Legal Updates & Alerts

Diversity Lottery 2012 Opens; H-1B Cap Update

October 11, 2010

The U.S. Department of State opened entries for the Diversity Lottery 2012 (DV-2012) beginning October 5, 2010 at noon EDT, and ending November 3, 2010, at noon EDT. Please note that this is a shorter entry period than in previous years. All entries must be submitted via the Department of State's online system; paper submissions are no longer accepted. Only one entry may be submitted per person. Spouses may submit separate entries (if one spouse is selected, the other is entitled to derivative status).

Instructions and the full announcement are available at the Department of State website by clicking here.

The entry system is available by clicking here.

For FY2012, 50,000 diversity visas will be made available to individuals born in countries with low immigration rates to the United States (defined as less than 50,000 immigrants over the past five years).

Individuals who are natives of (in most cases, born in) the following countries are NOT eligible for DV-2012:

BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, 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.

There are two potential exceptions that should be assessed for individuals born in countries whose natives are ineligible for the DV-2012 lottery. First, an individual born in an ineligible country may still be able to apply if he or she has a spouse born in an eligible country. Second, if an individual's parents were neither born, nor resided, in the ineligible country at the time of birth, the individual may claim to be a native of a parent's birth country.

Individuals who are selected will be notified by mail beginning Spring 2011. Selection does not mean that an individual will become a permanent resident. An individual must meet all qualifications for permanent residence, and a visa number must be available to the applicant. Applications for permanent residence may be submitted beginning in fiscal year 2012 (beginning October 1, 2011). Applications may only be submitted when a visa number becomes available, as announced by the Department of State.

If an individual is pursuing other employment or family-based permanent residence in the United States, the individual is not precluded from filing under the DV-2012 program.

FY2011 H-1B Numbers Remain Available

The USCIS has confirmed that as of October 1, 2010, approximately 40,600 petitions had been receipted against the FY-2011 (beginning October 1, 2010) quota of 65,000 H-1B numbers. Approximately 14,900 H-1B petitions had been receipted against the additional quota of 20,000 H-1B numbers reserved for U.S. advanced degree holders (master's degree or higher).

The H-1B quota applies only to "new" H-1B petitions for individuals who have not previously been counted against the H-1B quota in the last six (6) years. Several exceptions apply.

Employers should assess their recruitment needs for the new fiscal year and consider whether an existing or prospective employee may require a new H-1B petition to be filed. While it is not possible to predict when the quota will be exhausted, it is best to file as soon as possible after a need is identified. Please contact our office is you have any questions regarding the H-1B program.

USCIS Filing Fees to Increase

Effective November 23, 2010, the USCIS will increase certain filing fees. For information regarding which application types will be impacted, click here.