Latest Updates in Immigration

• THE 2013 DIVERSITY IMMIGRANT VISA PROGRAM (DV 2013)




The Diversity Immigrant Visa Program is an annual program run by the Department of State whereby 50,000 Diversity Visas (DVs) are made available each fiscal year to persons from countries with a low rate of immigration to the U.S. Submissions must be made via an electronic registration system.

DOS instructions for the 2013 Diversity Immigrant Visa Program (DV-2013) have been published. This year, natives from South Sudan and Poland are eligible, while Bangladesh natives are ineligible. Entries for the DV-2013 program must be submitted electronically between noon (EDT) on October 4, 2011 and noon (EDT) on November 5, 2011. For more information, visit: http://travel.state.gov/visa/immigrants/types/types_1318.html

 

• H-1B Cap Update




As of January 14, 2011, approximately 60,700 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 20,000 H-1B petitions for aliens with advanced degrees.

 

• New Countries Eligible to Participate in H-2A and H-2B Programs




On January 14, 2011, USCIS announced that the Department of Homeland Security, in consultation with the Department of State, has identified 53 countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year.




The H-2A program allows U.S. employers to bring foreign nationals to the U.S. to fill temporary agricultural jobs. The H-2B program allows U.S. employers to bring foreign nationals to the U.S. for temporary nonagricultural jobs. These visa petitions are for nationals of countries designated by the Secretary of Homeland Security. A new list of eligible countries was published in the Federal Register on January 18, 2011. The designations are valid for one year from the date of publication.




The following countries are eligible to participate in the H-2A and H-2B programs:

Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico,

Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru,

Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.




This new list does not affect the status of individuals who currently hold valid H-2A or H-2B visas or status.

 

• United States Citizenship and Immigration Services Significantly Revises Form I-129 and Expands Information Gathering on Trade Compliance




As of December 23, 2010, a revised Form I-129, Petition for Nonimmigrant Worker, is required for petitions for the H-1B, L-1, O-1, P, and R classifications and extensions of stay or changes of status for E1/E2, or TN non-immigrants. The new form has been expanded to include several additional questions that the employer must answer.



In addition, employers petitioning for H-1B (including Chile/Singapore H-1Bs), L-1 and O-1A non-immigrants, must answer questions to confirm that the employer has reviewed any obligation they may under the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR). Specifically, the employer must confirm that a license is not required from the U.S. Department of Commerce or the U.S. Department of State for the release of technology or technical data to the foreign national beneficiary or that the beneficiary will not have access to such technology until the relevant license is obtained.



Although the new I-129 is already in effect, the section pertaining to the new EAR/ITAR requirements need not be completed by employers until February 20, 2011.



• U.S. CIS Increases Filing Fees
  
  

Effective November 23, 2010, U.S. CIS filing fees for most petitions and applications increased. The filing fee for Form N-400, Application for Naturalization, remain unchanged, however, the biometrics (fingerprint) fee increased to $85.

• Registration for the 2012 Diversity Immigrant Visa Program Now Open


The Diversity Immigrant Visa Program is an annual program run by the Department of State whereby 50,000 Diversity Visas (Dvs) are made available each fiscal year to persons from countries with a low rate of immigration to the U.S. Submissions must be made via an electronic registration system.



The online entry registration period for the DV‑2012 Diversity Visa lottery is between noon (EDT), Tuesday, October 5, 2010, and noon (EST), Wednesday, November 3, 2010. Entrants apply electronically, using the Diversity Visa Entry Form available only during the DV open registration period.



Click here for the DV‑2012 Lottery Instructions.




• Update on H-1B Cap Count for Fiscal Year 2011

  
  

  As of April 27 2010, approximately 16,500 H-1B cap-subject petitions were filed with the U.S. Citizenship and Immigration Services. Additionally, USCIS has issued receipts for 6,900 H-1B petitions for aliens with advanced degrees.



• State of Arizona Implements A New Controversial Enforcement Law

  
  

  In April 2010, Arizona Governor Jan Brewer, signed a new law which requires state and local law enforcement to check the documents of people they ‘reasonably suspect’ of being in the U.S. illegally. This new law has sparked controversy nationwide and has many avoiding travel to Arizona altogether.



• Supreme Court Requires Defense Attorneys to Advise on Immigration Consequences of Guilty Pleas

  
  

  On March 31, 2010, the U.S. Supreme Court issued a long-awaited decision finding that the Sixth Amendment requires criminal defense attorneys to advise non citizens of the immigration consequences of a guilty plea. The decision in Padilla v. Kentucky, 2010 WL 122274 (2010), arises from a post-conviction proceeding in which Mr. Padilla was trying to vacate his guilty plea based on ineffective assistance of counsel. Mr. Padilla had pled guilty to a drug trafficking charge after he was misadvised by his attorney that the plea would not affect his status as a permanent resident. Based on the Supreme Court’s decision, defense attorneys are now held to a much higher standard when representing non citizen clients.



• Temporary Protected Status (TPS) Available for Haiti

  
  

  On Jan. 15, 2010, Secretary of Homeland Security Janet Napolitano designated TPS for eligible Haitian nationals as a result of the catastrophic earthquake that occurred in Haiti on Jan. 12, 2010.

  
  

  The TPS designation for Haiti went into effect on January 21, 2010 and will remain in effect until July 22, 2011. The 180-day registration period ends on July 20, 2010. The TPS designation means that eligible Haitian nationals will not be removed from the United States and will also be eligible to apply to work in the United States.

  
  

  TPS is available only to those Haitians who resided in the United States on or before Jan. 12, 2010 TPS will not be granted to Haitian nationals who entered the United States after Jan. 12, 2010.

  
  

  Haiti joins El Salvador, Honduras, Nicaragua, Somalia, and Sudan as countries currently designated for TPS.



• U.S. Citizenship and Immigration Services Provide Guidance on "Appropriate" Employer-Employee Relationships for H-1B Purposes

  
  

  A recent USCIS Memo from Associate Director, Donald Neufeld, provides guidance regarding what are acceptable employer/employee relationships for H-1B purposes. Specifically, the memo advises that the key to establishing the relationship between employer and employee is whether the petitioner maintains the ‘right to control’ the ‘when, where and how’ the beneficiary performs the job. The memo distinguishes between ‘right to control’ and ‘actual control’.

  
  

  The memo seeks to clarify the definition of relationship for purposes of self-employed beneficiaries, yet it offers somewhat conflicting guidance on the issue. The memo notes that “USCIS acknowledges that a sole stockholder of a corporation can be employed by that corporation as the corporation is a separate legal entity from its owners and even its sole owner.” However, the memo also states that “an H-1B beneficiary/employee who owns a majority of the sponsoring entity and who reports to no one but him or herself may not be able to establish that a valid employment relationship exists in that the beneficiary, who is also the petitioner, cannot establish the requisite control.” Unfortunately, the memo ultimately provides a narrow interpretation of the definition of employer/employee relationship for H-1B purposes which will likely results in increased requests for evidence and denials of H-1B petitions in non-traditional employment scenarios.

Updated May 6, 2010