What is the Diversity Visa?

What is the ‘Diversity Visa’?

Basically, the Diversity Visa ‘Lottery’ is a program that provides an opportunity for individuals from countries that do not have many immigrants in the U.S. to apply for a ‘green card’.

Here is clarification on some of the issues associated with the Diversity Visa Program:

1.       Individuals from only certain countries are eligible to apply for a Diversity Visa.  The U.S. Department of State uses a complicated formula to determine which countries have low admission rates to the U.S. over the preceding 5 years.  Thus, the countries on the list change as the formula is applied each year.  Persons from those countries with the fewest numbers are eligible to participate.

 

2.       It really is a ‘Lottery’.  Persons from the listed countries can apply once in a year to participate in the Lottery, and like any lottery, it is a random selection process that is very difficult to win.  In 2015, there were 14.5 million applications for only 50,000 visas, so the odds of being randomly selected is very remote.

 

3.       There is no guarantee that you get a ‘green card’.  If a person is randomly selected, it does not mean that he or she gets a ‘green card’; it only means that the person can then apply for a ‘green card’.  A person must still meet certain education or work experience criteria to get a ‘green card’.  In addition, the person must, like all other ‘green card’ applicants, go through a background check, meet health and financial criteria and be vetted before going for an in-person interview at the U.S. Embassy in their country to see if the person is admissible into the U.S.  If the person passes the interview, he or she will get an ‘immigrant visa’ in his or her passport, but still must be examined at the U.S. border before he or she can be admitted.  Furthermore, if the person does not use the immigrant visa within one year, it is terminated and he or she will not be admitted.

It is important to recognize that the formal name of that program is the ‘Diversity Visa’ program because that explains its purpose.  Here’s why:

A Very Brief History

U.S. Immigration laws up until the 1952 McCarran-Walter Act operated on a system of quotas – allowing only a certain number of immigrants from each country to enter the United States.  This was preserved in the Act, but modified in subsequent amendments to open America’s borders to insure there was a variety of nations represented in the melting pot of America, (hence the ‘diversity’).  In what was then a mere quaint seed of globalization, our leaders recognized the importance of sharing ‘American Ideals’ with the rest of the world.   

As a consequence of the 1990 Act creating the program, anyone from anywhere in the world has a chance to fulfill his or her dream to come to the United States for a chance at a better life.  In return, the United States benefits from the traditional goal of sharing its values and ideals with persons from around the globe – not to mention the contributions that such motivated persons make to American culture, community and economy.

 

What About The Terrorist Attack in New York?

It has been widely reported that the suspect in the terrorist attack in New York arrived in the U.S. from the small country of Uzbekistan on one of these ‘Diversity Visas’ back in 2010.

The perverse and horrific actions of this individual are inexcusable.  And it is fair to inquire whether there was any inherent flaw in the Diversity Visa program that was somehow exposed by this perpetrator.  Given the random and slim odds that any one individual could win the visa lottery makes it an unlikely strategy for anyone intending to come to the U.S. for the purpose of causing harm; the fact that the suspect evidently has lived in the U.S. attempting to run a business while raising a family since 2010 makes the connection even more tenuous, and with no prior criminal background, it would make it difficult to have foreseen during his visa interview years ago that he might one day decide to inflict his terror on innocent people.  The fact that all but two of the persons killed by him were also immigrants from other countries visiting the U.S. makes his crime particularly sad and ironic.

 

HS&D Immigration Group

'Nipped in the Bud...

How Immigration Benefits for STEM graduates may get pruned

Because highly-sought H-1B visas are limited to only 65,000 each year, many highly-educated individuals seeking to work in the U.S. do not get a chance to secure work authorization in H-1B status.

Many of these applicants are foreign graduates of U.S. colleges and universities seeking work after graduation.

The greatest challenge for most of these graduates is a matter of timing. 

Here's why:

The allotment of 65,000 H-1B visas becomes available on the first day of the federal fiscal year, October 1.   However, one cannot apply for an H-1B visa more than 6 months ahead of time.  Thus, the first day someone can apply for an H-1B visa is April 1 of that same year.

Because of the intense demand for H-1B visas, U.S. Citizenship & Immigration Services, ('USCIS') typically receives more applications for H-1B status than there are available.  A whole lot more.  In fact, this past year, in April 2015, USCIS received nearly 3 times more applications than available H-1Bs.  In the first 5 days. 

USCIS will then typically hold a 'lottery' and randomly choose which H-1B petitions it will process.

Consequently, if you haven't filed your H-1B petition by April 5th, you're out of luck.  (Of course, even those who do get their H-1B petitions filed by then still may be arbitrarily denied a chance for an H-1B visa if his or her petition is not randomly chosen during the lottery.)

For graduates of U.S. colleges and universities, this poses a huge problem since most students graduate in May or June.  By the time they graduate, the H-1B application process has already shut down.  And since you must provide evidence of your educational qualifications, (e.g., a diploma), to apply for an H-1B visa, students are typically prevented from seeking an H-1B visa until April 1 of the following year.

Foreign students typically are allowed into the U.S. to study at U.S. colleges and universities with a 'student visa' - also known as an 'F-1' visa.

The final piece of the puzzle - if you haven't already considered it - is that the F-1 visa is valid only so long as the student is in a full-time course of study at a U.S. college or university.  When the program ends, (e.g., when a student graduates), then the student's F-1 visa status expires and the student must return to his or her home country.

Fortunately, there is an Option for these students to remain in the U.S. after their graduation.  It's technically an extension of the F-1 visa that allows the graduate to gain experience working in his or her field of study for one year following graduation.  This is called Optional Practical Training, (or 'OPT'). 

With OPT, a student can remain in the U.S. long enough to have the opportunity to file an H-1B petition during the next April's filing season.

In an effort to promote the workforce of highly-skilled technical employees, particularly for the technology sector, USCIS published a regulation in 2008 that permits an additional 17-month extension of OPT for individuals who graduate with a degree in one of the STEM areas, (Science, Technology, Mathematics and Engineering).  This would ostensibly give STEM graduates two chances to file an H-1B petition.

What's the Problem?

When the Department of Homeland Security published the regulation granting an additional 17-month extension of OPT, it did so without the customary 'Notice and Comment' period required of agencies wanting to promulgate new federal regulations.  It's argument was that the need to issue the regulations was so important at that time of year that it constituted extraordinary circumstances permitting it to avoid the Notice and Comment period.

Not everyone was enamored with these new regulations.  The Washington Alliance of Technology Workers concluded that it was harmed by the regulations, so it challenged the legitimacy of the 17-month STEM OPT extension, by filing suit in the Federal District Court for the District of Columbia.

The Federal Court ultimately agreed in August 2015 that the STEM OPT 17-month extension regulations were not properly promulgated and vacated the regulations - in effect saying that they should not be given any effect.  Nipped in the bud, if you will..

However, the Court also recognized the tumultuous consequence of instantly invalidating the work authorization of thousands of students working with STEM OPT 17-month extensions, so it stayed the vacatur of the regulations (postponed its effect) until February 12, 2016.

The Court stated:

     "The Court sees no way of immediately restoring the pre-2008 status-quo without    causing substantial hardship for foreign students and a major labor disruption for the technology sector.  As such, the Court will order that the 2008 Rule - and its subsequent amendments - be vacated, but it will order that the vacatur be stayed."   


It was anticipated that this delay would give the Department of Homeland Security enough time to go through a proper Notice and Comment period to validate these regulations.  However, on December 22, 2015, the Department of Homeland Security filed a Motion with the Court requesting additional time to complete the Notice and Comment period, train and educate personnel on the regulations.  The Motion requested that the stay remain in place until May 10, 2016.

As of today, the Court has not yet ruled on the Motion to extend the stay.  However, if the Motion is not granted, foreign graduates working under a 17-month OPT STEM extension may want to be prepared for the consequences on February 13, 2016.

Stay tuned for more information as it becomes available...

Finding Your Place In Line For A 'Green Card'

For many foreign nationals living in the United States waiting to apply for a ‘green card’, a daily routine is to log-on to the U.S. Department of State website to check the status of their ‘priority date’ on the State Department’s ‘Visa Bulletin’.  Those who logged in yesterday were surprised to see the publication of the October 2015 Visa Bulletin with an extra Priority Date table.  But what does it mean? 

It’s a fairly significant new development.

But to grasp its significance, let’s take a step back to look at the big picture.

The U.S. Department of State regulates the issuance of ‘green cards’ based upon the distribution of immigrant visas around the world.  Since the demand for ‘green cards’ by natives of some countries (such as China, Mexico and India) is greater than the demand from other countries, there are not enough immigrant visas to supply the demand from these oversubscribed countries.  Consequently, there is a backlog of ‘green cards’ for these natives.

 Foreign nationals who originate from these countries must therefore ‘stand in line’ to wait to apply for their ‘green card’.  Their place in line is determined by the date the person either filed an immigrant visa petition – or an employer filed a labor certification application on this person’s behalf.  This date is known as a ‘Priority Date’.

Each month the U.S. Department of State publishes a ‘Visa Bulletin’ that charts the Dates of ‘green card’ applications being processed.  If a foreign national’s own ‘Priority Date’ is a date that precedes the ‘Priority Date’ published in the Visa Bulletin, that person is then eligible to file an application for a ‘green card’.  For example, if a foreign national has a ‘Priority Date’ of October 3, 2011, and the Priority Date shown on the Visa Bulletin for that person’s category shows January 1, 2012, then that foreign national may then apply for a ‘green card’.

Until the individual’s Priority Date precedes the Priority Date published in the Visa Bulletin, one could not file an application for a ‘green card’.   Until now…

The October 2015 Visa Bulletin offered a pleasant surprise for many:  a new, second chart known as a ‘Filing Date’ Chart.  Under this new provision, the U.S. Department of State will allow foreign nationals to file a ‘green card’ application based upon a new ‘Filing Date’ – rather than waiting for the date previously referred to simply as the ‘Priority Date’.  For most visa categories, the ‘Filing Date’ is more recent than the older ‘Priority Date’ (which is now also referred to as the ‘Final Action’ Date).

What this means is that the ‘Final Action Date’ is the date that the U.S. Department of State will actually process the ‘green card’ application.  This generally corresponds with the previous ‘Priority Date’ charts to which we were accustomed.  In other words, the U.S. Department of State will still wait until the foreign national’s ‘Priority Date’ is current before making a decision on the application – but the individual may now file the application well beforehand – based upon the new ‘Filing Date’ chart.

 Why is this important?  Because when a foreign national gets to file an Application for a ‘green card’, she may also concurrently file an application for Employment Authorization and Advance Parole (the ability to travel while the ‘green card’ application is pending).  In other words, ‘green card’ applicants from the oversubscribed countries may get some of the benefits that accompany a ‘green card’ application while still waiting in line for their ‘green card’ application to be processed.

So for example, this is how it might work: a foreign national from China in the EB-2 category (professional holding an advanced degree) may have a ‘Priority Date’ of June 12, 2013 based upon a Labor Certification Application filed on her behalf.  The ‘Priority Date’ / (Final Action Date) published in the October 2015 Visa Bulletin shows the Priority Date for that category to be January 1, 2012.  In previous months, this person would have to continue waiting until the Visa Bulletin shows a Priority Date in that category after June 12, 2013, before she could file an application – which may be a year or more away.  However, the new Visa Bulletin now shows a second ‘Filing Date’ chart that shows a date of May 1, 2014.  Since the foreign national’s ‘Priority Date’ precedes this new ‘Filing Date’, she is eligible to go ahead and file the ‘green card’ application.  Even though it still will not be processed until her June 12, 2013 Priority Date becomes current under the ‘Priority Date / Final Action Date, she can nonetheless go ahead and file the application and get Employment Authorization and Advance Parole for a family member(s) while they continue to wait in line for her Priority Date to become current.

The U.S. Department of State also asserts that allowing these foreign nationals to apply ahead of time will allow the State Department to more accurately predict the future availability of immigrant visas that will need to be processed.  Based upon the recent wild fluctuations in the Priority Dates for some of these categories in the past year, this can only be a good thing.

So, at the end of the day, these foreign nationals will still have to wait in line, as before – but at least they get to snack on some fairly significant benefits while standing there.