New Department of State Rules Channel Trump: The 90 Day Rule and Hire American

US embassies and consulates abroad adjudicate more than 13 million visa applications a year, so when changes are made to the rules governing visa decisionmaking, the potential impact can be enormous. That is the case with two recent changes in the Foreign Affairs Manual, the State Department’s guidance to consular officers making visa decisions.  The revisions, unfortunately, are not for the better for visa applicants.

90 Day Rule

The most important change – with the most severe potential consequences – relates to the pronouncement of a new 90 day rule.  This rule supplants the previous 30/60 day guidance. The 90 day rule states that “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry,” the consul may presume that the “applicant’s representation about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.” The FAM goes on to specify the four triggering events for the application of this presumption: 1) engaging in unauthorized employment; 2) enrolling in a course of academic study not permitted by the current status; 3) marrying a US citizen or legal permanent resident and taking up residence in the US while holding a B, F or other visa type which prohibits immigrant intent; and 4) engaging in any other impermissible activity without undertaking a corresponding change or adjustment of status.

It is obvious that this new rule is a byproduct of the anti-immigrant and pro-enforcement undercurrents sweeping Washington.  The Department of State is fighting back against perceived abusers of the visa system. But there is hope: the “rule” is only a presumption – it is not airtight and its application by a consul to an individual applicant must be cleared with the Visa Office. Further, because the presumption is not ironclad, it can certainly be challenged by applicants. For example, it is not clear whether: 1) it will also be applied by USCIS; 2) it may be applied in the absence of proof of an actual willful, material misrepresentation made to a US government official; 3) its potential application will be more likely to be forgiven in the context of an adjustment of status application of an immediate relative of a US citizen; and 4) courts will defer to this rule.

Of course, those in the United States will be – and should be – reluctant to leave the US to test the 90 day rule at a consulate. In fact, instead of encouraging many people to return to their home countries and maintain their ties – the prerequisite for the issuance of a B or F visa – the Department of State may end up achieving the opposite: compelling individuals to stay in the US until they become permanent residents or do not need a visa for re-entry (e.g., receive advance parole).  Whereas before many of these returnees to their home countries only risked a 214b refusal, now they may be subjected to a 6C misrepresentation decision – with a lifetime ban from the United States.

Hire American

A second change relates to the context in which a consular officer will review certain employment visa applications.  With the Trump Administration’s emphasis on hiring Americans and its issuance of a corresponding executive order in April, the State Department revised the Foreign Affairs Manual to reflect this emphasis.  Specifically, when reviewing H, L, O and P visa applications, consular officers are now instructed to consider the impact on US jobs:

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788, intended to create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that [H, L, O, and P visa] cases must be adjudicated.

Already, some “patriotic” consuls have seen fit to treat such visa applicants with added rigor and skepticism. However, such autarkic zeal should remain subservient to the law and USCIS’ preeminent position in the H, L, O, and P petition-based landscape, i.e., USCIS petition approval is prima facie evidence of qualification and a consul may only recommend an approval for revocation in the case of fraud or the discovery of new, material evidence.

For E visa applicants, on the other hand, there is no such hierarchical order or buffer in place because there is no underlying approved petition to defer to; it is the Department of State with jurisdictional preeminence. Thus, E applicants are particularly vulnerable to the temperament of the consular officer in this politically turbulent environment.  In any event, the unintended impact of these “US worker first” provisions will almost certainly be adverse.  By denying employment visas to certain foreign individuals, Americans will lose resultant direct and indirect jobs that would have been created had the visas been issued.

Conclusion

As one can see, visa applications at US embassies and consulates outside the United States are becoming more and more fraught with potential problems.  One should tread lightly in this legal minefield – and consider obtaining legal assistance before making an application or considering a return to the home country.  Please feel free to contact us to discuss your situation.

 

Posted in 212(a)(6)(C), 214(b), Change of Status, Department of State, Foreign Affairs Manual, L-1 Visa, Misrepresentation, Student Visa, Visa Denial, Visa Fraud, Visa Refusal | Leave a comment

Expedited Removal – A One Way Ticket Back Home

As immigration enforcement ramps up, with more scrutiny and rigor exhibited by the government agencies involved (ICE, USCIS, DOS), one should not forget the role played by Customs and Border Patrol. Because they may have a visa, people tend to forget or underestimate the role played by the airport inspectors.  Those arriving at an airport are considered “applicants” for entry, and they are only admitted after the CBP inspector makes a decision on admissibility.

Just like the other agencies, CBP has also heard the call for more vigorous enforcement of our laws, and is now actively engaged in screening out “undesirables” and visa violators.   Now that the government is much more interconnected than it was even 3-5 years ago, this means that the CBP inspector has access to information contained in visa applications and petitions.

Another section of our website discusses in more detail the process of expedited removal, but in just the past couple of weeks alone we have been contacted by numerous individuals who have been expeditiously removed and are now subject to the 5 year ban.  One concerned a woman who was engaged in unauthorized unemployment in the US. CBP reviewed the text messages on her telephone and came to the conclusion that she was working without permission in the US.  Another related to a gentleman who had a facially valid H-1B visa, but planned to work for a different employer than the one listed in his visa.  CBP found a job offer letter in his suitcase from the new employer, and made an expedited removal decision and a finding of a willful, material misrepresentation.  While an expedited removal decision means a bar for five years, the willful, material misrepresentation finding is a permanent bar.  In one extreme case, CBP allowed an applicant for admission to withdraw his application and return home, but upon applying for a visa subsequently, the consular officer found that he had made a misrepresentation to CBP, notwithstanding the fact that CBP did not make such a finding!

As you can see, the consequences of an expedited removal and/or misrepresentation decision can be very serious. These legal consequences are in addition to the practical effect – being stuck in an airport for hours and hours, often in very uncomfortable conditions, and eventually sent back home on a long flight.

Sometimes preventive action – such as an explanatory letter to CBP from the inviting party in the US – can head off any misunderstandings. If a decision was made in error, one should consider a challenge to the decision. In extreme situations of abuse by CBP, a lawsuit for damages may even be appropriate. If the decision was correct and substantiated, then a waiver may be the proper course to take. Perhaps the basis for the decision is not clear because CBP did not give the applicant for admission a copy of the Record of Proceedings protocol from the airport, although it is supposed to.

In any of these situations, one should consider contacting qualified legal counsel. Feel free to contact us to discuss your legal options.

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Consular Refusals and Lawyers Who Do Not Provide Legal Support for Visa Interviews

As is well-known, most employment and family cases involve a two-step process: 1) the submission of a petition to USCIS for approval; and 2) the completion of a visa interview at a US consulate or embassy outside the United States.  So why is it that many lawyers do not provide legal support for the visa interview?

This issue has become more acute as consular officers have become more aggressive in questioning the bona fides of the underlying petition.  While they are not supposed to readjudicate the approval – substitute their opinion for USCIS’ – they can find “new, material” information to justify the referral of the petition back to USCIS for revocation.  This aggressive questioning has become more pronounced since the issuance of the President’s Executive Order to protect US workers. In light of the executive order, the Department of State updated its guidance to consular officers in adjudicating nonimmigrant employment petitions. Specifically, DOS has instructed consuls to be mindful of protecting US workers and the possibility of fraud and abuse when adjudicating petitions.  Already, we have heard of  “patriotic” consuls referring petitions for revocations after telling visa applicants that their US employers should be hiring Americans.

Another trend is the revisiting of previous visa applications: were misrepresentations made about the purpose of the visit? Did the applicant say they were going to Disneyland, and then 2 weeks after arrival arrange for a job in the US? And now is applying for the employment visa?  The red light may not only flash for the consul, but should flash for the lawyer as well.  The potential consequences – a permanent bar from the United States – should dispel any inertia or passivity in approaching the visa process.

So why is it that many immigration lawyers explicitly stipulate in their agreements that they will not represent the applicant at the visa stage, or assume that the visa will be issued?  Visa applicants from all over the world approach us after refusal at the consulate, advising that their lawyer “disappeared” after the USCIS approval, did not help them prepare for their visa interview, or just told them to look at the website of the consulate and go for their “visa stamp”. These phone calls to our firm have become more frequent over the past few months as the interviews have become more akin to interrogations and investigations.

Bottom line: do not assume that just because USCIS approved your petition that you are entitled to or will receive the visa. If your lawyer has “abandoned” you or taken a DIY approach, then contact us.  The visa process should be taken seriously. Not to do so can have tragic, irreparable consequences.

 

Posted in 212(a)(6)(C), Misrepresentation, Petition Revocation, USCIS | Leave a comment

Myth #4 – Having a real relationship with a US citizen means you will get a fiancée or spousal immigrant visa

From India to Saudi Arabia to Armenia to the Philippines to Vietnam, the US Government is cracking down on bogus relationships – and real ones too. The events in San Bernardino a couple of years ago – when a woman who came to the US on a fiancée visa and her US citizen husband killed 14 people – triggered a government crackdown and more rigorous scrutiny of fiancée and spousal visas.  Unfortunately, we are seeing how many legitimate visa applicants are being victimized – and ending up in Visa Hell as a result.

Consular officers have a difficult job – trying to distinguish between a real relationship and a sham one. The visa applicant is asked a lot of questions at the interview about the US citizen petitioner, his family, employment, and meetings. Where does he live? Where do his parents live? How many people attended your wedding? When was the last time you saw each other?  Who attended the wedding? What is his job? How many times did you meet before the wedding? How many brothers and sisters does he have? What rituals did you do at the ceremony? Was he previously married? Where was the reception? Did he file a fiancée petition for a woman before you? Do you have any relatives in the US? The list goes on… One or two wrong or inconsistent or suspicious answers can lead to a visa denial and allegations of fraud, which carry a lifetime bar from the United States.

In reviewing spousal and fiancée petitions, USCIS has a list of indices of a sham marriage or bogus relationship. Consular officers consider similar factors, such as a) large disparity of age; b) inability of petitioner and beneficiary to speak each other’s language; c) vast difference in cultural and ethnic backgrounds; d) family and/or friends unaware of the marriage; e)  marriage arranged by a third party; f) discrepancies in answers to questions of which a husband and wife should have common knowledge;  g)  beneficiary is a friend of the family; and h) petitioner has filed previous petitions on behalf of prior foreign fiancées or spouses.  The factor du jour seems to be the size of the wedding: a small, simple wedding – regardless of the reason – equates to a visa denial, particularly in countries where largescale weddings are the norm.

Another problem encountered by some is the case of the “benevolent” consular officer.  Most consular officers are honest, intelligent professionals, but from time to time a US citizen petitioner may encounter an overzealous officer with good intentions.  The benevolent officer “knows” the beneficiary and her intentions better after a 5 minute interview than the US citizen does after an 18 month relationship.  He “knows” that she is up to no good, is really deceiving the US citizen just to get a green card.  He knows the language and local culture, so in his opinion, he is better positioned to judge the sincerity of the relationship than the US citizen.  He accuses the beneficiary of fraud – without regard to the US citizen. His opinion overrides the US citizen petitioner’s.

One lesson that should be drawn is that the relationship needs to be documented as well as possible from the beginning in order to minimize suspicions or questions about the legitimacy of the relationship.  The typical petition should contain dozens of photographs, e-mails, text messages, wedding reception receipts, plane tickets, passport stamps, flower receipts, postcards, and social media posts.  Tying it together should be a detailed explanation from the US citizen petitioner about the relationship. If any of the above suspicious factors are present (such as a small wedding or large age difference), it should be addressed in the explanation.  Of course, if the pair have any joint children, property, accounts, and insurance, that documentation should also be included.

Another lesson to be learned is that US citizens have rights – rights to proactively challenge the decision of the consular officer or USCIS.  A US citizen should not be idle or passive when dealing with the US immigration bureaucracy.  Only by asserting those rights can you hope to be reunified with your loved one in the United States. Contact us if you are encountering problems or delays with your case.

Posted in Fiancee Visa, K-1 visa, Revocation, Sham Marriage, Spousal Visa, US Embassy Delhi, US Embassy Manila, US Embassy Vietnam, US Embassy Yerevan, Visa Fraud | Leave a comment

Parole – The “Hail Mary” Option

The granting of parole was recently in the news. As discussed elsewhere on this site, parole is the “last chance” after other visa options have been exhausted.  A sympathetic case was the recent approval for a team of girls from Afghanistan to participate in a robotics competition in the United States.  Their B visa applications had been denied twice by the US Embassy in Kabul.  An outcry ensued, with the President apparently intervening.  DHS then issued the special parole permission for all of the girls and their coach to enter the US to compete. More details can be found in this Washington Post story.

A stranger situation revolves around the case of the Russian lawyer caught up in the election collusion scandal.  Apparently, she had been denied US visas, but eventually was granted parole so that she could attend court hearings in the US on behalf of a client.  The LA Times provides some background.

These cases show the disparate uses and possibilities in applying for parole – either humanitarian parole or significant public interest parole.  Most humanitarian parole applications center on medical emergencies, family separations, or sympathetic circumstances. We have had particular success in helping those with “split families” – parents in the US as permanent residents, with minor children stuck outside the US because they are no longer eligible for Diversity Lottery visas or subject to long visa lines.  While the average humanitarian parole application takes approximately 4-5 months to adjudicate, review can be expedited, as can be seen in the Afghan girl case.  In addition, it has become more feasible to obtain humanitarian parole; while the approval rate used to hover around 25%, it has recently increased to over 40%.

While the documentation requirements for a humanitarian parole application can be very strict, securing humanitarian parole has become much more of a realistic hope for those with truly no visa option. Please contact us to discuss how we may help.

Posted in Department of Homeland Security, Humanitarian Parole, Visa Denial, Visa Refusal | Leave a comment

Myth #3 – A Consul can “close” a nonimmigrant visa application

Z contacted our firm recently with an unusual request: help him submit a new B visa application to a US consulate after he was told that his previous application was “closed.”  Not understanding exactly what this meant, I asked him to forward any correspondence he had received from the consulate.

The correspondence stated that because more than one year had elapsed since his interview, the case had been closed administratively and that if he wanted to pursue a US visa, he would have to reapply again.  A reapplication meant that he would have to submit a new DS-160 application form and pay a new visa application fee. But this was wrong – his application had been pending under Section 221(g), and the US government failed to take any action on his application. The government cannot “sit on” an application and then use that non-action to “close” a case. If that were the case, think of the visa fees that the US could collect: it would be incentivized not to do anything.

While a consular officer has the right to require the submission of a new visa application after more than one year elapsed from the date of the interview, there is no right to collect additional visa application fees.

If your visa application has been “closed” and no decision was made on it, please contact us.

Posted in 221(g), Consular Officers | Leave a comment

Myth #2: A green card = Citizenship – US Passport – Voting Right

Another myth that we often encounter is the belief that having a green card is almost the equivalent of US citizenship.  People think that with the exception of having a US passport and the right to vote, being a permanent resident confers the same rights as a US citizen.  Unfortunately, that is not the case.

A green card can be taken away; with very limited exception, citizenship cannot.  A green card holder may be considered to have abandoned his US residence and have his green card taken away.  A green card holder can have his green card taken away if he commits a crime.  With the Trump Administration, this is becoming more and more of a real possibility. I was reminded of this the other day reading the story of Phillip Clay.

Mr. Clay was adopted from Korea in 1983 when he was 8 years old. Because US law at that time did not allow for the automatic conferral of citizenship for adopted children, he was a permanent resident.  Strange as it may sound, he and many others like him did not realize that they were not US citizens, that the adoption and citizenship processes were separate.  Mr. Clay became caught up in drugs and shoplifting. He was jailed and placed in mental health centers many times. He had a conviction for a violent crime – kicking a police officer.

In 2012, he was deported to Korea, a country he had not known since a small child and a language he did not speak.  After 5 years in Korea, he committed suicide.  More details about this tragedy can be found here – http://www.philly.com/philly/news/pennsylvania/philadelphia/adopted-from-korea-as-a-child-deported-as-an-adult-philly-man-takes-his-life-20170602.html

Of course, there may be reasons why green card holders decide not to acquire US citizenship.  But for those who delay the decision or don’t even know they are not citizens, the consequences can be tragic, particularly in the enforcement environment we now live in.

Posted in Citizenship, Department of Homeland Security, Naturalization | Leave a comment

Myth #1: A 214(b) Denial is Only for a Lack of “Ties”

I am often contacted by those refused visas under Section 214(b) of the Immigration and Nationality Act, and asked: “How can this be? I have great ties to my country. Married, kids, a good job.  How can they say I don’t have enough ties?” Unfortunately, many do not understand that “ties” are only a part of the 214(b) equation; another factor considered by consular officers is whether the purpose of the trip to the US corresponds to the type of visa applied for.

A gentleman recently contacted me about B-1 business visa refusals under 214(b). His problem was not that he lacked ties to his home country, but that he planned to work in the United States on the visa.  It sounded like he received bad advice from an incompetent attorney, and then “dug his own grave” by attempting to obtain the visa under varying pretexts.

His case was sympathetic in the sense that it sounded like his attorney was genuinely incompetent and perhaps unethical.  The individual set up a company in the US, rented an office, opened a corporate bank account, and placed a substantial amount of money on the account. He rented an apartment and bought a car. His B-1 visa expired, so he applied for a new visa – honestly, telling the consul he planned to work. The consul – correctly – denied the visa.

The company then applied for an L-1 visa for him, but received a 10-page Request for Evidence.  On the advice of his attorney, he applied for a B-1 visa again – with a changed story about the purpose of his visit. Fortunately for him, the consul only denied him under 214(b), when a 212(a)(6)(C) misrepresentation finding may have been appropriate.

Now the gentlemen wants to close the American company, the corporate bank account, and “finish his affairs” in the US, but he cannot receive a visa to do so. Unfortunately for him, the consul believes that he plans to work – and will not issue to him a visa to wrap up his US business.  Once you start down one visa path, it can be difficult to reverse course. (Or as they say, “once the toothpaste is out of the tube, you can’t put it back.”) He will need to have a friend in the US or a representative close the corporate account and send him the personal items he left behind in the US.  Maybe in a couple of years he will be able to obtain a visa to visit Disney World, but right now… he – and his “ties” – are stuck in his home country, wondering what could have been.

If you have been denied under 214(b) and would like to have your case evaluated objectively, please contact us.

Posted in 214(b), B Visa | Leave a comment

Visa Myths

Every day in my practice I encounter erroneous information and false facts. With a view towards dispelling this misinformation, I am introducing a series of blogs to discuss some of the most popular visa myths.  I hope the reader finds the information insightful, and welcome your feedback.

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How Does the Department of State Count Visa Denials? Or “When is a Visa Refusal Not a Refusal?”

In our previous blog, we highlighted the worldwide B visa refusal rates.  But those DOS published rates do not convey the entire picture. As any politician knows, when making any tally, the actual number is not important, but how one determines that number that is. The Department of State is no different.

The Department of State publishes adjusted refusal rates.  The actual refusal rates are not published.  In all likelihood the actual refusal rate is higher, and perhaps in some circumstances, substantially so.

So how does the DOS “adjust” its statistics?  It does so by only counting the last consular action on a particular applicant in a fiscal year. For example, if a businessman applied for a visa and was denied two times in 2015, and on his third attempt, he receives a visa in 2015, only the issuance will be counted; the two refusals will not be counted.  If he did not apply the third time, only his second refusal will be counted; the first refusal will not count in calculating the adjusted refusal statistics. And while the opposite is true – only a denial will count in a situation when an applicant is issued a visa in a fiscal year; later reapplies in the same year (e.g., the visa was only for three months); and then is denied a visa – these situations are significantly less frequent.

The difference may seem trivial, but it deliberately understates the actual visa refusal rate.  In addition, it does not reflect the millions of dollars received by the Department of State from visa re-applicants.  It disregards the initial refusals and perpetuates the “conveyor belt” system; after all, the applicant can always apply again, return for another interview, and he will only count once.   While it is understandable that the Department of State does not want “serial” re-applicants from impacting the refusal rate, at the very least, it should publish the number of such applications, or publish the actual refusal rate.  Transparency requires it.

Posted in 214(b), B Visa, Consular Officers, Department of State, Visa Refusal, Visa Refusal Rates | Leave a comment