Tag Archives: diversity immigrant visa

White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail

Of the four immigration bills that were recently considered by the Senate, three offered a path to citizenship for 1.8 million undocumented immigrants brought to the U.S. when they were children. But the White House’s calls to end “chain migration” by limiting family-based immigration to only spouses and minor children of U.S. citizens (and possibly permanent residents), as well as scrap the Diversity Visa Lottery program, have made it harder for a divided Congress to address the nation’s immigration problems with a legislative fix.

Comprehensive immigration reform remains a divisive issue in Congress, as reflected in the Senate’s failure to advance any of the four immigration bills up for a vote on Thursday, February 15. On immigration, a supermajority of 60 out of 100 senators must agree to end debate and force an up or down vote on a bill. The Chuck Grassley (R-Iowa) immigration bill, which was backed by President Trump and mirrored the White House “four pillars” immigration framework, received the least number of votes to move forward.

Dreamers and DACA Holders in Limbo

There seems to be bipartisan support for protecting “Dreamers” or young undocumented immigrants who qualify for the Deferred Action for Childhood Arrivals (DACA) program, which was introduced by the Obama Administration on June 15, 2007, and rescinded by the Trump Administration on September 5, 2017.

DACA is a temporary immigration relief for undocumented immigrants who came to the U.S. as minors before age 16, lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

Although DACA provides authorized stay and work authorization on a temporary basis, it does not provide a path to permanent residence or citizenship in the U.S.

When the Trump Administration announced the ending of DACA, and left it up to gridlocked Congress to address the ramifications, it set an expiration date of March 5, 2018. But with federal courts in New York and San Francisco issuing temporary injunctions on February 13 and January 9, respectively, which block the Administration’s September order rescinding the DACA program, USCIS issued a statement noting it will, for now, continue accepting requests for DACA renewals under pre-existing terms.

The end of DACA does not mean there will be mass deportations of young, undocumented immigrants. The U.S. Department of Homeland Security (DHS) has to issue a Notice to Appear and file it with the Immigration Court to initiate removal proceedings against an applicant, who may seek available relief  (e.g. asylum, cancellation of removal) from the Immigration Judge. The DHS may also set enforcement priorities so that Dreamers or DACA holders are low priorities for removal.

White House Calls for Limits on Family-Based Immigration and an End to Diversity Visa Lottery Program

In his first State of the Union address before a joint session of Congress on January 30, Trump expressed concerns with family-based immigration, which he referred to as “chain migration.”  He claimed, “under the current broken system, a single immigrant can bring in virtually unlimited numbers of distant relatives.”

He stated his immigration plan “protects the nuclear family by ending chain migration” and would “focus on the immediate family by limiting sponsorships to spouses and minor children.”

Trump also called for an end to the Diversity Visa Lottery, which he said is “a program that randomly hands out green cards without any regard for skill, merit or the safety of our people.” He previously noted in a December 15, 2017 speech, “they give us their worst people, they put them in a bin,” and “the worst of the worst” are selected in the Diversity Lottery.

Using anecdotal cases, the President has linked family-based immigration and the Diversity Visa Lottery program to terrorist attacks and threats to the national security of the United States.

In a December 11, 2017 statement, Attorney General Jeff Sessions wrote, “The President is exactly correct about the changes we need to our immigration system. We have now seen two terrorist attacks in New York City in less than two months that were carried out by people who came here as the result of our failed immigration policies that do not serve the national interest —the diversity lottery and chain migration.”

Of the two examples, the first is Sayfullo Saipov, from Uzbekistan, who entered the United States in 2010 on a diversity immigrant visa. Saipov is accused of killing eight people and injuring a dozen others when he drove a rented truck through a Manhattan, New York City bike lane in October 2017.

The second example is Akayed Ullah, a permanent resident from Bangladesh, who is suspected of carrying out a terrorist attack in New York City in December 2017. Ullah is accused of attempting to bomb a subway station with a low-tech explosive device, but only he was injured when the device failed. He came to the United States in 2011 as the minor child of a parent who was petitioned by an adult U.S. citizen sibling (in fourth preference, family sponsored category).

Family-Based Immigration, As It Stands

U.S. citizens and lawful permanent residents/green card holders may sponsor only certain relatives for immigrant visas. Except for the immediate relative category (spouses and minor children of U.S. citizens, and parents of adult U.S. citizens), there is a limited number of visas available and lengthy waiting lists (some lasting more than a decade) in family-based, preference categories.

The preference categories include unmarried sons and daughter of U.S. citizens and their minor children (if any);  spouses, minor children, and unmarried sons and daughters 21 or older of permanent residents; married sons and daughters of U.S. citizens and their spouses and minor children (if any); and siblings of adult U.S. citizens and their spouses and minor children (if any).

The beneficiary (immigrant visa/green card applicant) also must not be inadmissible to the United States based on likelihood of becoming a public charge, certain criminal offenses, immigration violations, or other grounds defined by statutory law.

For more information on the existing family-based immigration system, read Immigrant Visa Process: Delays and Setbacks; Changes to the Visa Bulletin: Understanding the Two Filing Charts; and Priority Date Recapture and Retention in Family-Based Immigration.

Current Diversity Visa Lottery Program

Contrary to Trump’s claims, countries do not choose which of their citizens to put in the Diversity Visa Lottery.  Rather, the program issues up to 50,000 diversity visas each year to qualified applicants from U.S.-designated countries with low rates of immigration to enter the U.S. as permanent residents – if they win the DV lottery and successfully complete the immigrant visa or green card process.

To be eligible, applicants must be born in an eligible country. Natives of countries with relatively high rates of immigration – such as Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam – do not qualify.

Applicants must also have at least a high school education or its equivalent (successful completion of a 12-year course of formal elementary and secondary education); or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform the job.

After being selected in the lottery, applicants must clear a background check and demonstrate they have no health problems, criminal records, national security concerns, or other inadmissibility grounds barring them from the United States.

For more information on the current Diversity Lottery program, read Diversity Immigrant Visa – November Entry Deadline (Plus Other Things to Consider.

White House “Four Pillars” Immigration Framework and Its Influence on Congress

In some respects, the White House’s immigration framework takes a harder line on legal immigration than on young, undocumented immigrants – many of whom came to the United States as children without proper travel authorization or lawful admission.

Immigration Bills in the Senate

On Wednesday, February 14,  before the Senate voted on the four immigration bills, Trump issued a statement calling on Congress to support the Grassley proposal. He wrote, “The Grassley bill accomplishes the four pillars of the White House Framework: a lasting solution on DACA, ending chain migration, cancelling the visa lottery, and securing the border through building the wall and closing legal loopholes.”  He also asked all senators to oppose any legislation that fails to fulfill these four pillars.

Each bill needed at least 60 votes to advance in the Senate. The four proposals included:

Sen. Chris Coons (D-DE) and John McCain (R-AZ) Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included no funding for Trump’s border wall, but did include measures to improve border security.

Failed 52 to 47. Democrats were almost united in favor and Republicans mostly voted against it.

Sen. Pat Toomey (R-PA) Bill: withheld federal funding for municipalities (dubbed “sanctuary cities”) that refuse to enforce federal immigration policy through their local police officers and other state law enforcement agencies.

Failed 54 to 45. Republicans and a few Democrats backed it, but most Democrats voted against it.

Sen. Susan Collins  (R-ME), endorsed by Minority Leader Chuck Shumer (D-NY), Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border security; prevented DACA recipients from sponsoring parents for legal status.

Failed 54 to 45. Democrats almost unanimously supported it, along with eight Republicans.

Sen. Charles Grassley (R-IA), based on proposal backed by White House, Bill: provided path for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border wall; severely restricted legal immigration by limiting family-based immigration to spouses and minor children of U.S. citizens and ending diversity visa lottery program.

Failed 39 to 60. Democrats opposed the bill en masse, joined by a notable number of Republicans, while most of the GOP conference and a couple Democrats supported it.

Immigration Bill in the House

Immigration reform will be even harder for the more conservative House to tackle. Republican leaders are scrambling for sufficient votes on an immigration proposal in the House that is more restrictive than the Trump-backed Grassley bill in the Senate.

The immigration bill by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Homeland Security Committee Chairman Michael McCaul (R-Texas) offers a temporary, renewable legal status — rather than a path citizenship — to DACA holders in exchange for funding Trump’s border wall, cracking down on so-called sanctuary cities, requiring U.S. employers to use the E-Verify system to check the immigration status of job applicants, restricting family-based immigration, and scrapping the diversity visa lottery program.

Although Trump has expressed support for this bill, it is expected to meet its demise in the divided Senate, even if it passes through the House.

Worries Prevail With No Clear Path to Immigration Reform

If limiting family-based immigration and ending the Diversity Visa Lottery program are non-negotiable components of a White House-backed immigration plan, Congress faces steep obstacles in creating a legislative solution for Dreamers or DACA holders.

Worries prevail as the immigration fate of Dreamers and DACA holders hang in the balance, and some family-based immigration and the diversity visa lottery program are potentially on the chopping block.

In the meantime, eligible DACA holders may file renewal applications according to the latest USCIS policy, while federal court litigation ensues. U.S. citizens and permanent residents may also continue to file family-based petitions for certain relatives, and applicants from eligible countries may seek diversity immigrant visas under existing programs. Any change to U.S. immigration law is expected to apply prospectively and have no retroactive effect.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Diversity Immigrant Visa – November Entry Deadline (Plus Other Things to Consider)

The Diversity Visa allows persons from countries with low rates of immigration to the U.S. to become lawful permanent residents – if they win the DV lottery and successfully complete the immigrant visa or green card process.

Most DV lottery winners live outside the United States and immigrate to the U.S. by obtaining the visa at their U.S. Consulate. When they land in the U.S., the customs officer endorses their visa, which serves as temporary evidence of their permanent residence. The green card is mailed to them in a few weeks at their U.S. address. A smaller number of DV lottery winners are already in the U.S. in nonimmigrant or other lawful status. They file for DV-based adjustment of status with USCIS and, if approved, are mailed a welcome notice and then their green card.

How many Diversity Visas are available each year? 

Starting on October 1 of each year, the U.S. State Department administers the DV Lottery to provide diversity immigrant visas to persons from countries with low rates of immigration to the U.S. in the last five years. Diversity visas are distributed among six geographic regions and no single country may receive more than seven percent of the available DVs in any one year.

When to Enter

Entries for the Diversity Visa Lottery must be submitted electronically between 12 pm (Eastern Time) in early October and 12 pm (Eastern Time) in early November of the fiscal year, as specified at the U.S. State Department website: https://www.dvlottery.state.gov/. Register early to avoid system delays in the last days of the entry period.

Who Can Enter

Applicants are selected through a randomized computer drawing. They must meet simple, but strict, eligibility requirements to qualify for a diversity visa.

Requirement #1: Applicant must be born in an eligible country (with two exceptions).

Countries with more than 50,000 natives immigrating to the U.S. in the previous five years are ineligible. Natives of some countries do not qualify. For example, natives of all countries except the following may apply for DV-2017:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons who are ineligible due to their country of birth may be able to qualify if:

  • Their spouse was born in an eligible country. They could claim the country of birth of their spouse.
  • They were born in an ineligible country in which neither of their parents was born or legally resided at the  time of their birth. They could claim  the country of birth of one of their parents if it is a country whose natives are eligible for the DV.

Requirement #2: Applicant must have the necessary education or work experience.

Applicants must have either:

  • At least a high school education or its equivalent, defined as successful completion of a 12-year course of formal elementary and secondary education; OR
  • Two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform the job.

How to Enter

There is no cost to register for the DV lottery.  DV applicants must submit an online Electronic Diversity Visa Entry Form (E-DV Entry Form or DS-5501) and a digital photograph at www.dvlottery.state.gov by 12 pm Eastern Time on the November due date.

Failure to list your eligible spouse will result in your disqualification as the DV principal applicant and refusal of all visa applications in your case at the time of the visa interview. You must list your spouse even if you plan to be divorced before you apply for a visa. A spouse who is already a U.S. citizen or LPR will not require or be issued a visa, but you will not be penalized if you list them on your entry form.

Failure to list all your eligible children will result in your disqualification as the DV principal applicant and refusal of all visa applications in the case at the time of the visa interview. Eligible children include:

  • all living natural children;
  • all living children legally adopted by you; and,
  • all living step-children who are unmarried and under the age of 21 on the date of your entry, even if you are no longer legally married to the child’s parent, and even if the child does not currently reside with you and/or will not immigrate with you.

Married children and children who are aged 21 or older when you submit your entry are not eligible for the DV program. However, the Child Status Protection Act protects children from “aging out” in certain circumstances. If your DV entry is made before your unmarried child turns 21, and the child turns 21 before visa issuance, he/she may be treated as though he/she were under 21 for visa-processing purposes. A child who is already a U.S. citizen or LPR is not eligible for a Diversity Visa; you will not be penalized for including or omitting them from your entry.

Incomplete entries will not be accepted.  No late entries or paper entries will be accepted.

Each person is allowed only one entry.  Multiple entries on behalf of one person will all be disqualified.

After you submit a complete entry, you will see a confirmation screen containing your name and a unique confirmation number. Print this confirmation screen for your records.

The Department of State issues the complete instructions each year. The instructions for the 2017 Diversity Immigrant Visa Program (DV-2017) are available here.

How to Obtain a Diversity Immigrant Visa

Entering the DV Lottery is just the first step to becoming a diversity immigrant. You also need to be selected and obtain an immigrant visa (if you are outside the U.S.) or adjustment of status (if you are in the U.S.) by the end of the fiscal year (e.g. September 30, 2017 for the DV-2017 program).

From May 3, 2016 through September 30, 2017,  2017 DV Lottery entrants will need to visit www.dvlottery.state.gov, click on the Entrant Status Check link, and enter their confirmation number and personal information to check the status of their entry. You must use Entrant Status Check to confirm if you have been selected for the DV lottery and to check your immigrant visa interview appointment date. The U.S. government will not inform you directly.

Entrants who are selected may apply for permanent residence in the fiscal year, which is October 1 through September 30. The earliest they may apply for an immigrant visa at the U.S. Consulate (if they are outside the U.S.) or adjustment of status before USCIS (if they are in the U.S.) is October 1.They must also obtain their immigrant visa or adjustment of status by September 30, the end of the fiscal year.

No diversity visas can be issued and no DV-based adjustments can be approved after September 30th. Family members also may not obtain DVs to follow-to-join the principal applicant in the United States after this date.

Although there is no DV registration fee, consular processing or adjustment of status processing fees apply. Moreover, applying for the visa at the U.S. Consulate or filing for adjustment at USCIS is more complicated than entering the lottery.

Caution!

Being selected in the DV lottery doesn’t guarantee you will get the visa or green card. There are more lottery winners than there are actual visas available. When an allocation cut-off number is shown in the State Department’s monthly Visa Bulletin, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number.

Keep in mind that if you apply for DV-based adjustment of status or a diversity immigrant visa, you are showing you have immigrant intent. So if you do not get the green card or diversity visa, you will face challenges qualifying for a B-2 visitor visa, F-1 student visa, or other visas that require nonimmigrant intent.

Police clearances and background checks are part of the process, which can cause delays. Diversity immigrant visa applicants must provide police clearance certificates from every country, except the U.S., where they have resided since age 16. Adjustment of status applicants do not have to submit police clearances, but they still need to get their biometrics taken and pass the FBI background check.

Plus, a DV applicant may be inadmissible to the U.S. for criminal-related reasons, prior immigration violations (e.g. falling out of status, accruing unlawful presence in the U.S. or being ordered removed from the U.S.), or other factors.  Inadmissibility means you are prohibited from entering the U.S. under federal immigration law.

If you are inadmissible to the U.S., you must obtain a waiver by filing a Form I-601 or Form I-212 before you may receive the diversity visa or DV-based adjustment.  You would have to meet the strict eligibility requirements for these waivers. And for some grounds of inadmissibility, there is no waiver available. On average, it takes 6 to 12 months to receive a decision on a waiver request.

If an inadmissibility bar applies to you, you should consult an immigration attorney to determine whether you qualify for a waiver to receive the visa or adjustment to permanent residence. An experienced attorney can help you prepare a strong waiver application and request an expedited approval to meet the September 30th deadline.

Even if you don’t need a waiver, an immigration attorney can also help you prepare the immigrant visa or adjustment application properly, and avoid unnecessary delays and missteps.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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