2011 Diversity Lottery Program Registration
Through the Congressionally mandated diversity lottery program, the U.S. State Department provides up to 55,000 immigrant visas (green cards) to immigrants from countries with low rates of immigration to the U.S. For DV-2011, natives of the following countries may not participate: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and Vietnam. Persons wanting to participate must register for the program between October 2, 2009 and November 30, 2009 by completing the required on-line form at: www.dvlottery.state.gov. Persons eligible to participate in the next step of the process will be assigned a lottery number sometime between May and July of 2010. The available immigrant visas will then be allocated among the winners in the order that the lottery numbers are assigned, and with consideration given to diversity concerns based on geographic region.
There is no cost in applying for the lottery, and it may also provide a foreign worker with an additional chance to immigrate to the U.S. Because all lottery based cases must be completed within the given fiscal year, the program also moves quickly. Now that it can take 5-7 years or longer for a foreign worker to complete the immigrant visa process based on an employer’s sponsorship, it may be wise for eligible foreign workers to apply for the alternative possibility of immigrating through the diversity lottery program.
At a speech in Los Angeles on September 23, 2009, the New USCIS Director, Alejandro Mayorkas, recently mentioned that his agency may soon increase user fees in order to close a $118 million revenue shortfall. The agency is required by law to be self supporting. Rather than cut staffing level or look for other ways to operate more efficiently, it appears that the agency’s first reaction is to increase an already high burden on the companies and individuals who use its services. In 2007, USCIS significantly raised many of the case filing fees. For some case types, the fees increased by as much as 70%. This was supposed to help the agency to retool by updating its technology to become more efficient. While it has made some progress in that regard, it has also wasted much of those funds by greatly expanding its staffing levels even though the number of cases it receives has fallen in recent years due to a combination of the slower economy and the inability of many to afford the new fees. With a larger staff but fewer cases, the agency has squandered its resources by sending more RFE (requests for additional evidence) on cases that previously would have been properly adjudicated without the burden of submitting additional justification. The high fees, increased RFE load, and rising denial rate for some case types, has led to increased efforts by corporate sponsors of foreign workers to avoid using USCIS services if at all possible by pursuing processes that can be requested directly from U.S. consulates abroad, which operate outside of the realm of the USCIS regional service centers. The L-1 intracompany transferee program has suffered the most under these new changes to the point that it has become an almost unusable sponsorship category. At some point, USCIS may come to a better understanding of the reality that high prices and poor service lead to fewer customers.
In 2004, USCIS created its FDNS (Fraud Detection and National Security) team to weed out fraudsters and terrorists. FDNS is currently staffed by approximately 650 staff members spread throughout the U.S. Although the work of FDNS teams covers all application and petition categories adjudicated by USCIS, the FDNS budget is primarily derived from the $500 anti-fraud fee paid by employers who sponsor H-1B and L-1 workers.
USCIS is believed to have transferred approximately 40,000 H-1B cases to FDNS units around the country. The FDNS staff has been further augmented through the use of private contractors to conduct H-1B and L-1 employer site visit, with the result that it is becoming more common for companies that sponsor H-1B and L-1 workers to receive site visits from representatives of the immigration service. The representatives will normally work from a prepared checklist, and will usually ask to speak with an HR representative as well as the foreign worker in order to confirm that the sponsored worker is working at the authorized work site, is performing the job duties listed in the petition, and is being paid at least the prevailing wage listed on the petition. The FDNS teams seem to be focusing more intently on companies that have 25 or fewer employees, that have been in business for less than 10 years, and that have less than $10 million in gross revenues.
Be prepared! A company can minimize the potential for a compliance failure, or a misunderstanding that could be viewed by the government as a compliance failure, by having a comprehensive immigration policy in place. Such a policy should include file creation, maintenance, and handling procedures regarding the company’s labor condition application public access files, PERM audit files, and Forms I-9. In addition, the Company should have at least one compliance czar designated as the go to contact for any issues regarding the company’s immigration compliance matters. The company receptionist, and others working in the front office, should be familiar with the company’s policy for addressing unannounced visits by any government representatives inquiring into the company’s immigration matters, including USCIS, ICE, DOL or even the EDD. The czar should also already know in advance of a visit, what sort of information or documents the company will release, if any, in the absence of a court ordered warrant. Although it is the common practice of government visitors to provide business cards when visiting, the czar should be sure to remember to obtain the government representative’s full name and contact information, including e-mail, telephone, fax, physical office address, and the name of his or her supervisor. In addition, immigration counsel should be immediately contacted.
Additional policy considerations may include: whether the company has a policy of having at least one witness (and possibly corporate counsel or an outside attorney) present during any communications made to a government representative, the extent to which government representatives will be allowed access to secure areas in the business premises, the company policy regarding the taking photographs of such areas, and the steps that the company will take to prevent the release of confidential or proprietary information to an imposter posing as a government agent.
E-Verify is an electronic system established by the Department of Homeland Security and Social Security Administration to assist employers in verifying employment eligibility for new hires. The most controversial aspect of the E-Verify program is the requirement that the company sign a Memorandum of Understanding (MOU) granting the government almost unlimited access to company records and personnel.
Federal contracts awarded after September 8, 2009 will contain a clause requiring the contractor to enroll in the E-Verify program within 30 days of the contract award date. Contracts exempt from this rule include contracts for less than $100,000, contracts for commercially available off the shelf products, contracts for agricultural products, contracts performed entirely outside the U.S., and contracts lasting for 120 days or less. Subcontracts over $3,000 for services or construction are also subject to E-Verify if the primary contractor is subject, regardless of how many layers exist in between the principal contractor and the subcontractor. USCIS has posted additional information at: http://www.uscis.gov
In addition, 22 states now have E-Verify related rules. In some states, all employers must use the program while in other states only contractors or subcontractors receiving state funds are subject.