enable the INS to determine the dollar value of items not yet completed in order to try to recapture appropriations from the user fee account to cover the cost of adjudicating the entire backlog of cases.

4. New Web Listing for U.S. Visa Application Fees
The U.S. State Department has recently added a visa reciprocity table to its official consular affairs web site. You'll find it at http://travel.state.gov/reciprocity/index.htm

Visa fees are based on "reciprocity," what another country charges a United States citizen for a similar type of visa.  The United States strives to eliminate visa issuance fees wherever possible.  However, a number of foreign governments impose such fees for certain types of visas. The United States will impose a "reciprocal" fee whenever a foreign government charges for visas.

It's important to understand the distinction between a visa "issuance" fee and a visa "application" fee.  Most non-diplomatic and non-official visas issued by United States consular officers abroad require a visa "application" fee that recovers for the United States the costs associated with manufacturing, processing, and printing the visa. The current visa "application" fee is $45.00.

Most visa applicants (visitors, students, temporary workers, etc.) are charged this $45.00 visa "application" fee even if there is no visa "issuance" fee. So, when you are looking at one of the country reciprocity schedules, don't forget that an additional $45.00 visa "application" fee should be factored into the overall total cost of the visa.

To use the reciprocity tables, visit the web site above, and click on the letter that begins the country's name. Then, click on the country. The information contained at this site reflects the most recent reciprocity schedules and availability of country documents.
Thanks to Ellen Badger of Binghamton University for bringing this information to our attention.

5. State Department Announces Instructions for Next Visa Lottery
The State Department announced instructions this week for the diversity visa lottery program for fiscal year 2002. The following are excerpts from that announcement:

Section 203(c) of the Immigration Act of 1990 makes available up to 55,000 permanent resident immigrant visas each year by random selection through a Diversity Visa lottery (DV-2002). The DV-2002 registration mail-in period will be held between noon on Monday, October 2, 2000 and noon on Wednesday, November 1, 2000. Please note several important changes in requirements and eligibility described below.

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 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.

Who is not eligible?

Persons born in "high admission" countries are, in most instances, not eligible for the program. For DV-2002, the "high admission" countries are: Canada, China (mainland born and Macau), Colombia, the 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, Taiwan, and Northern Ireland are eligible to apply for the DV-2002 lottery.

Have the requirements changed since last year's registration?

The address for submitting DV applications has changed. Applicants must mail their entries to the Kentucky Consular Center at the following address:
          DV-2002 Program           
          Kentucky Consular Center           
          Lexington, KY zip code (see below)           
          U.S.A.
The zip codes are as follows:
Africa: 41901           
Asia: 41902           
Europe: 41903           
South America/Central America/Caribbean: 41904           
Oceania: 41905           
North America: 41906

Entries mailed to any address other than the Kentucky Consular Center address will be disqualified.

There are also changes in the list of eligible DV countries from last year's lottery - natives of Poland and Taiwan are eligible and natives of Pakistan are not eligible for DV-2002.

What are the requirements to enter?

All applicants 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 within the past five years have two years of work experience 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 and the name of the applicant's spouse and children (if any);
  • The date and place of birth for both the applicant, the spouse (husband or wife, even if separated, and even if the spouse does not plan to immigrate), and any minor, unmarried children under age 21 (all minor, unmarried children must be listed on the principal applicant's entry, regardless of whether they wish to immigrate and regardless of whether they are the natural children, the spouse's children by a previous marriage, or children formally adopted by the principal applicant);
  • The applicant's mailing address and, if possible, a telephone number;
  • The applicant's native country if it differs from the country of birth;
  • A recent (preferably less than 6 months old) photograph (1 1/2 inches by 1 1/2 inches) of the principal applicant with the applicant's name printed across the back of the photograph. (The photograph should be taped to the entry with clear tape, not attached by staples or paper clips that can jam the mail processing equipment.);
  • The applicant must also personally sign the entry using his or her usual and customary signature in the native language, regardless of whether the entry is prepared and submitted by the applicant or someone else. Photocopied signatures are not acceptable. (Only the principal applicant, not the spouse and children, needs to submit a signature and photograph.) Any entry that is not personally signed by the applicant will be disqualified.

This information must be sent by regular mail or airmail to one of six postal addresses in Lexington, Kentucky. Applicants must use the correct postal zip code designated for their native region. The entry must be mailed in a standard letter or business-size envelope with the applicant's native country, full name, and complete mailing address typed or clearly printed in the English alphabet in the upper left-hand corner of the envelope. Postcards are not acceptable.

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.

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. 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 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 2002 begins on October 1, 2001 and ends on September 30, 2002) 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. However, if applicants prefer to use outside assistance, 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 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.

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 July 2001, 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 INS for adjustment of status to permanent resident. However, such applicants must ensure that INS can complete action on their cases before September 30, 2002. Once all available visas have been issued, the DV Program for fiscal year 2002 will end. In any event, all DV-2002 visas must, by law, be issued by September 30, 2002.

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-2002 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.

6. The Firm Writes
Steve Yale-Loehr has written an overview article about EB-5 immigrant investors.  The article can be found on our web site at: click here
_________

That’s it for this issue. For answers to any of your immigration questions, contact Hilary Fraser (htf@millermayer.com), Rosie Mayer (rma@millermayer.com), or Steve Yale-Loehr (syl@millermayer.com) at True, Walsh & Miller. 




The contents of these web pages are provided for general informational purposes and do not constitute legal advice for specific cases, which should only be obtained from an attorney.

Copyright © 2002 True, Walsh & Miller, LLP. Attorneys at Law
The Commons, 202 East State Street, Ithaca, New York 14850
phone: 607-273-4200, fax: 607-272-6694, E-mail: twm@twmlaw.com