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IMMIGRATION UPDATE:
H-1B CAP, ANNUAL GREEN CARD LOTTERY, AND CHANGES IN VISA PROCESSING
AT U.S. CONSULATES ABROAD
By Christopher
R. Helm and Richard
M. Rawson
[October 2003]
The purpose of this advisory bulletin is to provide
a brief update on recent changes in U.S. immigration law.
Cap on H-1B Petitions. Effective
Oct. 1, 2003 (the start of the U.S. government’s new fiscal
year), the annual cap on the number of new H-1B petitions reverted
back to 65,000 (it had been increased to 195,000 for the past couple
of years). The H-1B cap does not apply to extensions of existing
H-1B petitions or to H-1B petitions filed by certain educational
and nonprofit institutions. Unless and until Congress acts to introduce
new legislation, the H-1B filing fee also is reduced from $1130
to $130. Employers who are considering filing new H-1B petitions
during the coming year are advised to file them as early as possible.
It is too early to know for sure, but it is possible that the H-1B
cap could be reached by the spring of 2004, in which case new H-1B
petitions would be unavailable until Oct. 1, 2004.
Annual Green Card Lottery. The Diversity
Immigrant Visa Program (DV-2005) administered by the U.S. Department
of State (DOS) makes available 50,000 green cards per year to persons
from countries with low rates of immigration to the United States.
The registration period for DV-2005 is between Nov. 1 and Dec. 30,
2003. DOS has posted detailed instructions for the upcoming registration
on its website at http://travel.state.gov/dv2005.html. For the first
time this year, all registrations must be submitted electronically.
Winners are chosen by a computer-generated random lottery drawing
and are usually notified in the spring or summer following the registration
period. Natives of the following countries are ineligible to participate
in DV-2005: Canada, China (mainland-born), Colombia, Dominican Republic,
El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines,
Russia, South Korea, United Kingdom (except Northern Ireland) and
its dependent territories, and Vietnam. Persons born in Hong Kong,
SAR, Macau SAR and Taiwan are eligible. Applicants who submit more
than one entry or fail to follow the strict registration instructions
will be disqualified.
Changes in Visa Processing at U.S. Consulates
Abroad. DOS published a new rule on July 7, 2003 requiring
personal interviews for most visa applicants. The rule became effective
Aug. 1, 2003 and has caused significant delays in visa processing
at most U.S. consulates abroad. The personal interview requirement
does not apply to individuals who are applying to renew an existing
visa. It also does not apply to Canadian citizens (who are generally
visa exempt) and citizens of 27 countries who are visiting the United
States for business or pleasure under the “visa waiver program.”
Visa processing also has been affected by increased security background
checks of persons employed in occupations on the DOS Technology
Alert list. Delays of 30-60 days are not uncommon in many such cases.
On Aug. 18, 2003, DOS also published a final rule eliminating “automatic
visa revalidation” for individuals who apply for a new visa
while traveling abroad. The final rule is substantially the same
as an interim rule that had been in effect since Mar. 7, 2002. Prior
to that time, persons who traveled to Canada or Mexico for less
than 30 days could reenter the United States with an expired visa,
so long as they had a valid approval from U.S. immigration extending
their stay in the United States. Under the new rule, “automatic
visa revalidation” no longer applies to persons who apply
for a new visa while in Canada or Mexico. Thus, if the new visa
is delayed or refused for any reason, the person may be prohibited
from reentering the United States and may be forced to return to
his or her home country. Thus, it is extremely important to consult
with an immigration lawyer before applying for a new visa in Canada
or Mexico.
If you have questions or would like more
information, please contact any member of DWT’s immigration
practice team, including:
Christopher R.
Helm, Seattle, (206) 628-7671, ChrisHelm@dwt.com
James M. Mei, Portland,
(503) 778-5315, JimMei@dwt.com
Richard M. Rawson,
Seattle, (206) 628-7746, RichRawson@dwt.com
This Immigration Alert is a publication
of the Immigration Department of Davis Wright Tremaine LLP. Our
purpose in publishing this Alert is to inform our clients and friends
of recent developments in immigration law. It is not intended, nor
should it be used, as a substitute for specific legal advice as
legal counsel may only be given in response to inquiries regarding
particular situations.
Copyright © 2003, Davis Wright Tremaine
LLP.
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