Diversity Visa Lottery Scams: Part III

What happens after I enter the Diversity Visa Lottery?

You enter the Diversity Visa Lottery at dvlottery.state.gov. Then the State Department gives you a confirmation number. Keep that number safe. You will need it to check your status.

Diversity Visa Lottery winners are picked at random by a computer. There is no way to increase your chance of being picked.

You can find out your status only at dv.lottery.state.gov. The State Department will never send you a letter or email to say you won. If you see that kind of message, it is a scam.

If your entry is picked, you will have to pay a fee. You pay it only when you go to the U.S. embassy or consulate for your appointment. The U.S. government will never ask you to send money in advance by check, money order, or wire transfer.

Secretary Napolitano Announces Final Rule to Support Family Unity During Waiver Process

On January 2, 2013, Secretary of Homeland Security Janet Napolitano announced the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at www.uscis.gov.

“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary Napolitano.

U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.  

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves,” USCIS Director Mayorkas said. “The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”

Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the U.S. and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.

In order to obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.

Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS. The new process will reduce the amount of time U.S. citizen are separated from their qualifying immediate relatives. 

USCIS to Extend Certain Programs Until Sept. 30, 2015

U.S. Citizenship and Immigration Services (USCIS) advises the public that Public Law 112-176, signed by the President on Sept. 28, 2012, extends the following USCIS programs until Sept. 30, 2015:

·         E-Verify

·         Immigrant Investor (EB-5) Pilot Program

·         Special immigrant visa category for non-minister special immigrant religious workers

·         The date by which J-1 nonimmigrant exchange visitors must obtain that status in order to qualify for the Conrad 30 program.

Program Details

E-Verify: E-Verify, an Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA), allows participating employers to electronically verify the employment eligibility of their newly hired employees.  More than 402,000 participating employers at nearly 1.2 million worksites nationwide currently use the program.  Since Oct. 1, 2011, more than 20 million employment verification queries have been run through the system and approximately 98.3 percent of all queries are now automatically confirmed without any need for employee action.

Immigrant Investor (EB-5) Pilot Program:  Under the Immigrant Investor Pilot Program, USCIS will continue to receive, process, and adjudicate all Regional Center Proposals, Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis. Currently, there are more than 70 regional centers throughout the United States.

Religious Worker Visa:  The special immigrant visa category for non-minister religious workers covers individuals within a religious vocation or occupation and also applies to accompanying or “following-to-join” spouses and children of these religious workers. USCIS will continue to receive and process Forms 1-360,  Petition for Amerasian, Widow(er), or Special Immigrant, Forms I-485, Application to Register Permanent Residence or Adjust Status,  and Forms I-824, Application for Action on an Approved Application or Petition, that relate to religious workers and their families covered by Public Law 112-176.

Conrad 30:  USCIS will continue to adjudicate immigration benefits covered by the Conrad 30 program.  The Conrad 30 program allows each state health department to submit a request directly to the Department of State to initiate the waiver process for a foreign medical graduate who obtained J-1 status to change to another status without the required two-year foreign residence.  The law previously required the foreign medical graduate to have acquired J-1 status before Sept. 30, 2012; the law now extends the program to cover J-1 admissions before Sept. 30, 2015.

USCIS Reaches Milestone for U-visas; Providing Relief to Victims of Crime

On August 21, 2012, U.S. Citizenship and Immigration Services (USCIS) marked a significant milestone in its efforts to provide relief to victims of crimes by approving the statutory maximum 10,000 petitions for U nonimmigrant status, also referred to as the U-visa.  This is the third straight year USCIS has reached the statutory maximum since it began issuing U-visas in 2008.

Each year, 10,000 U-visas are available for victims of crime who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities investigate or prosecute those crimes. A U-visa petition requires law enforcement certification of assistance in the investigation or prosecution of crimes.

“The U-visa is an important tool aiding law enforcement to bring criminals to justice,” said USCIS Director Alejandro Mayorkas. “At the same time, we are able to provide immigration protection to victims of crime and their families. Both benefits are in the interest of the public we serve.”

In recent years, USCIS has greatly expanded its public education and outreach effort through partnerships with law enforcement agencies and service providers. As part of this effort, USCIS officers have traveled to more than 40 cities, including Denver, New York City, Newark, and San Antonio, to train federal, state and local law enforcement agencies and immigrant-serving organizations on immigration protections available to individuals who are victims of human trafficking, domestic violence and other serious crimes.

The program was created by Congress to strengthen the law enforcement community’s ability to investigate and prosecute cases of domestic violence, sexual assault, human trafficking, and other crimes while at the same time offering protection to victims. More than 61,000 victims and their family members have received U-visas since the implementation of this program in 2008.

USCIS will continue to accept new petitions as they are received until the end of the current fiscal year, and will resume issuing U-visas on Oct. 1, 2012, the first day of fiscal year 2013 when new visas are available.

First Steps Toward an Immigrant Visa

The First Step toward an Immigrant Visa: Filing a Petition

As the first step, a sponsoring relative must file a Petition for Alien Relative, Form I-130 with the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS).

 In certain circumstances, a U.S. citizen living abroad can file an immigrant visa petition outside the United States.  

U.S. Sponsor Minimum Age Requirement

U.S. citizens must be age 21 or older to file petitions for siblings or parents. There is no minimum age for a sponsor to file petitions for all other categories of family based immigrant visas. However, a U.S. citizen or lawful permanent resident (LPR) must be at least 18 years of age and have a residence (domicile) in the U.S. before he or she can sign an Affidavit of Support, Form I-864 or I-864-EZ. This form is required for an immigrant visa for a spouse and other relatives of U.S. sponsors.

Is Residence in the U.S. Required for the U.S. Sponsor?

 Yes. As a U.S. sponsor/petitioner, you must maintain your principal residence (also called domicile) in the U.S., which is where you plan to live for the foreseeable future. Living in the U.S. is required for a U.S. sponsor to file the Affidavit of Support, with few exceptions.

USCIS Announces More Efficient Filing of Certain Waivers of Inadmissibility

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. Consular Officer, will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) Lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.

Currently, applicants experience processing times from one-month to more than a year depending on their filing location. This centralization will provide customers with faster and more efficient application processing and consistent adjudication. It is part of a broader agency effort to transition to domestic filing and adjudication; it does not reflect a change in policy or the standards by which the applications are adjudicated. Individuals filing waiver applications with a USCIS Lockbox will now be able to track the status of their case online.

The change affects filings for:

               Form I-601, Application for Waiver of Grounds of Inadmissibility

               Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal

               Form I-290B, Notice of Appeal or Motion (if filed after a denial of a Form I-601 or Form-212)

Applicants who mail their waiver request forms should use the address provided in the revised form instructions on the USCIS website. Applicants who wish to receive an email or text message when USCIS has received their waiver request may attach Form G-1145, E-Notification of Application/Petition Acceptance, to their application.

During a limited six-month transition period, immigrant visa waiver applicants in Ciudad Juarez, Mexico, will have the option to either mail their waiver applications to the USCIS Lockbox in the United States or file in-person at the USCIS office in Ciudad Juarez. USCIS is aware of the pending caseload for applicants in Ciudad Juarez and is taking proactive steps to work through these cases. USCIS will significantly increase the number of officers assigned to adjudicate the residual cases filed before June 4, and those filed during the interim six-month transition period. USCIS has already begun to test this process and has transferred applications from Ciudad Juarez to other USCIS offices in the United States.

This change is separate and distinct from the provisional waiver proposal published in the Federal Register on Mar. 30, 2012.

EB-2 Immigrant Visa for Entrepreneurs - Questions & Answers

Employment-Based Second Preference Immigrant Visa Category
Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Immigrant Visa Category

Questions and Answers

Q1. Where can I find the laws governing the Employment Based Second Preference (EB-2) Immigrant Visa Category?
A1. The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2).  The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k).

Q2. What is the EB-2 Immigrant Visa Category?
A2. Congress created the employment-based second preference visa category with the Immigration Act of 1990. This classification includes:

• Members of the professions holding advanced degrees or their equivalent, and
• Individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.

Q3. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
A3. No, not every individual with an advanced degree will qualify.  It must be demonstrated that the occupation is a profession.  The term “profession” is defined by 8 CFR 204.5(k)(2) as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.  Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

Q4. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
A4. Yes.  An entrepreneur can qualify if the:

• Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
• Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree
• Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
• Petitioning employer has received an individual labor certification from the Department of Labor; and
• Entrepreneur meets all the specific job requirements listed on the individual labor certification

Q5. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
A5. Yes.  An entrepreneur can qualify if the:

• Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
• Entrepreneur will be working in the sciences, arts, or business
• Entrepreneur has exceptional ability in the sciences, arts, or business
• Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
• Petitioning employer has received an individual labor certification from the Department of Labor; and
• Entrepreneur meets all the specific job requirements listed on the individual labor certification.

Q6. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
A6. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers. 

Q7. How is exceptional ability defined?
A7. 8 CFR 204.5(k)(2) defines exceptional ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q8. How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?
A8. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(ii).  The criteria are:

(A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
(C) A license to practice the profession or certification for a particular profession or occupation
(D) Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree “relating to” the area of exceptional ability.  This means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field.  For example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.

Second, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q9. If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?
A9. Yes.  8 CFR 204.5(k)(3)(iii), states:

If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above.  Irrespective of the type of evidence presented, the entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification.  USCIS will take into account the totality of the circumstances when reviewing the evidence provided.  

When comparable evidence is presented, the entrepreneur must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation. 

There is no limitation on the type of comparable evidence the entrepreneur may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted.  For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.

Q10. How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?
A10. Entrepreneurs should discuss which element(s) (national economy, cultural or educational interest, or welfare of the United States) the entrepreneurial enterprise is claimed to benefit.  For example, the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States.

As another example, the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States.  It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas. 

NATIONAL INTEREST WAIVER

Q11. Is there a “national interest waiver” (NIW)?  And if so, what is it?  Can an entrepreneur qualify for a NIW?
A11. Yes.  A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor.  Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.  

Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes.  The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

Q13. If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?
A13. No.  Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW.  In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary.  The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States. 

Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history.  However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). 

While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances.  Footnote 5 in the decision states:

The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.

Q15. What are the three prongs laid out in the NYSDOT decision?
A15.

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit.  It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications.  In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit. 

Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope.  For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation.  Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.  As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States.  An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.  NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.”  The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:

“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW.  For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers.   The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.