The purpose of this advisory bulletin is to provide a brief update on recent changes in U.S. immigration law.
Cap on H-1B Petitions. Effective Oct. 1, 2003 (the start of the U.S. government's new fiscal year), the annual cap on the number of new H-1B petitions reverted back to 65,000 (it had been increased to 195,000 for the past couple of years). The H-1B cap does not apply to extensions of existing H-1B petitions or to H-1B petitions filed by certain educational and nonprofit institutions. Unless and until Congress acts to introduce new legislation, the H-1B filing fee also is reduced from $1130 to $130. Employers who are considering filing new H-1B petitions during the coming year are advised to file them as early as possible. It is too early to know for sure, but it is possible that the H-1B cap could be reached by the spring of 2004, in which case new H-1B petitions would be unavailable until Oct. 1, 2004.
Annual Green Card Lottery. The Diversity Immigrant Visa Program (DV-2005) administered by the U.S. Department of State (DOS) makes available 50,000 green cards per year to persons from countries with low rates of immigration to the United States. The registration period for DV-2005 is between Nov. 1 and Dec. 30, 2003. DOS has posted detailed instructions for the upcoming registration on its website at http://travel.state.gov/dv2005.html. For the first time this year, all registrations must be submitted electronically. Winners are chosen by a computer-generated random lottery drawing and are usually notified in the spring or summer following the registration period. Natives of the following countries are ineligible to participate in DV-2005: Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Russia, 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. Applicants who submit more than one entry or fail to follow the strict registration instructions will be disqualified.
Changes in Visa Processing at U.S. Consulates Abroad. DOS published a new rule on July 7, 2003 requiring personal interviews for most visa applicants. The rule became effective Aug. 1, 2003 and has caused significant delays in visa processing at most U.S. consulates abroad. The personal interview requirement does not apply to individuals who are applying to renew an existing visa. It also does not apply to Canadian citizens (who are generally visa exempt) and citizens of 27 countries who are visiting the United States for business or pleasure under the "visa waiver program." Visa processing also has been affected by increased security background checks of persons employed in occupations on the DOS Technology Alert list. Delays of 30-60 days are not uncommon in many such cases. On Aug. 18, 2003, DOS also published a final rule eliminating "automatic visa revalidation" for individuals who apply for a new visa while traveling abroad. The final rule is substantially the same as an interim rule that had been in effect since Mar. 7, 2002. Prior to that time, persons who traveled to Canada or Mexico for less than 30 days could reenter the United States with an expired visa, so long as they had a valid approval from U.S. immigration extending their stay in the United States. Under the new rule, "automatic visa revalidation" no longer applies to persons who apply for a new visa while in Canada or Mexico. Thus, if the new visa is delayed or refused for any reason, the person may be prohibited from reentering the United States and may be forced to return to his or her home country. Thus, it is extremely important to consult with an immigration lawyer before applying for a new visa in Canada or Mexico.