Tag: Immigration

What is the Diversity Visa Lottery?

The Diversity Immigrant Visa Program provides up to 55,000 immigrant visas (green cards) for issuance in Fiscal Year 2021 to persons from countries with low immigration rates to the United States. 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.

When can I apply?

The U.S. Department of State will accept applications online from 12 PM Wednesday October 2, 2019 Eastern Daylight Time (EDT) (GMT-4) to 12 PM Tuesday, November 5, 2019 Eastern Standard Time (EST) (GMT-5). DV-2021 applicants are encouraged to apply as soon as possible and should keep their confirmation number until at least September 30, 2021. There is no cost to submit an application.

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 (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, 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 entries may only be submitted electronically at the U.S. Department of State’s Diversity Visa Lottery website located here. 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.

New For DV-2021

The principal applicant must enter valid international travel passport information unless 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.

• Starting May 5, 2020 (and through at least September 30, 2021), applicants may check application status using their confirmation number on the Entry Status Check section of the E-DV website. Lottery winners will not receive correspondence in the mail.
• Selection in the DV Lottery does not automatically confer U.S. Lawful Permanent Resident (LPR) status – only the opportunity to apply for permanent resident status.
• Applications for permanent resident status can be lodged in one of two ways: 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, 2021; if an application is not approved by that date, the application is invalidated.  Note that 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. LPRs 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 FY2021 Diversity Visa Lottery may be obtained from the U.S. Department of State’s PDF instructions.

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

H-1B cap-subject visa petitions filed and approved by U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2020 take effect on or after October 1, 2019. Next steps for employers may include Form I-9 Reverification and taxes for F-1 and J-1 Non-Immigrants.

Change of Status Filings

Approved H-1B cap-subject petitions filed as “change of status” automatically take effect on October 1 if the beneficiary:

• was physically present in the U.S. for the entire period from the date the petition was received through the date the petition was approved; and
• is physically present in the U.S. on October 1, 2019 for the change of status to take effect

With the exception of Canadian citizens, a beneficiary departing the U.S. must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in valid H-1B status. U.S. consulates require a personal interview to apply for a visa and most have a wait period of several weeks to schedule an interview. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and visa processing. Visa applicants should also be aware that U.S. consulates do not guarantee a specific timeframe for visa processing as there can always be additional delays such as “administrative processing” (i.e., background and/or security checks), which may delay processing for 2 weeks to 8 weeks or more.

Consular Notification Filings

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps For Employers

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9 for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: There are numerous H-1B cap petitions still pending and USCIS has stated that approval by October 1 is not guaranteed. As such, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2019.

The current version of Form I-9 expires on August 31, 2019.  The Department of Homeland Security has issued guidance instructing employers to continue to use the current version of Form I-9 until further notice. Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States.

On July 24, 2019, U.S. Citizenship and Immigration Services published a final rule making significant changes to the employment-based, fifth preference (EB-5) immigrant investor classification and associated regional centers.  The EB-5 program permits individuals to apply for permanent residence in the U.S. if they make the necessary investment in a new commercial enterprise in the U.S. and create 10 full-time jobs for qualified U.S. workers.   Regional Centers are economic enterprises designated by USCIS for participation in the Immigrant Investor Program.

The new EB-5 rule:

• Increases minimum investment amounts to $900,000 (from $500,000) in Targeted Employment Areas (TEAs), and from $1 million to $1.8 million in all standard areas. Additionally, the final rule provides that investment amounts are subject to additional increases in the future every five years, to be tied to inflation per the Consumer Price Index for All Urban Consumers (CPI-U).
• Changes how Urban TEAs are defined and designated. Under the final rule, TEA designations will now be determined by the Department of Homeland Security, and state and local TEA determinations will no longer be accepted.
• Provides priority date retention for subsequent EB-5 investor petitions where 1) the investor has a priority date set by a previously approved I-526 Immigrant Petition by Alien Entrepreneur and 2) the investor is reapplying due a failing investment project, termination of a regional center, or a backlog of visa applications.
• Clarifies procedures for the removal of conditions on permanent resident status, including situations where dependent family members must file their own I-829, Petition to Remove  Conditions on Permanent Resident Status.  By way of background, entrepreneur investors are initially granted conditional permanent resident status for two years, and must petition to have the conditions on status removed within a prescribed period.

The new rule will take effect November 21, 2019. Investors seeking to be “grandfathered” in under the old rules must file an I-526 petition  with USCIS before the new rule’s effective date.

Notably, the current EB-5 Regional Center program expires at the end of the government’s fiscal year on September 30, 2019.  Congress is currently considering  reauthorization of the program. If the program is reauthorized with substantive policy and legislative changes, it is possible that the final rule described above may not take effect.

Gibney will continue to monitor this matter and advise of developments. For additional information, please contact your designated Gibney representative or email info@gibney.com.