Visa Myth #975 – “But They Gave Me 6 Months to Stay in the US!”

At least a couple of times a month I get a similar, frantic phone call. “I just applied for a new visa, but it was denied. The consul didn’t like the fact that I spent 5 months in the US on my last trip.  I told him that the airport inspector allowed me to stay for 6 months. I didn’t do anything wrong!”  Or “My visa has been revoked. But I didn’t do anything wrong.  When I arrived in the US, they gave me 6 months to stay, so I did. I didn’t violate any laws, so why are they revoking my visa?!?” The revocation is done by either the consul or the airport inspector the next time the visa holder arrives in the US.

There are many “red flags” here considered by the consul or airport inspector:

  1. The visa holder must remember that when he applies for a visa again, the consul might compare your answer on your previous application to what you actually did: Did you indicate that you planned to stay for 2 weeks, but stayed for 5 months?  If so, you have lost credibility with the consul, at the least.
  2. The visa holder must remember that US consulates conduct validation studies. These are  surveys on individuals who received visas: how many returned home on time, how many did not, how many changed status, etc…  When they conduct these surveys and discover individuals who do not return home on time, sometimes they will revoke his/her visa. An e-mail is sent  notifying the visa holder that the visa has been revoked because of “new information” that came to light after the issuance of the visa (the actual revocation only takes effect upon departure from the US).
  3. Most importantly, the visa holder must remember that it is necessary to maintain strong ties (employment, family, property, etc…) with the home country throughout the validity of the visa.  By spending 6 months in the US, the consul reaches the conclusion that your ties to home are not so strong anymore, that you have established ties to the US, and that it is necessary to re-establish ties to your home country.  So he denies a new visa for 2-3 years so that you can “re-establish” ties.
  4. One other conclusion that the consul or airport inspector may draw is that you are working illegally in the US. Their view is “How can you be supporting yourself for 6 months without steady income?”  The airport inspector may check your phone or suitcase for evidence of illegal employment. Needless to say, it can be a humiliating experience.

The consul will usually deny the new visa application under Section 214(b).  The airport inspector will usually revoke the visa under Section 212(a)(7)(A)(i)(I) for “improper documents”.  (The inspector may also write by hand on the revoked visa “22 CFR 41.122(e)”.) Whether the airport inspector will allow the visitor to withdraw his application for admission to the United States, decide to initiate expedited removal, and/or make a Section 212(a)(6)(C)(i) misrepresentation finding depends on the seriousness of the circumstances.

Finally, remember that in the US the average worker only receives 2-3 weeks of vacation time a year.  So the mindset of a consul or airport inspector is: who can afford to take a 6 month vacation in another country?  What the heck were you doing all of that time? What employer in the home country would allow an employee to be “absent” for 6 months?    Of course, this may not apply to a retired person or if an emergent situation arises.

If you would like to discuss your situation, please contact us.

Posted in 212(a)(6)(C), 212(a)(7)(A)(i)(I), 214(b), B Visa, Consular Officers, Visa Denial, Visa Refusal, Visa Revocation | Leave a comment

FAQ on New Public Charge Rules – Part 2: Trouble ahead for Older Immigrants, Diversity Lottery Winners, and Immigrants without Job Offers, English Skills, or University Education

On February 22, we published Part 1 of this FAQ. Since then, the Department of State, including all embassies and consular posts outside the United States, implemented the new rules.

What practical changes have gone into effect?

It is still too early to know exactly what each embassy and consulate will require from immigrant visa applicants.  However, in the few weeks since the rules went into effect, it appears that embassies and consulates processing immigrant visas are requiring 1) the completion and submission of the Form DS-5540 and 2) asset and income documents confirming the information in the Form.   The new Form DS-5540 asks about the immigrant visa applicant’s 1) age: 2) health; 3) household size; 4) assets; 5) current and future income; 6) liabilities; 7) past usage of public benefits in the US, if any; 8) education; and 9) trade/vocational skills. Documents confirming assets, such as real estate appraisals and bank statements covering up to 12 months, are being required in some cases.

What specifically will be considered?

There is no scientific formula used by consular officers to determine whether someone will become a public charge. Rather, they use what is called a “totality of circumstances” test, weighing positive and negative factors to make a final determination. Obviously, this is all very subjective. Applicants with similar qualifications may end up with different results: one consul may find one applicant to be a public charge, another consul may issue the visa. The factors considered are as follows:

  1. Age – if the applicant for an immigrant visa is under the age of 18 or over the age of 61, this will be considered a negative factor because of their inability to work or difficulties in finding a job.
  2. Health – if the applicant is likely to require extensive medical care or care that will interfere with the applicant’s ability to work or study after admission to the United States, this will also be considered a negative factor. On the other hand, if one is able to secure health insurance or has the financial ability to cover medical expenses, then this will be considered as a positive.
  3. Family Size – if the applicant has a large family applying for immigrant visas, this will be considered a negative factor. A small family will be considered a positive factor.
  4. Assets/Income/Liabilities – the question is tied to the official poverty levels in the United States. For a family of 4, the minimum income level in the US is $32,750 or assets valued at least $163,750.  If the applicant’s income is minimal and there is no job offer in the US, this will be considered a negative factor. If the applicant has current income or a job offer in the US at 2 ½ times the minimum income level, or substantial, liquid, transferable assets, this will be considered a positive factor.  Immigrants moving to the United States based on an employment-based category, approved petition, and a job offer will also have an easier time meeting their burden.  EB-5 investors should also not have a problem here.
  5. Education and Skills – there are various considerations here, including education level, employment history, knowledge of English, and vocational skills.  If the applicant is considered to be a person who may have a hard time finding work in the US, this will be a negative factor. In contrast, a person with a university education, strong employment history, and knowledge of English will be viewed positively.

What about Nonimmigrants?

Individuals applying for nonimmigrant visas to visit or study in the US must also satisfy the consular officer that he or she will not become a public charge.  A consul could also ask for the completion of Form DS-5540 and supporting documentation.  However, in cases in which the consul may suspect that the nonimmigrant visa applicant will become a public charge, the consul will most likely deny these individuals under Section 214(b).  If the applicant is seeking medical treatment in the US, then asset and sponsor information will be considered.

Are there any waivers available?

Unlike those with a criminal history or those that have serious immigration violations (misrepresentations, alien smuggling, unlawful presence), there are no waivers available for immigrant visa applicants who have been denied as a likely public charge.  In theory, there is a nonimmigrant waiver available for nonimmigrant visa applicants, but because these applicants will be denied under 214(b), the consul will not reach the question of a nonimmigrant waiver.

The rules are complex and very subjective.  So what is the bottom line?

The bottom line is that before starting the immigration process, one should make an assessment of whether this could become a problem. Once the immigrant petition is filed, an intent to immigrate has been expressed and it may be difficult to receive any new visitor visas as a result.  It is always better to consult with a lawyer before a problem arises: to objectively evaluate, plan and strategize going forward. At the end of the process, will the applicant receive the visa or be considered a public charge? Who is the consul at the Embassy who will be making the final decision? How strict or liberal is the consul in interpreting the very subjective public charge rules?  If one decides to proceed, what steps can be taken during the immigration process to make the immigrant visa applicant more adaptable, more employable, more skilled for his/her future life in the US? Attending English courses or computer classes? Working for a Western company? Arranging a job offer in the US? Sending out resumes to potential employers? What other obstacles may there be?  What if the immigrant visa applicant is already retired?

Please feel free to contact us to discuss your situation.

Posted in 212(a)(4), B Visa, Consular Officers, Family Immigration, Public Charge, Visa Refusal | Leave a comment

Diversity Lottery Refusals

We have just posted an in-depth article on this site about the various types of Diversity Lottery refusals – and how to prevent or challenge them.  At least 30,000 individuals go through Diversity Visa interviews every year – and don’t receive the visas.  Putting aside the approximately $10,000,000 in processing fees pocketed by the Department of State from unsuccessful applicants every year and millions more spent by these applicants in medical exams, travel, etc…, the article spotlights the veritable minefield of potential reasons for refusal.  One would think that the Lottery aspect of the Diversity Visa Program only applies to the selection – competing to be one of the less than 1% selected. But what many winners find is that even after selection the “Lottery” elements of luck and chance continue right up until September 30: until the visa is issued or denied or the application is not acted upon before the deadline. An applicant’s $20 bill was not accepted by a cashier because it had a mark on it, and he lost his chance for his interview as a result.   Nearly two years after the entry and photo were submitted, a consul thought an applicant’s photo was not “recent” at the time it was submitted, and he was denied. A consul believed that an applicant was married, but she was not, and she was refused.  Two applicants processed at the same Embassy with the exact same spelling alleged “defect” in their entries ended up with two different results: one received his visa, the other did not.  The list goes on and on and on… as does the Lottery.

Posted in Consular Officers, Department of State, Diversity Visa Lottery, DV Lottery, Green Card Lottery, Visa Refusal | Leave a comment

Department of State Announcement on the Suspension of Routine Visa Services

Suspension of Routine Visa Services

Last Updated: March 20, 2020

 

  • In response to significant worldwide challenges related to the COVID-19 pandemic, the Department of State is temporarily suspending routine visa services at all U.S. Embassies and Consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments as of March 20, 2020. As resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. Our overseas missions will resume routine visa services as soon as possible but are unable to provide a specific date at this time.
  • Services to U.S. citizens continue to be available. More information is available on each Embassy’s website.
  • This does not affect the Visa Waiver Program. See https://esta.cbp.dhs.gov/faq?focusedTopic=Schengen%20Travel%20Proclamation for more information.
  • Although all routine immigrant and nonimmigrant visa appointments are cancelled, the Machine Readable Visa (MRV) fee is valid and may be used for a visa appointment in the country where it was purchased within one year of the date of payment.
  • Applicants with an urgent matter and need to travel immediately should follow the guidance provided at the Embassy’s website to request an emergency appointment.
Posted in Consular Officers, Coronavirus, Department of State | Leave a comment

221(g): Visa Application Status Check Leads to Refusal Shock

Visa applicants whose applications were pending under Section 221(g) received a shock yesterday morning when they went to check the status of their cases on the Department of State’s website.  Suddenly, the status of their cases changed to “Refused” from “Administrative Processing”.  Imagine the trauma inflicted on applicants who have been waiting months or even years to see that suddenly, their applications had been refused: their chance to immigrate, visit, study, or work in the US was denied.

Only after reading the remaining text on the Status page does it become clear that the applications were not definitively denied, that they remain under adjudication, i.e, no final decision has been made. The small explanatory note under the bold heading of Refused states:

If you were informed by the consular officer that your case was refused for administrative processing, your case will remain refused while undergoing such processing. You will receive another adjudication once such processing is complete.    

Another indicator that the 221(g) status remains unchanged is the “Case Last Updated” line.  This line reflects the date of the substantive last action on the case, i.e., it does not reflect yesterday’s date, but the date on which the last actual action was taken on the application.

While legally speaking, a 221(g) decision is a refusal, the sudden change in nomenclature impacted thousands of pending applications. Most frustrating is that the Department of State did not make any corresponding announcement; it failed to notify the public in advance of its intention to change the Status terminology.  In failing to do so, the Department needlessly sent into a state of panic many of these individuals.  The Department could have easily distinguished on the case status page between a final decision and a decision pending under 221(g) by indicating, for example, Refusal 221(g), instead of just Refusal. But it did not.

One can certainly question the Department’s motives for making this change. For example, as more and more visa applicants explore the possibility of visa mandamus litigation against the Department of State for long-pending visa applications, the Department of State can now tell the judge: “We did make a decision on the visa application. It was refused.”  Of course, any rationale judge will understand that the application remains under review for final decision, and will not excuse the Department of State for its laxity in delaying a final decision.

If your visa application has been pending for at least 12 months, please contact us. We are one of the few firms with experience in suing the Department of State. Let us put our experience to work for you.

Posted in 221(g), Department of State, Visa Denial, Visa Refusal, writ of mandamus | Leave a comment

FAQ on New Public Charge Rules – Part 1: Trouble ahead for Older Immigrants, Diversity Lottery Winners, and Immigrants without Job Offers, English Skills, or University Education

What are the new Public Charge Rules?

Section 212(a)(4) of the Immigration and Nationality Act makes inadmissible immigrants who are “likely at any time to become a public charge”.  Practically speaking, in the past, if the sponsor in the United States had sufficient income (more than the poverty level) or assets, then the immigrant successfully received the visa or adjusted status. Now, the focus will be on the immigrant him or herself.

The examiner will consider the personal circumstances of the immigrant: is it likely that he or she will become a public charge at any time in the future?  The circumstances to be reviewed include age, health, family size, financial resources, education and skills, and sponsor.  In short, this rule will adversely impact the elderly or soon-to-be-retired; those with medical conditions; the less educated; those with large families; those with few job prospects in the United States; those who do not speak English; and those with few financial resources.  Having a joint sponsor will also have little positive impact unless there is a close family relationship with the applicant.

To Whom Do the New Rules Apply?

They will apply to those applying for immigrant visas and adjusting status to immigrants in the United States.  They will also apply to nonimmigrants in the United States who are extending their current status (e.g., B visitor) and those changing status (e.g., B visitor to student).  The analysis will be different for these two classes: for immigrants, the public charge analysis will be prospective (future), whereas for nonimmigrants it will be retrospective. For nonimmigrants changing or extending status, the public charge rules will be extremely limited, only applying to those who received public benefits in the past for at least 12 months out of 36 months.  Form I-944 will need to be appended to their applications.  For immigrants, the question will be whether it is likely that in the future the immigrant will receive public benefits for 12 months out of a 36 month period.

Who is Exempted?

Refugees, aslyees, VAWA applicants, and other special categories are exempted from these new rules. The rules also do not apply to lawful permanent residents applying for US citizenship (unless had been absent from the US for more than 180 days) or renewing their expired green cards.

What does Public Charge mean?

The term public charge is specifically tied to “public benefits”.  Public benefits include food stamps, housing support (Section 8), Supplemental Security Income, some other assistance programs, and some Medicaid beneficiaries. The following are not considered “public benefits”: emergency Medicaid, benefits received by pregnant women, benefits received by those under 21, student loans and Pell Grants, worker’s compensation, unemployment benefits, Social Security, Medicare, WIC (nutrition program for women, infants, and children), child healthcare, and benefits received by immigrant’s family members already in the US.

What else is considered?

If the sponsor in the US has income at 250% of the poverty guideline, then this should shift the focus away from the applicant and satisfy the examiner.  For example, if the minimum poverty guideline calls for at least $30,000 in income, if the sponsor’s annual income exceeds $75,000, this should meet the burden, unless the applicant has very severe medical conditions.  In addition, if a decision is made that the applicant is inadmissible on public charge grounds, the examiner can offer the applicant the ability to put up a bond (minimum $8,100) as a guarantee, although it is expected that in visa cases this will be very rarely used.

What types of immigrants will be most affected?

Undoubtedly, older parents and siblings of US citizens will be severely impacted.  Spouses of US permanent residents with limited education, English knowledge skills, and employment skills will also be targeted.  Diversity Lottery winners without a university education and with limited English and employment skills are also likely to be adversely affected.

The stakes are high.  For example, once an immigration petition is filed, it becomes harder to obtain a visitor visa.  A failed immigrant visa case will most likely lead to the cancellation of an existing B visa and difficulty in obtaining such a visa in the future.  Because of the high stakes involved, it makes sense to start planning for this public charge question at the start of the immigration process, not the end.   Please contact us to discuss.

Posted in 212(a)(4), 214(b), Extension of Status, Family Immigration, Green Card Lottery, Immigrant Visa, Naturalization, Public Benefits, Public Charge, Spousal Visa, Visa Refusal | Leave a comment

E-2 Visa Denials

One usually does not associate the US Government Accountability Office with “interesting” reports, but last year’s report on E-2 visas was eye-opening.  Of particular note are the reasons why E-2 applicants are denied.  While the report is limited to examining certain countries, it provides critical insight into the thinking of consular officers and obstacles to obtaining E-2 visas.

As a reminder E-2 visas are limited to nationals of countries with whom the United States has commerce and navigation treaties. The full list of countries can be found on the Department of State’s website, with 80% of all E-2 applicants originating from 9 countries: Japan, Germany, UK, France, Canada, Mexico, South Korea, Italy, and Spain. The majority of E-2 visa applicants are related to large investments (>$10 million) – think of managers and essential employees going from Japan to work in a large car plant in the United States.  However, the majority of the actual E-2 businesses in the United States have low investments: 66% of them involved an investment of $200,000 or less (29% for less than $100,000).   These businesses run the gamut, from restaurants to various kinds of franchises, from consulting firms to print shops.  This relatively small investment amount makes the E-2 visa accessible to many, sharply contrasting with EB-5, which now requires a minimum of $900,000 investment.

But smaller investments provoke stricter scrutiny by consular officers. From 2014 to 2018, about 24% of E-2 investors were denied.   While there is no breakdown provided, the percentage of small investment E-2 applicants refused is most certainly significantly higher. The most common reasons for E-2 investor visa denials relate to 1) lack of evidence that the funds are “clean”, i.e., were not obtained through criminal activity; 2) doubts about whether the business in the United States is real, operating, and will be an active commercial enterprise; 3) suspicions about whether the funds have been irrevocably committed to the business; 4) the investment amount is small and a perceived marginality of a business; 5) a lack of investor qualifications to run the business; and 6) consular suspicion of violation of status.

The last three are particularly noteworthy.  If a housewife becomes the E-2 investor, there are going to be questions and concerns about whether she is able to run the business, that perhaps the E-2 is being used merely to relocate to the US. If in the course of setting up the business in the US,  the investor spends substantial time in the US in B status even after the business is up and running, the consul may view him as having worked unlawfully or violating the 90 day rule.  To meet the marginality requirement, it is necessary to show that the business will generate more than enough income to provide a minimal living for the family or will have the future capacity (within 5 years) to make a significant economic contribution.

If an investor fails to satisfy the consular officer on any of the above issues, the consular officer may invoke 214(b) to deny the visa.  In cases of fraud (e.g., a fake lease agreement for the US business) or a material misrepresentation (including a violation of the 90 day rule), the consul may invoke Section 212(a)(6)(C)(i) and a lifetime ban from the US.

It was famously said that “by failing to prepare, you are preparing to fail.” As always, it is best to consult with a lawyer prior to starting the E-2 process.

Posted in 212(a)(6)(C), 214(b), 90 Day Rule, Business Immigration, Consular Officers, E-2, Misrepresentation, Visa Denial, Visa Refusal, Visa Refusal Rates | Leave a comment

No Statute of Limitations in Visa Law – A Distressing New Phenomenon with Tragic Consequences

Statutes of limitation apply in criminal law. They were put into place to prevent the prosecution of an alleged wrongdoing after a certain number of years has gone by (usually 5-7 years). There are many reasons for this: evidence goes stale; witnesses are unavailable; memories fade; to allow for certainty and repose of the parties; and to prevent inconsistent decisions.  But there is no statute of limitations in visa/immigration law.

With some exceptions, until recently, this has not been a significant problem.  But along with the anti-immigrant politics of the Trump Administration has come a new visa phenomenon: consular officers are now using the lack of a statute of limitations to “exhume” perceived past visa transgressions.  They are re-opening and reconsidering suspected visa violations – with no limitation of time or past consular “exoneration”.  Consular officers are now revisiting such transgressions from 5, 10, or even 15 years ago – and denying or permanently barring visa applicants as a result.  This, regardless of whether the person has been receiving visas or not after the alleged violation or suspicion of such a violation.

Take the case of Nikolai.  In 2004, Nikolai received a visa and traveled to the US.  He had originally planned to attend a few car auctions, buy some cars, and return home within a month.  But after a problem with a business partner in the US, he had to find a lawyer to initiate a lawsuit and find a new partner. Instead of staying in the US a month as he planned, he ended up spending 5 months.   A couple of years later, when he applied for a new visa, he was asked questions about why he had stayed for so long.  He answered the questions and provided documents to the consular officer to show what happened with his previous business partner.  After a 5 minute interview, he was granted a new visa.  He used the visa a couple of times – always returning to his home country after short visits to the US.

Fast forward to 2019.  Nikolai had not visited the US for more than 5 years. He settled down, got married, had a couple of kids, and continued to operate his small car dealership.  Deciding to reinitiate his business contacts with the United States, he applied for a new visa.  To his shock, he was asked again about why he had spent so much time in the US in 2004.  When he explained about the fallout with his partner, the lawsuit, and establishing a new business relationship, he was denied under Section 214(b).

Nikolai is not the only unlucky one.  We have consulted with individuals who were recently permanently barred under Section 212(a)(6)(C)(i) for supposed misrepresentations made back in 2010 and 2012. In the first case, the woman received several visas after 2010.  In subsequent visa interviews, she addressed the issue of having a baby in the US and paying the hospital bills. Without a problem, she received visas. 9 years later, the Embassy ignored those visa issuance decisions and accused her of lying in 2010.

These “out-of-the-blue” decisions years later are becoming more and more frequent. This means that the visa applicant should always be prepared for the possibility that questions will be raised about how a visa was used in the past.  Was there illegal employment? Was there a misrepresentation at the time of the visa application?  Were public benefits used?  The stakes for many are high: immigrating to join an American spouse, reunifying with children, lucrative employment in the United States.

In the immortal words of Bob Dylan, the times they are a-changin’. But unfortunately for visa applicants, not for the better. Don’t underestimate consular zeal.  Contact us to discuss your situation.

Posted in 212(a)(6)(C), 214(b), Consular Officers, Department of State, Misrepresentation, Statute of Limitations, Visa Denial, Visa Refusal, Visa statute of limitations | Leave a comment

FAQ on New Birth Tourism Rules

The Trump Administration announced new rules regarding birth tourism, which took effect on January 24, 2020.  Already, misinformation has cropped up. So to provide some clarity, the below FAQ is provided:

Whom do the new rules affect?

They only affect applicants for B visitor visas; they do not impact current holders of visas nor citizens of  Visa Waiver Program countries who can enter the US without a visa.

May current holders of visas and those who hold passports from Visa Waiver Program countries enter the United States to give birth?

The Department of Homeland Security, which include Customs and Border Protection inspectors at ports-of-entry, has not announced any new policies or reinterpretations of allowing entry for those who enter to give birth.  In the past inspectors permitted women to enter the US to give birth as long as they could show the ability to cover the cost of birth.  However, one can anticipate that DHS will announce new rules soon making it more difficult for “birth tourists”.  If new DHS rules are not forthcoming, one can foresee inspectors becoming more strict in allowing visitors to enter the US for the explicit purpose of giving birth.  In any event, birth tourists are well-advised to be honest in their dealings with CBP: even if they are successful in entering the US, at some point in the future, they could be held accountable for any misrepresentations, i.e. their visa could be revoked and a consular officer or CBP inspector could find them inadmissible permanently for lying to a CBP inspector.

Why did the Department of State change its rules?

The Department of State cites to potential security threats in the future, that unfriendly countries could “activate” such US born citizens at some point and use them against the US.  Because such individuals are not screened nor obliged to spend any time in the US, as those who apply for US citizenship through the naturalization process are, DOS believes that this could lead to a backdoor threat from those who have no loyalties to the United States. The Department of State also justified the need for these new rules to counteract scammers and fraud in the visa process, as well as to address the problem of foreign nationals not paying hospital bills, leaving US taxpayers to foot the bills.

Which visa applicants will these new rules apply to?

They only apply to those whose primary purpose for making the visa application is to give birth in the United States. If the consular officer has reason to believe that the visa applicant will give birth during her visit to the United States, then the consular officer will assume that the primary purpose of the visa is to obtain US citizenship for the child.  It is then up to the applicant to overcome this assumption.

The rules do not apply in four specific situations.  Firstly, if the applicant has a different primary purpose – e.g., visit a sick relative or a business conference – then the visa should be issued.  According to the Department of State, “An applicant who is pregnant, who has no desire or no plan to give birth in the United States, would certainly be issued a visa for whatever their other primary purpose of travel is.” In addition, if the applicant’s primary purpose is “medical” – e.g., she may endure complications in the delivery process – then that may allow for issuance of the visa if 1) there is a doctor/hospital letter agreeing to provide for treatment and 2) the visa applicant has the money to cover the expenses.  Thirdly, if a female applicant applies for a visa, is not pregnant, receives the visa, and later becomes pregnant, the new rules do not apply to her.  It is the current intent of the visa applicant that is examined at the time of the visa application. Finally, these new rules do not apply to those applying for student or employment visas: either as the principal applicant or accompanying spouse.

When will the consular officer have reason to believe that the applicant will give birth in the US?

A “reason to believe” means not just being suspicious. There has to be some evidence.  According to the new rules, a consular officer “must not ask a visa applicant whether they are pregnant unless” there is a “specific articulable reason to believe they may be pregnant and planning to give birth in the United States.”  The consular officer is prohibited from asking “all female applicants (or any specific sub-sets of applicants) whether they are pregnant or intend to become pregnant.”  Similarly, the consular officer cannot require women to take a pregnancy test, i.e, “provide evidence that they are not pregnant.”  However, if a woman “looks pregnant” or indicates that she is traveling to the US for medical purposes in her DS-160 form, this may open up questioning by the consular officer.

Posted in 212(a)(6)(C), B Visa, birth tourism, F-1 Visa, Misrepresentation, Public Charge, Revocation, Visa Denial, Visa Refusal, Visa Revocation, Visa Waiver Program (VWP) | Leave a comment

A Green Card Holder and Absent from the US for more than 180 days? Beware.

One of the biggest misconceptions about immigration law is that a green card is the same as citizenship  –only without a passport or the ability to vote. But what many permanent residents do not realize is that they can be deported.  The reasons are many: not only for a conviction of a serious or drug-related crime, but also for abandoning their residency in the United States or becoming a “public charge”.  The question of deportability can come up when applying for naturalization, or after an absence of more than 180 days from the United States.

Imagine a situation where a green card holder who uses public benefits in the US  leaves to visit his home country.  During his visit, his father gets sick and he needs to stay to help take care of his father.   After a 7 month absence from the US, he returns.  Upon his arrival at the airport, the inspector will consider him as a permanent resident. However, because of the absence of more than 180 days, the permanent resident is subject to most of the same general admissibility criteria as a tourist. The admissibility criteria are all-encompassing, including criminal, security, health, and financial issues – Sections 212(a)(2), 212(a)(3), 212(a)(1), and 212(a)(4) of the Immigration and Nationality Act, respectively.  If the airport inspector learns that the permanent resident has used public benefits in the United States, then the inspector can find him inadmissible under Section 212(a)(4) and place him in deportation proceedings.

Or imagine that the airport inspector admits the green card holder back into the United States. Several years later, the green card holder applies to naturalize.  The naturalization examiner has the right to review the admissibility of the green card holder at the time of his arrival back to the US after a 180 day absence, including whether he used public benefits in the United States before his departure.  In other words, not only can the examiner deny the naturalization application, the examiner can also seek to take away his green card and refer him for deportation.

While in either scenario the green card holder has the ability to present his case before an immigration judge who will make the final decision, no one wants to have his or her fate hang by a thread.  No one wants to worry about the possibility of being sent back to his/her home country, one that perhaps he/she immigrated from 5, 10, 20, or more years ago.  While sometimes delays abroad during a visit are unavoidable, and it may become necessary to apply for a special permission to return to the US if the absence is for more than one year (called a returning resident SB-1 visa), one must consider the potential consequences. This is becoming all the more acute with the Trump Administration’s laser-like focus on those who use public benefits – for new immigrants as well as current green card holders.

To consult about your situation, please contact us.

Posted in 212(a)(4), Abandonment of Green Card, Citizenship, Green Card Abandonment, Immigration Judge, Naturalization, Permanent Resident, Public Charge, Returning Resident Visa, SB-1 Visa | Leave a comment