What is a Permanent Residency or Immigrant Visa?
Permanent residency or immigrant visas are granted to foreign nationals who have the intent to permanently reside in the US. These foreign nationals may be called legal or lawful permanent residents, and green card holders. Green cards are the identification cards received by the foreign nationals and while today they are pink, the first cards were green and the name stuck.
Multinational Executives and Managers (EB-1)
Permanent residency is available in the EB-1-3 category for executives and managers coming to work in the US for an employer that is related to a company the applicant worked for prior to entering the US.
Permanent residency is available in the EB-1-3 category for executives and managers coming to work in the US for an employer that is related to a company the applicant worked for prior to entering the US. The category is very similar to the L-1 intracompany transfer non-immigrant category, though there are some important differences.
There are a number of requirements to qualify in this category.
First, the applicant must be continuously employed abroad for one year of the last three for a parent, affiliate, or subsidiary of a US employer. The employer may be a company or other legal entity including a profit, non-profit, religious, or charitable organization. It does not matter if the company is incorporated or not. Any time spent working in the US will not count toward the one year of required employment, though time spent in the US will not be considered to have disrupted the continuity of employment abroad. It is possible to use a combination of part-time employment for affiliated companies under certain circumstances.
Second, the applicant must be coming to work for the same employer as the foreign employer or the US affiliate, parent, or subsidiary. The US and the foreign firm must have common majority ownership, or, where there is less than majority ownership, common control by the same person or entity. Ownership by a common group of owners where no owner has control or a majority interest can cause a problem if each individual owner does not own the approximately the same amount of both the US and the foreign company. This problem can sometimes be worked around if the owners have set up a voting agreement to ensure that there are not different groups controlling the foreign firm and the US firm.
Third, the applicant must be coming as a manager or executive (note that unlike the L-1 visa, "specialized knowledge" employees do not qualify in this EB-1 category and those whose experience abroad is as a specialized knowledge worker will not qualify even if they are coming over to work as a manager or executive).
An "executive is one who directs the management of the company or a major part or function of the organization. Typical executive positions are presidents, vice-presidents and controller. An executive is expected to have a supervisory role in the company (either over personnel or a function) and would not include people who are primarily performing the specific tasks of production or providing service to customers. A "manager" directs the organization, a department, or a function of the organization. Like executives, a qualifying manager will not be overseeing the primary performance of a task. Exceptions apply when a manager or executive is coming to open a new office.
Persons coming to open up a new office in the US will not be eligible for EB-1 status until the new office has operated for more than a year (there does not appear any basis in the law for this, but the INS requires it in its implementing regulations).
The EB-1-3 green card is attractive because it is fast, there is no labor certification required, the INS has less leeway to deny if the applicant meets all the regulatory requirements and one without a university education or massive amounts of money can still qualify.
Foreign Nationals of Extraordinary Ability (EB-1)
The EB-1 Extraordinary Ability category is open to aliens with extraordinary ability in sciences, arts, education, business or athletics who have been able to demonstrate sustained national or international acclaim and whose achievement have been recognized in the field through extensive documentation.
The employment-based immigrant visa system is divided into five preference categories. The first category is called the EB-1 category and has three basic subcategories - extraordinary ability applicants, multinational executives or managers, and outstanding researchers or professors. 28.6% of the worldwide employment-based visas are allotted to this category. This article deals with the first of the three EB-1 subcategories.
The Extraordinary Ability category is open to aliens with extraordinary ability in sciences, arts, education, business or athletics who have been able to demonstrate sustained national or international acclaim and whose achievement have been recognized in the field through extensive documentation. The applicant must also state that his or her entry will substantially benefit prospectively the US (though the INS rarely seeks evidence of this criteria.) The legislative history notes that applicants should show that they have reached "the small percentage of individuals who have risen to the top of their field of endeavor."
Unlike other employment-based immigrant visa categories, the alien does not need to have an offer of employment. But the application does need to document that he or she intends to pursue work in the US in his or her area of expertise.
To demonstrate "sustained or international acclaim" and the recognition of the applicant's work, the applicant must submit evidence of a one-time achievement such as a major international award (Nobel Prize, Academy Award, etc.) or three OR MORE of the following:
- receipt of lesser nationally or internationally recognized prizes or awards.
- membership in association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts.
- published material about the person in professional or major trade
- publications or other major media.
- participation as a judge of the work of others.
- evidence of original scientific, scholastic, artistic, athletic or
- business-related contributions of major significance.
- authorship of scholarly articles in the field.
- artistic exhibitions or showcases
- performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
- high salary or remuneration in relation to others in the field.
- commercial success in the performing arts.
- other evidence evidencing extraordinary ability not listed in one of the above.
The INS will generally not award the visa based simply on counting pieces of paper. Rather, it will look at the quality of evidence to see if the evidence category is met.
Applicants for the EB-1 extraordinary ability petition submit their application on Form I-140 to one of the four INS regional service centers. A labor certification is not required, thus saving the applicant multiple months and major headaches.
Workers with Advanced Degrees/Exceptional Ability (EB-2)
Visa holders in this category normally must have a job offer and the potential employer must complete the labor certification process.(More information about the labor certification process is found later in this section and in the section entitled, “For Employers.”)
For the vast majority of employment-based permanent residency applicants, the only option ever considered is the labor certification process. The labor certification application process requires an employer to conduct a labor market test in order to demonstrate that no US workers with minimum qualifications are immediately available to fill the position for which the visa applicant is being considered. The program has extensive regulatory requirements including many governing how the job is to be advertised, how applicants are to be interviewed and how much workers are to be paid.
For applicants qualifying for the EB-2 employment category, the labor certification may be waived if the applicant can demonstrate that the applicant's admission is in the national interest. The EB-2 category is open to individuals who are professionals holding advanced degrees and for workers with exceptional ability.
INS regulations define an "advanced degree" as any degree beyond the bachelor's degree. A profession is defined to include occupations that normally require a bachelor's degree or higher for admission. For purposes of the EB-2 category, an applicant will be considered to have the equivalent of a master's degree if he or she has a bachelor's degree and five years of progressive experience. However, experience may not substitute for a bachelor's degree.
Exceptional ability can be demonstrated if the applicant can show at least three of the following:
(A) An official academic record showing that the alien 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 alien 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 alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations (though there is no requirement that the professional associations must require outstanding achievements of members);
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations; or
(G)Other comparable evidence.
Assuming that the applicant falls into one of these categories, the analysis of the national interest claim must be made. INS regulations do not specifically define "national interest" and immigration lawyers are left to rely on court cases and publicized INS decisions to determine whether a case is appropriate for the category. NIW cases have been approved in the following areas:
- improving the national economy
- improving wages and working conditions of US workers
- improving the nation's military readiness
- improving the education and training of US children and US workers
- improving health care
- providing affordable housing for younger and older, poorer US citizens
- improving the US environment
- helping the US make more productive use of natural resources
- a request has been made by a US government agency
- contributing to the nation's arts and athletics
- helping to resolve the Year 2000 computer bug
- There are a number of significant advantages to the NIW category.
First, the process is quite fast in comparison to the labor certification. The labor certification process can take more than three years in some parts of the US. The NIW petition can be approved in a matter of weeks or a few months.
Second, there is no requirement to have an employer petitioner. This can be helpful in several situations. For example, some doctors work in states that do not permit hospitals to employ physicians directly. As self-employed professionals, labor certifications are not possible. For research scholars moving from one institution to another but conducting essentially the same research, a national interest case can remain intact. If a labor certification applicant changes employers, the general rule is that the application lapses. Of course, one who is unemployed or only working part time in his or her field will have a tough time proving national interest.
Third, there is no prevailing wage requirement. Labor certification cases require employers pay employees at least as much as the average worker at that level would be paid in the particular geographic area. This requirement does not apply to NIW cases. This can be a significant if one is working for a non-profit organization that cannot afford to pay top salaries or if one is working in a research position where funding limits the amount that the researcher can be paid.
While the lack of regulations may intimidate many from applying in the category, a creative attorney can often fashion a winning NIW case with a compilation of quality evidence and a well-drafted petition brief. Successful cases will normally contain a number of support letters from past and current employers, past academic advisors, independent experts in the applicant's field or profession, government agency officials and clients of the employer. Articles and documents providing background on the applicant's field of national interest are useful as are documents proving the alien's credentials - diplomas, rewards, patents, etc. But the most important document will be the attorney's brief outlining the case.
The INS does not claim to follow any unpublished set of rules on these cases, but certain patterns are apparent. First, students, by and large, are denied NIW petitions and recent graduates are also being frequently denied. Second, the INS seems to be applying an extraordinary ability standard like the EB-1 category even though the statute does not require this. The INS will be suspicious of cases that do not have independent expert support letters. It will also expect the alien to demonstrate past contributions to the national interest in order to demonstrate the likelihood of future contributions.
Skilled Workers and Professionals (EB-3)
Visa holders in this category normally must have a job offer and the potential employer must complete the labor certification process. (More information about the labor certification process is found later in this section and in the section entitled, “For Employers.”)
Each year 140,000 employment-based immigrant visas are available. Ten thousand of these are available to immigrant investors, the EB-5 visa category. Ten thousand are available to “special immigrants,” such as religious workers, certain employees of the US government abroad, and widows and widowers of US citizens, the EB-4 visa category. The remaining 120,000 visas are divided between the first three preferences. Forty thousand visas are available in the first preference, EB-1, which covers international managers and executives, outstanding professors and researchers, and people of extraordinary ability. Forty thousand visas, plus any that are not used in the EB-1 category, are available in the second preference, EB-2, which is available to aliens of exceptional ability and advanced degree professionals. Forty thousand visas, plus any that remain from the other two categories are available to the third category, EB-3, which is available to people with a bachelor’s degree, skilled workers, and unskilled workers. The EB-3 category is the focus of this article.
There are several requirements common to each of the first three employment based preference categories.
- The alien must be offered a full-time, permanent position in the US (note: there are some exceptions to this requirement in the first two preference categories).
- The Department of Labor must certify that there are no available US workers (note: there are some exceptions to this requirement in the first two preference categories).
- The alien must meet the minimum requirements for the position offered and the employer must be able to pay the salary offered.
All petitions filed in the EB-3 category require a job offer and a labor certification (the labor certification process is discussed in depth in a different article). Despite this common element, there are important differences between the three subgroups. Regardless of the total number of visas available in the EB-3 category, only 10,000 visas are available each year for unskilled workers. The result of this is a backlog in the “other workers” category. In February 2000, the visa cut-off date in this category is March 1, 1994.
Professionals who hold a Bachelor’s Degree
This category is available only to those who hold a US bachelor’s degree or its foreign equivalent. Unlike the H-1B nonimmigrant category, one is not able to make up for a lack of education through experience. A profession is a field entry into which requires at a minimum a bachelor’s degree. While these two requirements seem to equal the same thing, there is no requirement that the bachelor’s degree be in the field of offered employment.
For a person to qualify as a skilled worker, the position offered must require at least two years training and experience. The alien must possess the requisite background, but simply because the alien has two years of training and experience does not make it a skilled position if it does not otherwise require two years of training and experience.
Under INS regulations, whether a position involves skilled labor is determined by reference to the Department of Labor approved labor certification. Because of the backlog in the other worker category, it is vitally important that the employer demonstrate to the INS that the position does require at least two years training and experience. The primary issues that occur here result from conflict between the employer’s belief that the position does require two years and Department of Labor guidelines on specific vocational preparation that show the position requires less. Therefore this issue will be resolved before the application is submitted to the INS.
This category covers “unskilled labor,” defined by the Department of Labor as work that takes less than two years training or experience to perform. Because there is an annual limit of 10,000 visas in this subcategory, regardless of how many are available in the entire EB-3 category, there are extreme backlogs in visa numbers for this category. Currently this backlog is about six years.
Applying for the EB-3 Visa
After the Department of Labor has approved the labor certification, or in cases in which the Department does not need to approve a labor certification, an application for an immigrant worker may be filed. The form used for this petition is the I-140 Immigrant Petition for an Alien Worker. It is submitted to the appropriate regional INS Service Center along with the approved labor certification and a letter from the employer.
Other items that must be included with the petition are documents showing that the employer has the financial resources to pay the offered wage, which must be shown to be at least the prevailing wage. There must also be documentation that proves the position is within the preference category sought. In the EB-3 category this evidence would depend on which sub classification is sought. Such documentation can come from Department of Labor resources, or from industry standards. Finally, evidence must be submitted that the alien meets the job requirements, such as a copy of a bachelor’s degree or evidence of work experience.
If the INS approves the petition, the applicant can now pursue permanent residency by either adjustment of status in the US or by consular processing at a US Consulate in their native country. Both of these options are discussed in other articles.
Religious Workers (EB-4)
Ministers of religion are eligible for permanent residency.
There are 140,000 employment-based immigrant visas available each year, of which 10,000 are reserved for "special immigrants." Included within this visa category, EB-4, are religious workers, which is further broken down into ministers, those who work in a professional capacity for a religious organization, and those who work for a religious organization in a religious vocation.
The following are requirements for an EB-4 religious worker visa:
The sole purpose for entry must be to perform as a minister, working in a professional capacity in a religious vocation or occupation for a religious organization and at the organization's request;
- The immigrant must have worked as in the religious occupation for at least two years prior to coming to the US;
- The religious organization must need the immigrant's services;
- The religious organization must be bona fide and be recognized in the US;
- The immigrant must be authorized by the religious organization to perform religious services.
Religious workers who are not ministers have been allowed into the US since 1990 under a program admitting up to 5000 per year. This program is due to expire in 2000. As is required with ministers, the other religious workers must have served in the capacity they seek to fill in the US for at least two years immediately before applying.
The procedure for applying for an EB-4 visa requires extensive documentation. The tax exempt status of the religious organization must be detailed, and the applicant must get a letter from an authorized official within the religion proving his prior membership, explaining how the applicant will continue his religious work, and how the applicant will be remunerated.
Derivative status is available for spouses and children of EB-4 workers.
Investors/Employment Creation (EB-5)
Under the 1990 Immigration Act, Congress has set aside up to 10,000 visas per year for alien investors in new commercial enterprises that create employment for ten individuals. There are two groups of investors under the program - those who invest at least $500,000 in "targeted employment areas" (rural areas or areas experiencing high unemployment of at least 150% of the national average rate) and those who invest $1,000,000 anywhere else. No fewer than 3,000 of the annual allotment of visas must go to targeted employment areas.
Congress created the immigrant investor visa category in the Immigration Act of 1990 in the hopes of attracting foreign capital to the US and creates jobs for American workers in the process.
The EB-5statute requires that the immigrant invest $1 million in capital (in some circumstances described below, $500,000 is an acceptable investment) to establish a new commercial enterprise. The investment may also be made in established but troubled businesses provided that the investment makes a significant change in the structure and function of the business and the applicant can show at least ten existing jobs. The regulations provide a number of additional definitions and specifications:
- "Capital," for purposes of determining if an investment meets the $500,000 or $1,000,000 threshold, includes cash, equipment, inventory, other tangible property, and cash equivalents. Indebtedness secured by assets owned by the applicant may be considered capital, provided that none of the assets of the new business enterprise are used to secure the debt. All capital must be derived by lawful means.
- A "commercial enterprise" may take the form of any traditional business organization, whether publicly traded or privately held. The definition may include a holding company and its subsidiaries, provided that each subsidiary is engaged in a lawful, for profit business.
- "Invest" means to contribute capital. Capital contributed in exchange for a note, bond, convertible debt, obligation, or other debt arrangement between the applicant and the business enterprise is not considered an investment.
- A "troubled business" is one that has been in existence for at least two years and has incurred a net loss (as determined by generally accepted accounting principles) for the 12 or 24-month period prior to the applicant’s priority date, if such loss is at least equal to twenty percent of the business’s net worth prior to the loss.
- When multiple investors are involved, each investor petitioning for a visa must invest the required amount, and each investment must lead to the creation of ten full-time jobs.
A new commercial enterprise is either
- The creation of an original business
- The purchase of an existing business if reorganization results, or
- The expansion of an existing business by investment of the required amount of capital is it creates a substantial change in the net worth or number of employees. A substantial change is an increase of 40%, so that the post-expansion net worth or number of employees is at least 140% of the pre-expansion level.
The following evidence that must be submitted with the EB-5 petition:
- Evidence to show that a new commercial enterprise has been established, such as articles of incorporation, business license, or evidence of the transfer of the required amount of capital when purchasing an existing business.
- Evidence that the proper amount of capital has been placed at risk, such as bank statements showing the deposit of funds into the business’s account, evidence of equipment purchased for use in the business; evidence of property transferred to the business, and evidence of money transferred to the business in exchange for shares of stock. This stock cannot include terms requiring the business to redeem the stock at the holder’s request.
- Evidence demonstrating that the capital invested was lawfully gained, such as foreign business registrations, tax returns, or certified copies of criminal or civil judgments, where appropriate.
- Evidence that the investment has created at least ten full-time jobs, such as tax records, Forms I-9, or if employees have not yet been hired, a detailed business plan demonstrating that the nature of the business will require the hiring of ten employees within two years. If the business is a troubled business, the applicant must submit evidence that the currently existing number of employees will be maintained for at least two years.
- Evidence that the investor will be engaged in the management of the enterprise, such as evidence that the applicant is a corporate officer or member of the board of directors. If the business is a limited partnership, the applicant will be considered to have a management position only if the partnership agreement provides that the applicant will have the rights, powers and duties normally granted to limited partners under the Uniform Limited Partnership Act.
The Labor Certification Process
For two of the most common types of employment-based permanent residency categories, a labor certification from the United States Department of Labor is required in order to apply for a visa. The labor certification, in a nutshell, is a process where an employer must demonstrate to the Department of Labor that there are not sufficient workers qualified, willing, able and available for a particular position. Furthermore, an employer must be able to show that there will be no adverse effect on workers in the United States similarly employed if the employer hires an alien to fill the position. The labor certification is generally required for persons in the EB-2 category for advanced degree professionals and exceptional ability workers. An exception is made for workers who can demonstrate to the Immigration and Nationality Service that their work is in the national interest. Labor certifications are always required in the EB-3 category for professionals, skilled workers and other workers. Furthermore, a more liberal standard for labor certifications is available college and university teachers.
The labor certification process is highly regulated and very time-consuming. If other viable permanent residency options are available, they should always be considered. Furthermore, it is extremely difficult to win in cases where an applicant is self-employed or has an ownership interest in the business. Before embarking on a labor certification, the employer, attorney and job applicant should closely review a number of key issues including the actual job requirements for the position and the current and future job markets for a position in a particular geographic location.
In order to meet the test for showing unavailability of US workers, the employer will need to conduct a recruitment campaign under the supervision of the department of labor in the state, which has jurisdiction over the intended place of employment (normally referred to as a "SESA"). The employer will initially submit Form ETA 750 Parts A and B with the SESA. Part A, the "Offer of Employment" requires the employer to provide information about the minimum requirements for a position as well as information about the employer. The form also requires the employer to attest to the following conditions:
That he or she has enough funds to pay the wage offered to the alien;
That the wage equals or exceeds the prevailing wage upon beginning work;
That the wage offered is not based on commissions, bonuses, or other incentives unless the amount paid to the employee is guaranteed;
That the employer will be able to place the worker on the payroll on or before entrance into the United States;
That the job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship;
That the job's availability is not due to a strike, lockout, or other work stoppage;
That the job opportunity's terms are not contrary to law; and
That the job opportunity is clearly open to any qualified US worker.
One of the key requirements here is payment of the prevailing wage. The wage offered must be at least 95% of the prevailing wage. The SESA normally can provide the prevailing wage information. If the employer wishes to dispute the wage, it is possible to present alternative information. The US Department of Labor will determine which is the correct wage when it makes a determination on the labor certification application.
The employer must also be careful to carefully document all of the true job requirements in the application. Requirements not listed in the ETA 750 cannot be used as the basis for rejecting otherwise qualified US workers for the position. On the other hand, an employer should not be unduly restrictive in stating requirements. In that case, the Department of Labor may hold that the requirements are simply being tailored to suit the alien's specific educational and experience credentials. The Department of Labor is particularly tough on foreign language and computer language requirements. In these cases, it is usually a good idea for an employer to include a business necessity letter explaining additional requirements and it may also be useful to include an expert affidavit outlining the need for the requirement.
Part B of the ETA 750 is the "Statement of Qualifications of the Alien." The employee must list all education, employment for the last three years and other employment-related experience relevant to the offered position. This information is very important since the alien must demonstrate that he or she meets all of the job requirements stated in Part A of the application. The worker will need to have actual documentation of the education and experience including school transcripts and letters from previous employers.
After the ETA 750 is submitted to the SESA, the application will either be accepted as submitted or the SESA officer will send a letter suggesting ways to change the application to make it acceptable. After the application is accepted, the SESA will place a job order in its statewide computerized "job bank" for thirty days. The SESA will then direct the employer to advertise the position and post a job notice at the employer's work site.
The advertisement that is required will normally be placed in either a newspaper of general circulation for three consecutive days (normally including a Sunday), or in a professional or national trade publication, depending on what is considered normal for the specific type of position. The advertisement will include the job duties and requirements and direct applicants to send their applications to the SESA. The ad will not list the name of the employer.
The job posting mentioned above will need to be given to a union representative or bargaining agent if one exists at the place of employment or posted in a conspicuous place on the job site for at least ten working days. The notice must contain a description of the position as well as the salary offered. Unfortunately, an employer cannot get around posting wage information.
When applicants begin to respond to the recruitment, employers must be very diligent in responding. Failure to act quickly in responding to applications for the position may result in the US Department of Labor finding that the recruitment was not done in good faith. All applications forwarded to the employer by the SESA are presumed to meet the minimum qualifications for the position and must be handled. In practice, many SESA's do not screen resumes at all, but this does not excuse the requirement to respond to the application. Employers should interview all applicants in person or by telephone. In some cases, an employer can use a questionnaire form to screen candidates and then follow up by interviewing the candidate. Applicants can only be rejected for lawful, job related reasons. Employers frequently run into problems trying to contact job applicants. Employers should try to use multiple means to contact an applicant. Sending a letter by certified mail and calling the applicant by telephone are usually good choices.
Within 45 days from the issuance of the instructions for recruitment by the SESA, the SESA must receive a recruitment report outlining all of the results of the recruitment. The SESA will then review the report and often will contact the job applicants to see if they were actually interviewed. If everything is satisfactory, the SESA will forward the application to the regional office of the US Department of Labor. The Department of Labor may request additional information or documentation. DOL may also issue a document called a "Notice of Findings" stating its objections to granting certification and suggesting changes in the application. In some cases, the employer can submit rebuttal information and offer to re-advertise. Hopefully, however, DOL will not issue a Notice of Findings and will instead issue an approved labor certification.
After the labor certification is approved, the employer will submit an application for permanent residency for the worker along with the labor certification to the Immigration and Naturalization Service. After approval there, the alien can submit the final application to adjust status to permanent residency (if the alien is in the US) or apply for consular approval of permanent residency (if the alien is outside the US). Labor certifications do not have expiration dates, but are normally only valid for the specific employer.
The Green Card Lottery
The Department of State annually holds the Diversity Visa program (also known as the Green Card Lottery) where 50,000 green cards are awarded by random computer selection. The next lottery will be the DV-2002 and the entry period will be in the fall of 2000. As a service to readers of this web site, you will find below the Lottery FAQ - a detailed question and answer document, which provides all of the information, needed to enter the lottery. We believe that most people will find that if they are diligent about complying with the rules and have reasonable English skills, they can enter the lottery without further assistance than what we are providing here.
Of course, those wishing legal assistance or current information about the DV-2002 lottery, can visit Siskind’s Green Card Lottery Center at:http://www.visalaw.com/lottery_page.html
LOTTERY FREQUENTLY ASKED QUESTIONS (FAQ):
(Updated August 1, 2000)
This discussion is intended to address most of the major questions many of you have asked us about the DV-2002 Lottery. The discussion includes sample forms to guide you in completing your own application.
What is the "Green Card" Lottery?
The U.S. Congress has authorized the allotment of 50,000 immigrant visas in the DV-2002 category during Fiscal Year 2002 (which runs from October 1, 2001 to September 30, 2002). Foreign nationals who are natives of countries determined by the I.N.S. (according to a mathematical formula based upon population totals and totals of specified immigrant admissions for a 5-year period) are eligible to apply. The application period will begin at noon Eastern US time on October 2, 2000 and will end at noon Eastern US time on November 1, 2000. Entries received before and after that date will be rejected.
Natives of which countries are excluded?
The list is the same as DV-2001 except that Pakistan has been added and Poland and Taiwan have been removed. Here is this year's list:
- China - mainland China and Macau (nationals of Hong Kong and Taiwan ARE included)
- Dominican Republic
- El Salvador
- South Korea
- United Kingdom (natives of Northern Ireland and Hong Kong are eligible, but natives of Anguilla, Bermuda, British Virgin Islands, Caymen Islands, Falkland Islands, Gibralter, Montserrat, Pitcairn, St. Helena, and the Turks and Caicos Islands are not eligible)
The DV lottery is designed to increase the diversity of the overall pool of immigrants coming to the US. Countries that are proportionately over-represented in the immigrant population are excluded. Countries that have sent more than 50,000 immigrants to the US in the past five years are put on to the list above.
How are visas allotted?
The DV-2002 program apportions visa issuance among six geographic regions (Africa, Asia, Europe, North America (other than Mexico), Oceania, and South America (including Mexico, Central America and the Caribbean). The world is divided up into high and low admission regions and each of the six regions is divided into high and low admission states. A greater portion of the visas go to the low admission regions than to high admissions regions. High admission states are entirely excluded from the lottery (those states are listed above) and low admission states compete equally with other low admission states in the same region. No single state may receive more than 7% (3,500) of the 50,000 allotted visas.
The specific quotas for each region have not been announced yet.
Who is eligible to apply for the lottery?
To receive a DV-2002 visa, an individual must be a native of a low admission foreign state (described above). The individual must have at least a high school education or its equivalent, or, within the preceding five years, two years work experience in an occupation requiring at least two years training or experience.
What does it mean to have a "high school education or its equivalent?"
"High School education or its equivalent" means the successful completion of a twelve year course of elementary and secondary education in the U.S. or successful completion in another county of a formal course of elementary and secondary education comparable to complete a 12 year education in the U.S. or successful completion in another country of a formal cause of elementary and secondary education comparable to completion of a 12 year education in the U.S. Passage of a high school equivalency examination is not sufficient. It is permissible to have completed one's education in less than 12 years or greater than 12 years if the course of study completed is equivalent to a U.S. high school education. Documentary proof of education (including a diploma or school transcript) should NOT be submitted with the application, but must be presented to the consular office at the time of formally applying for an immigrant visa application.
What does it mean to have "two years work experience in an occupation requiring at least two years training or experience?"
The determination of which occupations require at least two years of training or experience shall be based upon the Department of Labor's Dictionary of Occupational Titles. If the occupation is not listed in the DOT, the Department of State will consider alternate evidence. Please Email or write me if you need to check the DOT (this will probably not be necessary for the vast majority of you since most of you have high school degrees or the equivalent). As with proof of education, documentary proof of work experience should not be submitted with the application, but must be presented to the consular office at the time of a formal immigrant visa application.
Can I be a "native" of a country other than the country in which I was born?
A native is both someone born within one of qualifying countries and someone entitled to the "charged" to such country under Section 202(b) of the Immigration and Nationality Act. Thus someone may be (1) charged to the country of birth of his/her spouse; (2) a minor dependent child can be charged to the country of birth of a parent; and (3) an applicant born in a country of which neither parent was a native may be charged to the country of birth of either parent. If one claims to be a native of a country other than where one was born, he/she must include a statement to that effect on the lottery application and must show the country of chargeability on the application envelope (see discussion of the application form and envelope).
Will applying for the lottery affect one's ability to receive a nonimmigrant visa?
Probably not. Technically, filing a visa lottery application is equivalent to filing an immigrant petition. According to a source at the Department of State, a consulate will only be notified IF the person is selected in the lottery. An individual who is not chosen is on his honor to state that he/she applied for the lottery. Theoretically, if your name is selected in the lottery, you may have trouble renewing nonimmigrant status while waiting for your name to be cleared for processing (see discussion on the post-selection process for securing a green card). This should only be a temporary problem since permanent residency should eventually be awarded. There is still a risk that you will fail to be deemed eligible for the DV-2002 visa or the Department of State will have overestimated the number of individuals to select in the lottery (see discussion on how the selection process works). However, of all the lawyers with whom I have spoken, none have ever reported a problem with a client having entered the lottery. We have instructed our clients to answer the question on the OF-156 concerning previous immigrant visa applications as follows: "My lawyer entered me in the DV-2002 lottery." We have never had a problem reported and I have yet to hear of anyone denied a visa because of a previous lottery application. Note, however, that a new draft version of the OF-156 actually asks whether one has applied for the green card lottery. We do not believe this changes State Department policy on the matter, but we will monitor the situation.
Do I need to be in lawful visa status to compete?
An individual who is in the U.S. need NOT be in lawful status to compete in the lottery. However, the Department of State has indicated that it will share information with the Immigration and Naturalization Service for the "formulation, amendment, administration and enforcement" of the country's immigration laws. Furthermore, a person out of status may be subject to the new three and ten year bars on admission of the 1996 immigration law and unable to take advantage of winning the lottery. Recently, however, the Immigration and Naturalization Service indicated that if someone has a pending visa application approved before January 14, 1998 (for example, an I-130 approved but where priority dates are not current), the person may be able to process a lottery selection in the United States. Because the laws on this subject are highly complex, it is recommended that out of status persons contact an immigration lawyer to determine their status and an appropriate strategy.
Does it matter whether I am or am not in the U.S.?
Individuals who otherwise meet the requirements for competition in the lottery, may compete whether they are in the United States or in a foreign country.
Are there any limitations on the number of entries I can send in for the lottery?
Each individual is limited to one application in the lottery. If more than one application is received, the individual will be totally disqualified. Note: Hundreds of thousands of applications are rejected every year due to multiple applications. It is not a problem if you have submitted an application during a PREVIOUS lottery registration.
May a husband and wife each submit a separate application?
Yes. If otherwise qualified, a husband and a wife may each submit one lottery application. If either is selected in the lottery, the other would be entitled to derivative status.
If I win, can I get green cards for my family?
Your spouse and unmarried children under the age of 21 (at the time the green card - not the lottery application - is approved) are automatically entitled to the same status as you.
Is there a minimum age to apply for the lottery?
There is not a minimum age to apply for the lottery. However, the education/work experience requirements will effectively preclude most people under 18 from applying.
May I adjust status in the U.S. if I am selected?
An applicant may adjust status (switch to permanent residency in the U.S.) if they meet the normal requirements for adjusting status with the INS (including not having previously been out of visa status). In order to apply for adjustment of status, the INS must be able to complete action on the case before September 30, 2001.
How does the selection process work?
The State Department's Kentucky Consular Center will receive all applications. Upon receipt, the KCC will place the letter into one of six geographic regions and assign the letter an individual number. Within each region, the first letter randomly selected will be the first person registered, the second letter selected will be the second person registered, etc. When a case is registered, the applicant will immediately be sent a notification letter which will give visa application instructions.
About 90,000 persons, both principal applicants and their spouses and children, will be registered. Since it is probable that some of the first 50,000 persons registered will not apply for a DV-2002 visa, this figure is assumed to be large enough to ensure that all of the visas are used. However, there is a risk that some applicants will be left out. Indeed, this has been a problem for people drawn late in the selection process. According to the Department of State, all applicants will be informed promptly of their place on the list. Each month visas will be issued, according to registration lottery rank order, to those ready for visa issuance for that month. Once 50,000 visas are issued, the program ends. Registrants for the DV-2002 lottery will have to have their visa in hand by September 30, 2001 at the latest. You must be prepared to act promptly if your name is selected.
How will I know if I was selected or not selected?
The State Department will notify winners by mail between April 2001 and June 2001. The State Department will not notify applicants to let them know they were not selected. The only way you will know that you are not selected is if you have not received a registration notification letter before the date the INS officially states that it has stopped notifying people (i.e. if you have not heard by July 2001, assume you were not selected).
Is there an application fee to enter the lottery?
No. There is no government application fee for submitting a lottery application. If you win the lottery, you will pay a special DV-2002 case processing fee later. Winners will also have to pay regular visa fees at the time of visa issuance. Certain law firms and immigration consultants offer application services and the fees for such services may vary. IT IS NOT NECESSARY TO USE SUCH A SERVICE. However, one may want to use a reputable service if they wish to have a US return address, want the application mailed from a US address, want someone to review your application if your English skills are weak, or otherwise do not have the time to submit the application on their own.
Can someone selected in the lottery receive a waiver of any of the grounds of visa ineligibility?
No. There is no special provision for the waiver of any grounds of visa ineligibility other than those provided for in the Immigration and Nationality Act. Also, holders of J 1 visas with a two year home residency requirement will not be able to receive a waiver of this requirement by virtue of being selected in the lottery. A holder of a J visa can still enter the lottery, but he/she will have to qualify for a residency waiver in the same manner as is normally required to get such a waiver. Because all visas must be issued by the end of September 2001, individuals who have not yet begun their home residency are effectively precluded (unless they are able to get a waiver of the home residency requirement quickly).
May someone apply for a DV-2002 visa if they are already registered in another visa category?
Do I need to send photographs of each family member and have each sign the application or just the principal applicant?
The signature and photograph of the principal applicant are all that should be included in the application. Remember, however, that a husband and wife can each submit their own applications as the principal applicant.
What if someone else signs my application or if I send it in unsigned?
The State Department is quite strict on the requirement that the applicant sign his or her own application. It is not sufficient to have a family member or friend sign the application on behalf of the applicant. A number of DV winners have been sadly disappointed when they found out there immigration applications were later rejected on this ground. Also, if you fail to sign your application, you will not even get as far as being selected since your application will not even be entered into the computer.
In what region is my native country assigned?
- Burkina Faso
- Cape Verde
- Central African Republic
- Congo, Democratic Republic of the Cote d'Ivoire (Ivory Coast)
- Equatorial Guinea
- Gambia, The
- Sao Tome and Principe
- Sierra Leone
- South Africa
- China-mainland and Macau(not eligible for DV-2002)
- Hong Kong Special Adminstrative Region
- India (not eligible for DV-2002)
- Korea, North
- Korea, South (not eligible for DV-2002)
- Pakistan (not eligible for DV-2002)
- Philippines (not eligible for DV-2002)
- Saudi Arabia
- Sri Lanka
- United Arab Emirates
- Vietnam (not eligible for DV-2002)
- Bosnia and Herzegovina (including components)
- Czech Republic
- Denmark (including components and dependent areas overseas)
- France (including components and dependent areas overseas)
- Macedonia, The Former Yugoslav Republic of
- Netherlands (including components and dependent areas overseas)
- Northern Ireland
- San Marino
- United Kingdom (not eligible for DV-2002; NOTE: natives of Northern Ireland and Hong Kong are eligible, but natives of Anguilla, Bermuda, British Virgin Islands, Caymen Islands, Falkland Islands, Gibralter, Montserrat, Pitcairn, St. Helena, and the Turks and Caicos Islands are not eligible)
- Vatican City (an independent city under the jurisdiction of the Holy See)
(4) North America
- Bahamas, The
- Canada (not eligible for DV-2002)
- United States
- Australia (including components and dependent areas overseas)
- Marshall Islands
- Micronesia, Federated States of
- New Zealand (including components and dependent areas overseas)
- Papua New Guinea
- Solomon Islands
- Western Samoa
(6) South America, Mexico, Central America, and the Caribbean
- Antigua and Barbuda
- Colombia (not eligible for DV-2002)
- Costa Rica
- Dominican Republic (not eligible for DV-2002)
- El Salvador (not eligible for DV-2002)
- Haiti (not eligible for DV-2002)
- Jamaica (not eligible for DV-2002)
- Mexico (not eligible for DV-2002)
- St. Kitts and Nevis
- St. Lucia
- St. Vincent and the Grenadines
- Trinidad and Tobago
There is no form for the DV-2002 lottery. All that is required is that the proper information is typed or clearly printed in the Roman alphabet on a plain sheet of paper, the application is signed by the applicant, a proper photograph is included and the application is sent in a properly addressed envelope via regular mail.
Each application must contain the following information and documents:
1. APPLICANT'S FULL NAME
Last Name, First Name and Middle Name (Underlined Last Name/Surname/Family Name - note that the State Department will also allow the last name to be underlined)2. APPLICANT'S DATE AND PLACE OF BIRTH
Example:Doe, John James
Date of Birth:Day, Month, Year
Example:15 November 1961
Place of Birth:City/Town, District/County, Province, Country
(use current name of country if country's name has changed since birth)
Example:Munich, Bavaria, Germany,
3. NAME, DATE AND PLACE OF BIRTH OF APPLICANT'S SPOUSE AND CHILDREN
[Note: Do not list parents as they are not entitled to derivative status.]
4. APPLICANT'S MAILING ADDRESS
Be sure the address is complete since this is where notification will be sent if the application is selected. You may also provide a telephone number, but this is optional.
5. APPLICANT'S NATIVE COUNTRY IF DIFFERENT FROM COUNTRY OF BIRTH
The Applicant's signature is required on the application (preferably the bottom).
7. A recent 1 1/2 inch by 1 1/2 inch (or 37 mm by 37 mm) photograph of the applicant.The applicant's name must be printed across the back of the photograph. The photograph should be less than six months old and it should be attached to the application using clear tape and not with staples or paperclips. The application should be placed in an envelope that is between 6 inches and 10 inches (15 cm to 25 cm) in length and between 3 1/2 inches and 4 1/2inches (9 cm to 11 cm) in width.
In the upper left hand corner of the front of the envelope must be the country of which the applicant is a native. Typed or clearly printed below the country must be the same name and mailing address of the applicant as are shown on the application form.
James John Doe
1111 Main Street
Nashville, Tennessee 37204
Applications must be sent by regular mail (not by hand delivery, telegram, or any means requiring acknowledgment such as registered mail or express mail) to one of the six following addresses, depending upon the region of the applicant's native country.
Note carefully the importance of using the correct postal zip code for each region:
AFRICA: DV-2002 Program, Kentucky Consular Center, Lexington, KY 41901, U.S.A.
ASIA: DV-2002 Program, Kentucky Consular Center, Lexington, KY 41902, U.S.A.
EUROPE: DV-2002 Program, Kentucky Consular Center, Lexington, KY 41903, U.S.A.
SOUTH AMERICA: DV-2002 Program, Kentucky Consular Center, Lexington, KY 41904, U.S.A.
NORTH AMERICA: DV-2002 Program, Kentucky Consular Center, Lexington, KY 41905, U.S.A.
OCEANIA: DV-2002 Program, Kentucky Consular Center, Lexington, KY 41906, U.S.A.