The US Department of Homeland Security (DHS) announced a proposed rule on Friday, November 30, 2018. The new provisions, if approved. would implemented two main changes to the current way of conducting the H-1B cap lottery. The changes would only affect employers who are filing new, cap-subject, petitions. The process for H-1B extensions or amendments is unchanged.
(a) Employers would have to register online before submitting a full H-1B petition. The registration process would ask for information about the company and about the foreign worker. Employers need to send a separate registration for each proposed H-1B employee and registration will start 14 days before the cap season starts (April 1).
(b) USCIS will change the order in which it selects cases in the lottery. Currently, CIS selects the 20,000 Master's degree cap petitions first. Unsuccessful applications are then added to the general pool, and a second lottery is conducted for the 65,000 regular H-1B cap number. The new rule proposes to reverse this - selecting the 65,000 first and then selecting the 20,000 Master's cases from those that were not selected in the first round. CIS estimates that this change would result in approximately 16% more (or 5,340 workers) Master's degree holders being selected in the lottery.
Employers will only need to file full petitions and supporting evidence if their case is selected in the H-1B lottery. This should reduce the cost to employers, who have needed to file a full H-1B package even if the case was not ultimately chosen for processing. The full petitions would be filed within 60 days of the lottery, and CIS might allow for different filing periods to stagger the workload.
For more information about these changes, or other immigration questions, contact Elaine Martin for a free initial phone consultation.
Ms. S. and her husband wanted to invest in a hotel/housing business in an under-served part of the United States. Ms. S. had created a US company, investigated opportunities and invested a small amount of the start-up costs.
After starting the visa application process themselves, the couple contacted Elaine Martin to file an E-2 package with the consulate in Toronto.
We had very little time to prepare the application before the clients hoped to enter the US. In addition, there was no business plan and a complicated source of funds trail. Elaine Martin worked with a third party to create the business plan (requiring multiple rewrites), researched the local business needs by contacting local government officials to discuss the housing shortage, prepared a detailed spreadsheet tracing the funds, and compiled the E-2 package to conform to the consulate's strict requirements regarding format and size.
On November 14, 2019, Ms. S and her husband were thrilled to be approved for the E-2 visas in Toronto.
The Martin Law Office wishes the couple many years of success and looks forward to seeing the new business expand and grow!
I don't usually toot my own horn in this blog, but I am particularly happy with this outcome.
A client was referred to me by a larger law firm. The client (a company in Europe) needed to send an employee to the US for about six months. The client (Company A) was contracted by Company B to provide telecom services, which would be performed for Company C. My new client was worried about losing the lucrative contract with Company B if they couldn't find a solution.
Normally, a multinational transferee would come to the US in L-1 status. However, the contracting arrangement made that option more difficult, because of USCIS restrictions on placing L-1 holders at third-party worksites. Further, the L-1 processing time meant that the assignee might not be approved when needed (assuming he was approved at all).
We considered an E-2 (treaty investor), but Company A was ultimately owned by individuals who did not qualify for treaty status.
The answer was a visa called "B-1 in lieu of H-1B." This is not a very common visa, but perfect for this situation. The visa allows people to come to the US to perform services that would normally qualify for H-1B (specialty occupation) status, if the worker is staying on the foreign payroll, being paid from outside the US and the assignment is very short. The visa is not the same as a regular B-1 business visitor, and requires specific paperwork for the consulate application.
We drafted a detailed letter for the consulate, explaining how the foreign national and assignment qualified and using appropriate legal arguments. To our delight, the visa was approved a few days later!
The client was thrilled (as evidenced by the number of exclamation marks she used ;)) and I was almost as excited!
"They just called D_____ from the Embassy and they told him to go there tomorrow with his passport so that they can put the visa on it !!!
That was really quick!!! I can’t believe it’s true!!! J
Thank you so much Elaine!!!"
For information about this visa, H-1Bs, L-1s, or any other employment-based immigration, contact Elaine Martin for free initial consultation.
The US Department of State (DOS) has published instructions for the next round of the Diversity Visa (DV) lottery here.
The online entry registration period for the DV-2020 lottery is Wednesday, October 3, 2018 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and ends on Tuesday, November 6, 2018 at 12:00 noon EDT.
What is the Diversity Visa program?
Congress established the diversity visa program through the Immigration Act of 1990 in an effort to promote immigration from countries underrepresented in the United States. In the DOS's own words:
DVs are intended to provide an immigration opportunity for persons who are not from “high admission” countries. U.S. law defines “high admission countries” as those from which a total of 50,000 persons in the Family-Sponsored and Employment-Based visa categories immigrated to the United States during the previous five years. Each year, U.S. Citizenship and Immigration Services (USCIS) counts the family and employment immigrant admission and adjustment of status numbers for the previous five years to identify the countries that are considered “high admission” and whose natives will therefore be ineligible for the annual Diversity Visa program.
What is the screening process?
Diversity visa applicants undergo the same screening process as all intending permanent residents. This includes a background (criminal) and medical check and all are interviewed by a US government official before approval.
In addition, every DV entrant must have at least a high school education or its equivalent or have two years of work experience within the past five years in an occupation that requires at least two years of training or experience.
President Trump has alleged that DV holders are "the worst of the worst." In 2017, he stated "[t]hey give us their worst people, put them in a bin... they're picking the worst of the worst..." (link) This is a gross mischaracterization of the DV program - and insulting to DV entrants like me. As mentioned, DV holders are screened before approval. The US government, not the DV holders' governments, decides who gets approved. Finally, DV holders apply voluntarily, they are not sent by anyone.
What countries are eligible?
It is easier to list the countries that are NOT eligible. For DV-2020, natives of the following countries are not eligible to apply (because more than 50,000 natives of these countries immigrated to the United States in the previous five years): Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Even if you were not born in one of the eligible countries, you might be able to claim that country if (a) your spouse is from that country, or (b) one of your parents was born in an eligible country. For full details of how this works, see
Do I need a lawyer to help?
No, you do not need a lawyer to help with the application. Please be very wary of anyone who suggests that they can influence your chances of success, or states that your chances are better if they "help" with the application. If you believe that someone is making such a false claim, please contact this resource:
As a "winner" of the lottery myself, 24 years ago, I encourage everyone who is eligible to apply as early as possible. The odds may be long -- but they are even longer if you don't apply. Good luck!
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.