US Immigration News Archive 2004

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2004 News :
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December 27, 2004
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Changes to H1-B and L-1 Visa categories

On December 8, 2004 President Bush signed into law the H-1B and L-1 Visa Reform Acts of 2004.  While the law offers some good news in terms of more H-1B visas becoming available for visa applicants who have earned a graduate degree from a US university, it also introduces restrictions on the L-1 visa category and will result in higher fees for both H-1B and L-1 visa applications. 

Not all provisions of the new law go into effect immediately, so if you are filing an H-1B or L-1 visa application in the near future, be sure to speak with your attorney to understand how you may or may not be affected.

 

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Changes to the H1-B Visa Category 

First, the good news.  Although the new law does not increase the H-1B quota (or “cap”) – which currently stands at 65,000 – it does create 2 new categories of exempt applications that are not counted against the cap.

First, there will be an exemption of 20,000 for H-1B applicants who have earned a graduate degree – either a master’s or higher degree – from an American university.  After those 20,000 slots are filled, subsequent applications from qualified applicants will be counted against the cap. 

Because the cap for the current fiscal year (FY 2005) has already been reached, this provision of the law brings welcome relief.  But, since the 20,000 additional slots will not be available until March 8, 2005 , the USCIS has not yet issued instructions on how to file applications.  Those instructions should be issued in the near future, when there is sure to be a rush of filings.  If you think that you may qualify to take advantage of one of the soon-to-be-available visas, speak to an attorney immediately so that your application can be submitted as soon as the USCIS starts accepting them.

Second, J-1 medical graduates who have received waivers under the Conrad 30 program also now will be exempt from the H-1B cap.  Even better, such applications can be submitted immediately and there is no limitation on the number of applicants who can benefit from this provision.

But, while the new law offers some relief from the H-1B cap, it comes at a high price, literally as the new law introduces (or reintroduces in some instances) higher application fees. 

First the ACWIA fee – a fee used to train US workers and which has not been collected since October 1, 2003 – is being reintroduced and increased from $1,000 to $1,500.  Employers with less than 25 full-time employees will only have to pay $750 (as compared to $500 previously).  Those employers that were previously exempt from the ACWIA fee (universities, non-profit research organizations, primary and secondary schools, etc.) will continue to be exempt.  The ACWIA fee became effective as of December 8, 2004 .

Additionally, the new law introduces a new fee – the Fraud Prevention and Detection Fee (or anti-fraud fee) – of $500 that will become effective on March 8, 2005 .  All initial petitions (Form I-129) for H-1B status will have to pay the anti-fraud fee as well as those filed for employees changing H-1B employers.  It will not have to be paid, however, when an application to amend or extend H-1B status with the same H-1B employer.

The ACWIA and anti-fraud fees will be charged in addition to the basic processing fee of $185 and also in addition to the optional $1,000 fee for premium processing for 15-day processing.

 

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Changes to the L1 Visa Category 

The new law affects the L-1 visa category in 3 areas.

First, employers will no longer be able to outsource L-1B workers.  The L-1B visa classification is for workers who have been transferred from overseas due to their specialized knowledge.  Essentially, the new law prevents employers from placing such workers at the work site of a third-party employer that is not under the direct control of the petitioning employer, thus precluding “job shops” from using the L-1B category.  This provision takes effect on June 6, 2005 and will affect both initial applications as well as applications for extension or amendment of status.

Second, all applicants for blanket L-1 status – which allows for expedited L-1 visa processing for employees of qualifying companies (generally large companies or companies that process a large number of L-1 visa applications) – will have to have at least 1 year of experience working for their employer overseas.  Currently applicants only have to have 6 months of work experience.  This provision of the law takes effect on June 6, 2005 but will only affect initial applications for blanket L-1 status.  Applicants who are granted L-1 blanket status prior to June 6 subsequently will still be able to renew their status, even if they only worked overseas for 6 months.

Finally, the $500 anti-fraud fee described above will also be levied against all initial petitions (Form I-129) for L-1 status as well as for those filed when an employee changes from one L-1 employer to another.  The $500 fee will also be charged for employees filing a visa application abroad under an L blanket petition (Form I-129S).  The fee, however, will not be charged to amend or extend L-1 status. 

As with the H-1B category, the $500 anti-fraud fee will be charged in addition to the basic processing fee of $185 and also in addition to the optional $1,000 fee for premium processing.  The new fee will apply to L-1 petitions filed after March 8, 2005 .

For the USCIS press releases concerning the new law, click below:

(H-1B) http://uscis.gov/graphics/publicaffairs/newsrels/H-1B_12_9_04.pdf

(L-1) http://uscis.gov/graphics/publicaffairs/newsrels/LVisa_12_9_2004.pdf

 

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July 15, 2004
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DOS Visa Revalidation Program ends on July 16, 2004

The Department of State (DOS) Visa Revalidation Program will end on July 16, 2004 .  This very convenient program allowed individuals with certain work-based temporary visas (C, E, H, I, L, O and P visas) to renew their visa by mail from the US without having to travel outside of the country.  

The DOS will continue to accept applications for the Visa Revalidation Program that are physically received on or before July 16, 2004 .  Applications received after that date will be returned to the applicant.  Once the program ends, applicants will have to obtain a new visa either from a US embassy or consulate in their home country or in a third country.  

It’s important to emphasize that the end of the Visa Revalidation Program will in no way affect your underlying immigration status.  The visa in your passport is only required for entry into the US .  Your visa is not the same thing as your immigration status, and you can be in lawful immigration status even if your visa has expired.  

Put most simply, your visa allows you to board the plane and travel to the US .  At the airport (or border if you travel by car from Canada or Mexico ), you’ll receive a Form I-94 (a small white card), which governs your status and the length of time you can remain in the US .  If your I-94 is expiring, then you’ll have to extend your status by submitting the appropriate application to the USCIS.  On the other hand, you only have to get a new visa if it has expired and you subsequently travel outside of the US .   

Let’s take the example of Tom from New Zealand .  On September 24, 2001 he received an H-1B visa from the US embassy in Wellington .  The visa placed in his passport is valid for 3 years, through September 2004.  After receiving his visa, Tom traveled to the US to begin work and arrived on October 1, 2001 .  Upon his arrival, he was given an I-94 with H-1B status until October 1, 2004 .   

The 3 years is almost up and Tom and his employer want to extend his H-1B status for another 3 years, as allowed by the law.  Their attorney will submit a new petition (Form I-129 & accompanying material) to the USCIS, and Tom’s H-1B status can be extended through October 1, 2007 .  

As for the H-1B visa in his passport, Tom only has to apply for a new visa if he plans to travel outside of the US .  If, hypothetically, Tom won’t leave the US for the next 3 years, he doesn’t even need a new visa.  Let’s presume, however, that Tom plans to travel in February 2005 to Belgium to visit his sister who is studying there.  In that case he’ll have to obtain a new H-1B visa in his passport to return to the US , and there are three possible options for getting the visa.   

Ideally, he may be able to apply for the visa at the US embassy in Brussels , if the embassy agrees to process his application.  Generally an embassy (or consulate) only processes applications for citizens and legal residents of that country, but it has the discretion to process applications from citizens of other countries.  Another alternative would be to apply for a visa, before even leaving for Europe , at a US consulate in Canada or Mexico through a process called Third Country National (TCN) processing.  To do so, Tom will have to make an appointment with the consulate and travel there in person.  His final option, of course, and the least attractive in this scenario, would be to travel back to New Zealand to apply for a new visa at the US embassy in Wellington .  

With the disappearance of the Visa Revalidation Program, it’s more important than ever that you plan accordingly for trips outside of the US , particularly if you travel a lot for work.  If you’re unsure if you need to renew your visa or for assistance in doing so, speak to your attorney BEFORE leaving the US .   

The DOS website offers more information on both the end of the Visa Revalidation Program and TCN processing through the following links:  

http://www.travel.state.gov/revals.html  

http://travel.state.gov/tcn.html

 

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July 7, 2004
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New SEVIS Fee to be Implemented on September 1, 2004

Beginning this fall, applicants for an F-1, M-1, or J-1 visa, as well as individuals in the US applying for Change of Status (Form I-539) to F-1, M-1 or J-1 status, will be required to pay a $100 SEVIS fee.  This new fee will be required in addition to the regular application fee.   

The Student Exchange Visitor Information System (SEVIS) was established in 2002 to maintain information on students (F-1 & M-1) and exchange visitors (J-1) in the US .  It covers individuals with F-1, M-1, J-1 status, as well as their family members.

The new SEVIS fee goes into effect on September 1, 2004, which means that you’ll only have to pay it if your Form I-20 (for F-1 and M-1 visas) or Form DS-2019 (for J-1 visas) is issued on or after that date.  If your I-20 or DS-2019 is issued before September 1, you won’t have to pay the new fee, even if you submit your application after that date.

Your family members applying for F-2, M-2 or J-2 status, however, will not be subject to the new fee.

The new SEVIS fee will be $100 for all F-1 and M-1 applicants, as well as most J-1 applicants.  F-3 and M-3 applicants will also have to pay the $100 fee.  J-1 applicants coming to the US as an au pair, a camp counselor or as part of a summer work/travel program, however, will only have to pay a reduced SEVIS fee of $35.  Also, J-1 applicants participating in an exchange visitor program that is sponsored by the US federal government will not have to pay the SEVIS fee at all.

In many circumstances it is possible that your school or J-1 program sponsor may incorporate the new SEVIS fee directly into the fees that you pay it and then pay the SEVIS fee for you.  If not, you’ll be responsible for paying the SEVIS fee yourself.

For the time being, if you do have to pay the SEVIS fee yourself, you’ll have 2 payment options, either by mail or by the Internet.  If paying by mail, you’ll have to submit a check or money order payable in US dollars.  If paying by Internet, you’ll be able to pay credit card.  In addition to the fee, you’ll also have to complete Form I-901.

Once the SEVIS fee is paid, you’ll receive a receipt which you’ll then have to show at your visa interview.  In order to ensure that you receive your receipt in time, you’ll have to pay the fee at least 3 days before your interview, unless paying by Internet, in which case you’ll be able to print out your receipt yourself at the time of making your payment.

If you’re a Canadian citizen and don’t need to obtain a visa, you’ll have to pay the SEVIS fee before applying for admission at the border.  If submitting a Change of Status application (Form I-539), you’ll have to pay the fee before submitting your application to the USCIS, which will then be able to verify automatically that the fee was paid.

For further information on the SEVIS fee, contact your school or your J-1 program sponsor, most importantly to determine if it will be paying the SEVIS fee for you or if you’ll have to pay it yourself.

 

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June 20, 2004
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Current H-1B Usage for FY (Fiscal Year) 2005

At the recent American Immigration Lawyers Association (AILA) Annual Conference held in Philadelphia , the USCIS announced that as of the end of May approximately 16,100 H-1B visas have already been approved for the 2005 Fiscal Year (FY) beginning on October 1, 2004 .  This means that approximately 25% of the FY 2005 quota of 65,000 visas has already been allocated and that invariably the H-1B cap will be hit well before the end of FY 2005, which will again leave a lot of potential H-1B workers stranded and unable to begin work for many, many months.

If you haven’t been following the H-1B saga, the key to understanding the problem is that there are only 65,000 H-1B visas available each fiscal year (the fiscal year runs from October 1 until September 30).  This quota (or “cap” as it’s referred to) only affects workers applying for their first H-1B visa and therefore does not concern a worker switching from an existing H-1B employer to a new one.  Also excluded from the cap are workers employed by universities and certain non-profit research institutions.  Once the 65,000 visas have been allocated and the cap has been reached for the Fiscal Year, a first-time H-1B applicant has to wait for the beginning of the new Fiscal Year to begin work. 

In February 2004, less than 5 months into the 2004 Fiscal Year, the FY 2004 cap was reached.  As a result, a first-time H-1B applicant can’t begin work until after October 1, 2004 and the start of FY 2005.  However, because an H-1B petition can be submitted up to 6 months before employment begins, the USCIS has been accepting H-1B petitions for FY-2005 since April 1, 2004 (for work to begin on or after October 1). 

Although it was initially feared that there would be a flood of petitions submitted in April and the FY 2005 cap would be reached shortly thereafter, not as many petitions were initially filed as expected.  Nonetheless, the recent USCIS announcement to AILA and its members means the cap could be reached before the end of this calendar year if the current rate of submissions continues.  In that case, first-time H-1B applicants would not be able to begin work until October 2005!!

What does this all mean in plain English?  If you’re considering filing for your first H-1B petition, do it as soon as possible!  Although you won’t be able to begin work until after October 1, you still need to file the petition now in order to avoid being cut off by the cap.  Once the cap is reached, you’ll then have to wait until October 2005 to begin work unless you qualify for some other category of visa.

My office has already submitted numerous H-1B petitions for clients to begin work in October, and we’d welcome the opportunity of preparing yours.  To find out more about the services and assistance we can provide to you and your employer, please contact our office.  Also, check this page regularly for more information on H-1B usage as it becomes available.

 
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June 17, 2004
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DV-2004 Lottery Update

The final months of processing for DV-2004 applications are now upon us, and all DV-2004 cases must be processed and approved before September 30, 2004 .  After that date, the DV-2004 lottery will be over, and the government cannot process any more DV-2004 cases.  In light of the looming deadline, this update will provide you with some hints on what to do and how to prepare if your DV-2004 case is still pending. 

Each month the US Department of State (DOS) publishes the Visa Bulletin, which lists the DV cases that will be processed for the next two months.  The bulletin is available on the DOS website at:

http://travel.state.gov/visa_bulletin.html

The July 2004 bulletin, which was issued on June 8, lists the case numbers that will be processed and scheduled for interview through August. 

If your case number is BELOW that listed for your region and you have not yet been contacted concerning your interview at the US embassy, you need to make sure the lawyer representing you immediately contacts the DOS about the status of your case as there could be a problem somewhere. 

If your case number is ABOVE that listed, you’ll have to wait for the release of the next bulletin to see if your case will be processed in the months to come.

An example always makes things easier to understand, so let’s take the case of Peter from Zambia .  His case number is AF 34,500 – the AF indicates the Africa region.  According to the July bulletin, his case won’t be ready for processing in either July or August.  Hopefully he’ll be interviewed in September.  Based on how the DOS has been progressing through the case numbers, he should have his interview in time, but there’s no guarantee.  Remember, there are only 50,000 visas available through the lottery, and they could all be allocated September 30.  Conversely, it’s also possible that the September 30 deadline arrives without all 50,000 visas being issued.

Once Peter has an interview, he’s not totally in the clear yet.  His application will actually have to be approved and he’ll have to receive his visa in his passport before September 30.  Along the way there are numerous obstacles that can pop up, so it’s important that everything be in order before your interview to avoid such delays or to be able to resolve them as quickly as possible.  There will be very little time after the interview to sort things out. 

Incomplete visa applications and missing documents are one problem area that can easily be avoided by careful preparation.  The DOS has very specific country-by-country guidelines about the documentation that must be submitted with each visa application, and providing the wrong version of your birth certificate, for example, could result in a delay.  Hopefully you have selected a properly qualified immigration lawyer to see to all these matters!

More seriously, the embassy official could have questions about your underlying eligibility to get a visa.  Some of the more common legal questions that could arise are:

·        Do you actually have the equivalent of a high school diploma or, alternatively, the correct work experience?

·     Did you ever commit a crime that might now prevent you from getting a visa?

·     Were you previously in the US and violate your immigration status so that you now are prohibited from returning?

·     Can you show that you will be able to support yourself (and your family) once you are in the US ?

If you have any questions about your application and eligibility or if you already have had your interview and have run into one of the infamous roadblocks mentioned above, you should seek the assistance of an immigration attorney right away. 

Every year many lottery winners contact my office for assistance with their visa applications but unfortunately some of them contact me too late for me to help in any way.  For such cases they simply have to abandon their chance of getting their visa.

Although deceptively simple in appearance, getting a visa through the lottery is as complicated as any other visa application.  Don’t leave the success of your application to chance! Make sure you seek guidance and assistance from a properly qualified professional at the earliest possible stage. 

 
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February 16, 2004
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Processing changes at the Boston District Office

Starting on Tuesday, February 17, the Boston District Office will no longer offer same-day issuance of  Advance Parole documents or work permits (i.e., Employment Authorization Documents).  This change concerns individuals who already have pending adjustment of status (i.e., green card) applications with the office or who will be submitting their applications in the future.

Although you will still be able to submit your I-131 and I-765 applications in person at the Boston office, the application(s) will then be sent to the National Benefit Center (NBC) in Missouri for processing.  The Boston office, of course, will still be responsible for conducting adjustment interviews.

This change in processing, referred to as “Indirect Filing,” is part of a larger USCIS strategy to centralize processing for family-based adjustment applications through the NBC.  Many local offices have already switched over to it, and others will follow in the months to come.

Unfortunately, Indirect Filing will now mean long delays in getting Advance Parole documents and work permits.  The Boston office had been one of the rare offices nationwide to issue such documents on the same day, but alas those days are no over!

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February 13, 2004
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Not many H-1B visas left for this year

Earlier this week the USCIS notified the American Immigration Lawyers Association (AILA) that the cap (or limit) of 65,000 H-1B visas available for this fiscal year (which runs until September 30, 2004) has not yet been reached and that, for the time being, it will continue to accept new H-1B petitions.  

Throughout the week, there were “rumors” that the cap would be reached effectively ending H-1B processing until October, but fortunately those rumors turned out to be incorrect.  All the same, it is very likely that the cap will be reached in the very near future, and at that point the USCIS will stop accepting new H-1B petitions.  

If you plan on applying for an H-1B visa, do so immediately!  Otherwise you will have to wait, at a minimum, until October and the beginning of the new fiscal year for your petition to be processed.

 

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January 16, 2004
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Immigration Reform Back on the Table

Last week President Bush relaunched the debate on immigration reform when he introduced his proposal for a new temporary worker program.  Although the details of President Bush’s program have yet to even be defined, his announcement on January 7 outlined its very broad parameters:  

·         It would offer temporary worker status to both individuals who are already in the US and those outside of the country.  Individuals illegally in the US would be eligible to participate at the outset.  In the future, however, only people outside of the US would be able to join the program.

·         The program would only offer temporary status.  It would not lead to permanent residency (i.e., a green card) and in this sense would not be an amnesty.  The last time an amnesty was enacted was in 1986.

·         Workers would receive a three-year, renewable visa.  Afterwards they would have to return to their home country. 

·         Visas would be available for workers performing all types of work – the current visa system favors workers in skilled, professional positions.

·         Workers under the new program would be able to freely travel in and out of the US.  

A considerable number of questions about this proposal are still left unanswered, and needless to say, it is only an opening salvo in the debate on immigration reform.  With the upcoming presidential elections, immigration reform will surely be a hot topic as both Republicans and Democrats court ethnic voters.  

It could take months, a year, or even longer before any new law is passed and enacted. 

In the US , the path for a proposal to become a law is long and tortuous. 

Once a proposal is formally introduced as a bill in Congress, both houses of Congress must first agree on its terms.  Next, the President must then give his final approval before it can become law.   All along this path to becoming a law – if it even reaches this stage – a bill can change in a hundred different ways, becoming more (or less) favorable to immigration.  Most bills do not even become law.  

Stay tuned for updates but don’t hold your breath too long!  The last time immigration reform was discussed was in 2001.  The tragic events of September 11, however, postponed any further action until now.   

For more information on the President’s initiative, visit the White House Internet site at:  

http://www.whitehouse.gov/news/releases/2004/01/20040107-1.html

 

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January 6, 2004
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New regulations for people travelling to the US with a visa

Yesterday the US government implemented the first phase of its new program aimed at creating a comprehensive system to record the arrival and departure of individuals traveling to the US with a visa.  

When fully implemented, this new program, referred to as US-VISIT, will require individuals to have their fingerprints and a digital photograph taken upon both their arrival and departure from the US .  

Not everyone, however, will be subject to US-VISIT.  Only individuals traveling with a nonimmigrant (i.e., temporary) visa are affected.  US permanent residents (i.e., people with a green card) will not be fingerprinted or photographed.  Furthermore, the following visa categories are exempt: A visas, C-3 visas, G visas, and NATO visas.   

Also exempt are children under the age of 14 and persons over 79, as well as individuals traveling under the Visa Waiver Program (VWP).  The VWP countries include: Andorra , Australia , Austria , Belgium , Brunei , Denmark , Finland , France , Germany , Iceland , Ireland , Italy , Japan , Liechtenstein , Luxembourg , Monaco , the Netherlands , New Zealand , Norway , Portugal , San Marino , Singapore , Slovenia , Spain , Sweden , Switzerland , and United Kingdom .  

Note, however, that someone traveling from a VWP country (e.g., the United Kingdom ) with a visa is subject to US-VISIT.  For example, a UK national traveling with an H-1B visa is subject to US-VISIT whereas his fellow citizen traveling without a visa under the VWP for a 2 week holiday is not.  

Under the new US-VISIT procedure, an immigration inspector will digitally scan a traveler’s fingerprints and photograph upon arrival – a process that is expected to only take 15 seconds – and then the person will “check himself out” by using a self-service “exit kiosk” when leaving the US.  

Failure to comply with the US-VISIT requirements, particularly when leaving the country, could later result in someone being denied a visa or subsequent entry into the US .  

As currently implemented, however, US-VISIT is not yet fully functional.  First, the government is only processing individuals upon arrival and not yet upon departure, with the exception of people flying out of Baltimore/Washington International (BWI) Airport in Baltimore , Maryland and those sailing out of the port of Miami , Florida .  The government will be installing additional exit kiosks, as part of a pilot program, in the months to come until ultimately, sometime in the (distant?) future, all individuals leaving the country will have to check themselves out.  

Second, this first phase of US-VISIT only covers individuals arriving by plane or boat.  It has not yet been implemented at land crossings.  As of yesterday, 115 airports and 14 seaports began processing people under US-VISIT.  It is expected that this year nearly 23 million people will be processed at these airports and seaports.  US-VISIT is supposed to be in place at the 50 busiest land crossings by the end of this year.  

For further information on US-VISIT, visit the Internet site of the US Department of Homeland Security at:  

http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0333.xml

 

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January 2, 2004
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Diversity Visa Lottery

The application period for last year’s Diversity Visa Lottery (DV-2005) ended on Tuesday, December 30.  Despite the extended, two month application period, the number of DV applicants dropped dramatically this year.  According to press reports, the number of applications fell from nearly 13 million last year to approximately 6 million this year.

This dramatic drop is due to the fact that beginning this year lottery applications had to be submitted electronically through the Department of State’s (DOS) website.  This Internet-based application procedure affected the number of applications in several ways.  To begin with, it prevented individuals from submitting duplicate applications.   

Next, potential lottery applicants, particularly those in the US illegally, were reluctant to submit information about themselves to the US government for fear that the information could ultimately be used to track them down and deport them or, for individuals outside of the US, to prevent them from entering the US.

Finally, and perhaps more importantly, the low number of applications can also be explained by technical problems with the Internet-based application procedure itself.  To begin with, individuals without Internet access could not submit an application.  Those with Internet access but who waited until the last minute to submit their application encountered even greater frustration as the DOS computer servers were unable to handle the last-minute tidal wave of applications.  Many potential applicants were unable to access the DOS lottery page, and those lucky enough to do so often were cut off half way through the application process.  For many, the on-line registration process became an all-day nightmare, often not even resulting in their being able to submit their lottery registration.  

My office successfully submitted all applications for our clients who timely provided us with their material.  Moreover, with the new Internet-based application system, we were able to submit more than double the number of applications this year, and we now look forward to having twice as many lottery winners!  

Lottery winners will be notified between May and June 2004.  They will then have to receive their green card between October 1, 2004 and September 30, 2005.  

This year’s lottery (DV-2006) will invariably be held between November and December 2004.  In August 2004, the DOS will announce the official registration period as well as any changes to the registration process.  For those applicants who missed last year’s deadline, we have already begun to prepare their application’s for this year’s lottery, and we welcome the possibility of assisting you.  Contact my office directly for more information or consult the lottery page of my website, which will be updated with instructions for DV-2006.   

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 Other News :

For information concerning other years, we invite you to visit the corresponding page. Select the year you want to research :   

   
bullet2003 US immigration News Archive
bullet2002 US immigration News Archive
bullet2005 News

 

 

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