Tag: Immigration

WHAT IS THE DIVERSITY VISA LOTTERY?

The Diversity Immigrant Visa Program (DV Program) provides up to 55,000 immigrant visas (aka permanent residence or green cards) for issuance in Fiscal Year 2023 to persons from countries with low immigration rates to the U.S. Foreign nationals are selected for eligibility to apply for U.S. Lawful Permanent Resident (LPR) status under this program on the basis of a lottery. The DV Program is administered by the U.S. Department of State, and there is no cost to register.

WHEN CAN I APPLY?

The online registration period for the DV-2023 Program began on Wednesday, October 6, 2021 at 12:00 p.m. noon, Eastern Daylight Time (EDT) (GMT-4), and concludes on Tuesday, November 9, 2021 at 12:00 p.m. noon, Eastern Standard Time (EST) (GMT-5). Individuals who submit more than one entry during the registration period will be disqualified. Applicants are encouraged to apply as soon as possible.

WHO IS ELIGIBLE?

• An individual must have been born in an eligible country and must meet minimum education/work requirements. Notably, natives of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (including Hong Kong), Colombia, Dominican Republic, El Salvador, Haiti, Honduras, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, Great Britain (United Kingdom, except Northern Ireland) and its dependent territories, Venezuela, and Vietnam. Natives of Macau SAR and Taiwan are eligible.
• Eligible nationality is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a eligible country may apply provided that both the individual and the spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible to apply may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.
• A foreign national must also have either a high school education or its equivalent or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience.

HOW DO I APPLY?

DV Lottery applicants may submit the Electronic Diversity Visa Entry Form online at dvprogram.state.gov. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified. A DV Lottery application must be accompanied by digital photographs of the applicant, the applicant’s spouse and the applicant’s dependent children (as applicable), taken in accordance with requirements. Note: Each individual may submit his/her own application if he/she otherwise qualifies.

The principal applicant must also enter valid international travel passport information unless they meet the requirements for an exemption. An exemption may apply if they are stateless, a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or the beneficiary of an individual waiver approved by the Secretary of Homeland Security and the Secretary of State.

HOW DOES THE SELECTION PROCESS WORK?

• DV Lottery winners are selected via a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application.
• All DV-2023 entrants must go to the Entrant Status Check website using the unique confirmation number from the online registration to find out whether their entry has been selected in the DV P
• Entrant Status Check will be available at dvprogram.state.gov from 12 p.m. noon Eastern Daylight Time (EDT) on Saturday, May 7, 2022, through at least September 30, 2023. Lottery winners will not receive correspondence in the mail.
• Selection in the DV Lottery does not automatically confer U.S. Lawful Permanent Resident (LPR or green card) status – only the opportunity to apply for LPR

HOW DO I APPLY FOR PERMANENT RESIDENCE IF I AM ELIGIBLE?

Applications for permanent resident status can be completed by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. The actual application for permanent resident status must be filed and approved by September 30, 2023; if an application is not approved by that date, the application is invalidated.  Note: more individuals are selected in the DV Lottery than there are immigrant visas/green cards made available. As a result, some individuals who are selected in the DV Lottery may ultimately be unable to become U.S. legal permanent residents if the available immigrant visas are allocated prior to approval of the individual’s permanent resident application.

WHERE CAN I GET MORE INFORMATION?

Instructions regarding how to apply for the FY2023 Diversity Visa Lottery may be obtained from the official U.S. Department of State website at dvprogram.state.gov and at DV-2023 Program Instructions.

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

The American Immigration Lawyers Association and a litigation partner have brought a class action lawsuit on behalf of H-4 and L-2 spouses who have applied for work authorization as the dependents of H-1B and L-1 principal visa holders.

The lawsuit seeks to overturn USCIS policies that:

• require an L-2 spouse to apply for an Employment Authorization Document (EAD) for employment, and,
• prohibit an H-4 or L-2 spouse from receiving  an automatic extension of their EAD while  a renewal application is pending.

The complaint alleges that USCIS policies and processing delays have forced tens of thousands of nonimmigrant H-4 and L-2 spouses out of employment by creating gaps in their work authorization. The lawsuit also alleges that, per regulation,  L-2 spouses are authorized to work incident to status and should not be required  to apply for a separate EAD for employment.  Under current policy, an H-4 or L-2 EAD holder must apply for an EAD to work, and must cease working when their EAD expires even if an EAD renewal application is timely filed. Official USCIS posted processing times for these applications currently range from 10 to 15 months.

The lawsuit asks the court to declare the USCIS policies unlawful and to compel USCIS to

• provide L-2  spouses with evidence of employment incident to status, or, in the alternative, provide L-2 EAD holders with documentation establishing an automatic extension of work authorization with the filing of an EAD renewal application; and
• provide H-4 EAD holders with documentation establishing an automatic extension of work authorization with the filing of an EAD renewal application.

The case is Shergill, et al. v. Mayorkas, Case 2:21-cv-01296, 9/23/21  in the U.S. District Court for the Western District of Washington.

The U.S. Department of Homeland Security (DHS) has designated Croatia for inclusion in the Visa Waiver Program (VWP).  Eligible Croatian nationals who have an electronically readable passport (e-Passport) and who have obtained pre-authorization for travel through the Electronic Screening System for Travel Authorization (ESTA) system will be eligible to enter the U.S. for business or tourism without a visa for a  period of up to 90 days.  DHS is expected to update the ESTA system to include Croatia by December 1, 2021.   Croatia joins a list of 39 countries designated for participation in the VWP.

Croatia is not subject to the COVID-related regional travel plans, and no National Interest Waiver is required to enter the U.S. after a period of stay in Croatia.  Notably, however, the Biden administration intends to lift the regional travel bans in November, and replace the bans with a global COVID-19 vaccination requirement for all international travelers.  Travelers from Croatia will be subject to the global vaccination requirement once implemented.

For additional information concerning travel under the VWP, please contact your designated Gibney representative or email info@gibney.com.

 

The American Immigration Lawyers Association and various news outlets are reporting that, effective early November 2021, the Biden administration intends to:

• Rescind the regional COVID-19 travel bans restricting travel to the U.S. from China, Iran, the Schengen Area, the United Kingdom, Ireland, Brazil, South Africa, and India.
• Replace the regional travel bans with a global requirement that all foreign national travelers provide proof of full vaccination against COVID-19 and proof of a negative COVID-19 test taken within 3 days prior to boarding a flight to the U.S. Limited exceptions may be made for children ineligible for a vaccine and for humanitarian considerations if an individual lacks access to a vaccination but has a critical reason to travel.

Additional Information

The official policy has not been released as of the publication of the this alert. However, the administration has shared the following information with the American Immigration Lawyers Association (AILA):

• Starting in early November, foreign nationals traveling to the U.S. will be required to be fully vaccinated against COVID-19 and to show proof of vaccination prior to boarding an airplane.
• The current requirement for everyone to show proof of a negative test taken within 3 days of boarding a flight to the U.S. will remain in place for all fully vaccinated travelers.
• American citizens and permanent residents who are not vaccinated will be required to have a COVID-19 test taken within 1 day of  a flight to the U.S. rather than 3 days.
• The new requirements will apply globally as the U.S. moves toward a consistent, stringent requirement for all international air travelers coming to the U.S.
• The Centers for Disease Control (CDC) will publish guidance concerning testing requirements and  which vaccines will be accepted. The CDC will also issue a Contact Tracing Order that will require airlines to collect comprehensive contact information for every passenger coming to the United States and to provide that information promptly to CDC upon request, to follow up with travelers who have been exposed to COVID-19 variants or other pathogens.
• The policy will apply globally to all international air travel to the U.S.  Restrictions on non-essential travel at the land borders to the U.S. will remain in place at least through October 21, 2021. The administration is not updating its land border policies at this time.
• Exceptions to the international air travel requirements will be very narrow and may include children not eligible for a vaccine and individuals lacking access to a vaccine in a timely manner. Such individuals must agree to be vaccinated upon arrival in the U.S.
• Requirements for National Interest Exemptions for travelers from the current travel restricted regions will remain in place until the regional travel bans are rescinded and the new travel requirements are implemented in early  November.

Although not effective until early November, the administration has announced its intended policy now to give the various impacted government agencies such as the Department of Homeland  Security, the Federal Aviation Administration, and the CDC time to develop the directives and processes to implement the required changes and to provide airlines and businesses an opportunity to plan ahead for international travel contemplating the new requirements.

Gibney is monitoring this matter closely and will provide updates and more detailed information and guidance when the implementing policy guidelines are released.   In the interim, for additional information concerning travel restrictions to the U.S., please contact your designated Gibney representative or email info@gibney.com.

Effective October 1, 2021, by order of the Centers for Disease Control (CDC),  USCIS and the U.S. Department of State will require individuals applying for permanent resident status to be vaccinated for COVID-19, with limited exceptions.  Refugees are also covered by the order.  Proof of full COVID-19 vaccination will be required along with the other vaccination requirements already in place in connection with green card applications.

Who is Impacted?

• A foreign national filing an Application to Adjust Status (I-485)  and completing the required I-693, Medical Examination with a designated USCIS Civil Surgeon or after October 1, 2021 must be vaccinated.
• A  foreign national applying for an immigrant visa at a U.S. consulate abroad and undergoing a physical examination with a designated Panel Physician on or after October 1, 2021  must be vaccinated.

If the medical exam is completed before October 1, 2021, and the exam results are within the validity period (typically 2 years from completion with some exceptions), COVID-19 vaccination is not required.

Exemptions

Blanket waivers of the vaccination requirement are available if

• The vaccination is not age appropriate.  This includes applicants younger than the lowest age limit for the approved COVID-19 vaccine formulations in use.
• The vaccination is medically contraindicated.
• The applicant does not have access to one of the approved COVID-19 vaccines in their country.

In all instances, the request for exemption must be documented.

Applicants may also apply for an individual waiver of the vaccine requirement on religious or moral grounds. USCIS will make the determination as to whether an individual waiver will be granted. If the wavier is denied and the individual is not vaccinated, the individual will be deemed inadmissible, and ineligible for lawful permanent resident status.

Proof of Vaccination and Associated Requirements

Approved COVID-19 vaccines  are those authorized for emergency use by the U.S. Food and Drug Administration  or those  listed for emergency use by the World Health Organization.

Written documentation proving vaccination is required. This may include:

• An official vaccination record.
• A medical chart with physician entries pertaining to the vaccination.
• Appropriate medical personnel attestation.

An individual’s personal attestation that they have been vaccinated is not sufficient.  Additionally, an individual may not be exempted from the vaccination requirement on the basis of testing that establishes immunity  or recovery from prior COVID-19 infection.

Finally, keep in mind that proof of vaccination does not exempt international travelers from the requirement to present proof of a negative COVID-19 test prior to boarding an international flight to the U.S.

For additional information about this emerging requirement, please contact your designated Gibney representative or email info@gibney.com.

USCIS conducted a second lottery for the fiscal year (FY) 2022 H-1B cap on July 28, 2021 and has notified employers that additional registrations have been selected.  Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period running from  August 2, 2021 to November 3,  2021.

USCIS conducted its initial  H-1B cap lottery  in March 2021, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery was conducted because the number of H-1B petitions ultimately submitted and  approved during the initial H-1B filing period (April 1, 2021 to June 30, 2021) were not sufficient to meet the annual statutory H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the July lottery was conducted from this reserve. USCIS has not announced how many additional registrations were selected from the reserve.

What This Means for Employers and Foreign Nationals:

• Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
• Only employers with selected registrations may file H-1B cap-subject petitions for FY 2022 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
• An H-1B cap-subject petition for a selected registration must be properly filed at the designated  service center and within the filing period(August 2, 2021 to November 3, 2021)  specified on the relevant registration selection notice.
• Online filing is not available for H-1B petitions. Petitioners must file by paper and must include a printed copy of the applicable registration selection notice with the FY 2022 H-1B cap-subject petition.
• Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
• Petitioners filing H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

For more information, please contact your designated Gibney representative or email info@gibney.com.