The Green Card Lottery: A 50 Cent Gamble

The green card lottery is an annual program run by the State Department since 1990 randomly allocating 50,000 green cards to individuals from countries that have a low rate of immigration to the United States. It is officially known as the Diversity Visa Program.

The program is not without controversy and has been an opposed by Republicans and supported by Democrats.

This year registration opened on October 1, 2013 and remains open until November 2, 2013. There is no cost to participate and the requirements are minimal. An applicant must have a high school education or its equivalent or two years of work experience within the past five years in an occupation requiring at least two years' training or experience.

Natives of the following countries are excluded this year from applying, because they have sent a total of more than 50,000 immigrants to the U.S. over the past five years:

• Bahamas
• 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
• Vietnam

Applicants can apply for the lottery from anywhere in the world, and can reapply every year.

If an individual "wins" the lottery they have an approximately 50% chance of getting the green card because  twice as many people are selected than there are visas available in order to meet the full visa quota. Winning applicants can bring their spouse and children under the age of 21 with them to the United States.

This program is particularly useful for individuals who wish to come to the United States but do not have the possibility of family or employer sponsorship. It is advisable if a married couple is applying, for both spouses to register separately because if either is selected they will be able to bring their spouse. Since the repeal of DOMA same-sex spouses are also now eligible to accompany their spouse to the United States.

The Government Shutdown and Immigration

The agencies handling immigration matters under the Department of Homeland Security are largely unaffected by the government shutdown.

U.S. Citizenship and Immigration Services (USCIS) is open for business for all fee for service activities. This means that applications and interviews for various benefits including the green card and naturalization are moving forward.

Immigration Customs and Enforcement (ICE) is also continuing its detention and enforcement operations.

Meanwhile, the Executive Office for Immigration Review (EOIR) or Immigration Court, which is under the auspices of the Justice Department, is only handling removal cases for individuals who are in custody. Removal cases for individuals who are not detained are being continued or held in abeyance.

The Washington Post has a great round up of how other government agencies are impacted by the shutdown.

Please Proceed to the Back of the Line, Your Estimated Wait Time is 23 Years

By: Danielle Huntley, Esq.  

I have heard many times from folks on the left and the right that foreigners who wish to immigrate to the U.S. should ideally wait in line for a visa or a green card. I have also heard that illegal aliens should go to the back of the line if they are granted some type of amnesty. But, when pressed, very few can articulate what exactly the line is and who waits in it. Here I am hoping to help, by explaining the mythical line in layman’s terms.

First, some initial definitions are important. All foreigners who come to the U.S. on a visa are divided into one of two categories: immigrants and non-immigrants. An immigrant holds the immigrant visa or, as it is commonly known, the green card. They are legal permanent residents of the U.S. Non-immigrants hold non-immigrant temporary visas like tourist visas, work visas and student visas.

With that out of the way, back to my original question –what exactly is the line and who waits in it?

The line refers to foreigners waiting for the green card. While there are restrictions on certain types of non-immigrant visas they are better understood as quotas, rather than a line.

An immigrant’s place in line for a green card is determined by the date an immigrant petition is filed on their behalf by either a family member, an employer or, in limited instances, for themselves.  The date the petition is filed gives the immigrant their priority date which controls their place in the line.

The line is controlled by the Visa Bulletin put out monthly by the State Department.  Here’s where one of the biggest misconceptions about the line falls apart– there is not a singular line. There are at least 65 different lines for different categories of immigrants.

Each category of immigrant listed in the Visa Bulletin has a cutoff date, which means that USCIS is issuing green cards for immigrant petitions filed in that category before that date. If the Visa Bulletin’s cutoff date in a category is January 1, 2005 then all immigrants in that category with a priority date before January 1, 2005 can be issued green cards.

These lines move at vastly different paces. For some immigrants their time in line lasts as long as it takes USCIS to process the petition, for others the wait can be decades long.

Who has the longest wait for family based petitions? According to the October 2012 Visa Bulletin immigrants in these four categories have the longest wait times:

1. Siblings of U.S. Citizens from the Philippines have the longest wait, a whopping 23 years long.  Their cutoff date is February 8, 1989. (I was in preschool when these petitions were filed).
2. Married children of U.S. Citizens from the Philippines come in at second place with just more than a 20 year wait. Their cutoff date is July 22, 1992.
3. Unmarried children of Permanent Residents who are 21 years of age or older from Mexico come in at third place with just under a 20 year wait. Their cutoff date is October 1, 1992.
4. Married Children of U.S. Citizens from Mexico come in at fourth place with a 19 year wait. Their cutoff date is February 8, 1993.

The wait times calculated above are just estimates. The line does not necessarily advance a month with each monthly bulletin. This highlights how unpredictable and complicated our system is. If comprehensive immigration reform does come to fruition and some type of amnesty is granted, should illegal aliens be able to jump ahead of individuals who have been waiting to immigrate legally to the U.S. for years? If they are to go to the back of the line, which line should they go to the back of? If the wait is decades long is that workable?

In the coming weeks I plan on posting more details on how the Visa Bulletin works and how immigrants are categorized.

DREAM Act-lite and the Rule of Law

By: Danielle Huntley, Esq.  

The coverage of the Obama administration’s policy change towards so-called DREAMers, illegal aliens who were brought here as children, has garnered significant media coverage. Coverage here, here and here.

In my view, what has been missing from the discussion is how a change like this is emblematic of an inherent problem in our system. It continues a trend of the government creating immigration “law” through executive orders, policy memorandums and updates to various operational manuals; none of which are subject to meaningful legislative review or the regulation making process.

What are the limits of presidential power and prosecutorial discretion? On the one hand this program could be stopped at any time – it is wholly within the whim of the executive branch to maintain it. It creates no affirmative rights, only a process to ask the government to ask for its discretion. Conversely, if a DREAMer is under a final order of removal and they benefit from this program, how is that action different from a warden releasing a prisoner from prison after she has been found guilty by a court and sentenced?

This policy change is beneficial for this subset of illegal aliens, but it stands in stark contrast to the many policy changes that have created burdens where none is legislatively authorized.

ANNOUNCING: Three-Part Seminar: "Federal Court Litigation Against USCIS and Other Federal Agencies."

 

Lataif, LLC has been invited to conduct a three-part seminar series on Federal Court Litigation in Immigration cases starting in the fall and continuing until February of next year. Hosted by the Boston Bar Association, each presentation will be accompanied by a Power Point presentation and the floor will be open throughout for questions and answers.

Topics:

• Why, How and When businesses and individuals can sue when immigration benefits are wrongfully denied or unreasonably delayed
• What types of immigration decisions can prompt a federal lawsuit including erroneous petition denials, and illegal and improper CIS policies
• What claims can/should be brought: Declaratory Judgment, Injunctive Relief, Mandamus, APA violations, Constitutional violations: Due Process, Equal Protection, De Novo review
• Drafting considerations – including venue, exhaustion issues, complaint drafting issues and practice pointers
• Anticipating the defenses – ie: CIS has unlimited and unreviewable discretion, and federal courts have no jurisdiction.

Save the Dates!

Attendance is FREE for Boston Bar Association members and non-members. Seminars from 3:00-5:00PM at the Boston Bar Association at 16 Beacon Street, Boston, MA. Dates as follows:

SEMINAR PART ONE: “Suing in Federal Court for Immigration Denials and Delays: When Your Client Has No Choice but to Sue the Bureaucrats." Tuesday, October 18, 2011

SEMINAR PART TWO: “Pretrial Discovery.” Tuesday, November 15, 2011 (**POSTPONED EVENT -  NEW DATE TBA**)

SEMINAR PART THREE: “Mock Litigation.” Tuesday, February 21, 2012

The program will be included in a WestEd Legal Center live, online broadcast. Please visit here to register for the online broadcast. Online listening fee of $55 applies.

The event will be moderated by Ellen Kief of Law Office of Ellen S. Kief and handouts with exhibits and citations will be provided.

Speakers:

Lawrence P. Lataif, J.D., LLM – Larry has been practicing federal immigration law exclusively since he joined Jones Day in 1986 to organize and head its firm-wide immigration practice. Larry also headed the firm-wide immigration practice of McDermott, Will & Emery and has headed his own boutique immigration firm for over 15 years. Larry conceived of the Religious Worker law and headed the legal team that brought about its passage in 1990. Most recently, Larry’s extensive publications have continued in the Palm Beach Post and Miami Daily Business Review. In 2004, Larry was honored for his legal accomplishments as a recipient of the Ellis Island Medal of Honor. Larry has extensive federal court litigation experience, including federal immigration lawsuits against USCIS, the Department of Homeland Security (DHS), and the Department of Justice (DOJ) requesting declaratory judgments, APA review, mandamus, Constitutional and injunctive relief.

Danielle E. Huntley, JD – Danielle works with Larry on a broad range of immigration matters, including federal litigation. Danielle graduated cum laude from Boston College as a Scholar of the College in Philosophy. At Boston College Law School she was a quarter-finalist in the Grimes Moot Court Competition where she was recognized as a top ten oralist and brief writer. She was a member of the National Religious Freedom Moot Court Team and Co-Chaired the Grimes Moot Court competition the following year. In her third year, Danielle was chosen to spend an intensive full-year working in the Administrative Law Division of the Massachusetts Attorney General’s Office.