Tills Visa Law

Stephen K. Tills, Attorney at LAW

U.S. DOS Reduces Visa Appointments At Consular Posts

Those waiting for visa interviews to obtain their non-immigrant or immigrant visas to the U.S. will find their appointments have likely been delayed due to safety precautions by Consulate offices abroad.  In their announcement, DOS included the webpage address for the offices most effected:

 

In an attempt to keep stakeholders apprised, the Department of State (DOS) has compiled a list of embassy websites for country-specific information concerning COVID-19. This page provides links to the COVID-19 dedicated page for each nation’s embassy which includes information concerning health services, recommendations, and in some cases, information concerning a reduction or temporary suspension of visa services.

Mike Pompeo U.S. Secretary of State is the President’s chief foreign affairs adviser.

 

Travel Warning for Visitors

U.S. CUSTOMS AND BORDER PROTECTION

Effective at 11:59 p.m. eastern daylight time on March 13, 2020, the entry into the United States is suspended for most individuals, other than United States citizens and lawful permanent residents, who have been physically present within a Schengen Area (Europe) country within 14 days of travel to the United States. Any traveler with a valid ESTA who is subject to the Proclamation and who attempts to travel the United States in violation of the Proclamation will have their ESTA canceled. ESTA will not refund applications that are canceled due to this Proclamation.

Border Crossing Guidelines for United States Entry

New ICE enforcement policy- COVID19

On March 19, 2020, ICE announced a pause in removal procedures due to the virus pandemic.  ICE will focus its detention and removal operations towards persons with serious criminal backgrounds and those deemed a danger to society.  Those in custody who have removal orders or are in pending removal proceedings can seek to be released from DHS custody on bond or under ICE parole.

See ice.gov – FAQ:

          Has ICE modified enforcement efforts during COVID-19?

To ensure the welfare and safety of the general public as well as officers and agents in light of the ongoing COVID-19 pandemic response, U.S. Immigration and Customs Enforcement (ICE) will temporarily adjust its enforcement posture beginning today, March 18, 2020. ICE’s highest priorities are to promote life-saving and public safety activities.

ICE Enforcement and Removal Operations (ERO) will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds. For those individuals who do not fall into those categories, ERO will exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention, as appropriate.

Homeland Security Investigations will continue to carry out mission critical criminal investigations and enforcement operations as determined necessary to maintain public safety and national security. Examples include investigations into child exploitation, gangs, narcotics trafficking, human trafficking, human smuggling, and continued participation on the Joint Terrorism Task Force. This work will be conducted based on ability to coordinate and work with prosecutors from the Department of Justice and intake at both the U.S. Marshals Service and Bureau of Prisons.

Consistent with its sensitive locations policy, during the COVID-19 crisis, ICE will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances. Individuals should not avoid seeking medical care because they fear civil immigration enforcement.

The New “Public Charge” Rules

The new rules are published and being implemented on or about October 14, 2019.

KEY TAKEAWAYS

1,  Any Immigrant Visa cases pending with U.S. DOS abroad or with U.S. DHS prior to that date are not effected.

2,  The Alien applicant is required to submit a three year financial history, and include a record of public benefits received, both monetary, and non-monetary.

3,  DHS will only consider public benefits received directly by the alien for the alien’s own benefit, or where the alien is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another.

4,  DHS also will not attribute receipt of a public benefit by one or more members of the alien’s household to the alien unless the alien is also a listed beneficiary of the public benefit.

Ken Cuccinelli, the acting director of the U.S. Citizenship & Immigration Services, holds a news conference Monday, Aug. 12, after the Trump administration announced it would start denying green cards for immigrants if they use public assistance programs such as as food stamps and Medicaid. The new rule is set to take effect in mid-October. published by pbs.org

 

New Labor Certification Process for H-2B workers

FOREIGN LABOR APPLICATION GATEWAY (FLAG)

H-2B workers are temporary, non-agricultural workers that enter the U.S. as visitors with work authorization.  These workers are often employed in seasonal jobs such as landscaping, roofing, as carnival workers.
On Tuesday, June 4, 2019, DOL’s Office of Foreign Labor Certification (OFLC) notified stakeholders that starting Monday, June 10, 2019, all prevailing wage determination requests (ETA Form 9141) must be filed through the new Foreign Labor Application Gateway (FLAG) system and that as of Sunday, June 9, 2019, at 11:59 pm (ET), the iCERT system will be deactivated for ETA Form 9141 filings.

FLAG is a cloud-based portal designed to replace OFLC’s current iCERT System and will serve as the new application filing and case management solution for all foreign labor certification programs, including H-2A, H-2B, LCA, CW-1, Prevailing Wage and PERM applications.

Three Countries, the Dominican Republic, Ethiopia and Philippines have been removed from the list of participating Countries due to their non-cooperation with the issuance  of travel documents for deportees.

Social Media “Vetting” for Visa applicants

SOCIAL MEDIA IDENTIFIERS

As of May 31, 2019 virtually all immigrant and non-immigrant visa applicants are now required to disclose social media identifiers from the last five years as part of the visa application process.

Visa applicants are now required to provide their username or handle for major social media sites, using a drop down menu in the online application.  They will have to recall all such media platforms for the past five years, including usernames, not an easy task.  In addition, they will be subjecting their personal networks to scrutiny.

When DHS checks the social media of someone trying to obtain permission to come to the United States or someone already at or near the border, it inevitably picks up information about people with whom they interact. For example, ICE agents searching a traveler’s smartphone at or near the border can download the entirety of her Facebook and Twitter accounts and go through them later.

In addition, CBP agents conducting social media checks for people applying for visa waivers (available to the citizens of 38 countries) can examine not only the applicant’s posts but those of the people who interacted with her on social media (even if uninvited), and may retain information so long as the agent believes it is “relevant” to the waiver decision. The program also allows agents to proactively identify an applicant’s contacts who might “pose a potential risk to the homeland.”

CIS closing Visa Processing sites abroad

Lee Francis Cissna

The director of United States Citizenship and Immigration Services, L. Francis Cissna, told senior staff members this week that the international division, which has operations in more than 20 countries, would close down by the end of the year, according to two people with knowledge of the meeting.

Agency officials said the move was intended to provide more staff resources to handle the lengthy backlog in asylum applications from tens of thousands of migrants crossing the southern border every month.

The overseas division provides logistical assistance to American citizens, lawful permanent residents and refugees seeking to bring family members to the United States; people who have been persecuted and wish to resettle in the United States; Americans who adopt children internationally; and members of the military and their families applying for citizenship.

That work will be transferred to the 5 U.S. CIS Regional Service Centers in the U.S.  which currently process applications from applicants filing domestically.

USCIS Electronic Reading Room

Supreme Court rules in favor of DHS mandatory detention policy

The Supreme Court ruled today in Nielson v. Preap that those foreign nationals subject to mandatory detention for committing crimes in the U.S. may be detained regardless of when they last left criminal detention.  Preap and a 2nd Petitioner had sued DHS because they were arrested and detained by U.S. ICE years after they had been released from criminal custody.  They argued that the statute, INA section 236(c), reads “when released” and requires ICE to make their arrest immediately after leaving criminal custody, or not subject them to detention at all.   Judge Alito wrote for the 5 member conservative majority.

Justice Alito with opinion in Nielsen v. Preap

Judge Breyer wrote a dissenting opinion finding that the majority interpretation of “when released” would significantly expand the Secretary’s authority to deny bail hearings.

“Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without the possibility of release”.

Justice Stephen Breyer


The New “Public Charge” Rules

The Trump administration has published proposed new rules to discourage Immigrants and visitors from becoming dependent on public benefits after their admission to the U.S..  The proposed rules would require disclosure of the applicant’s history of receipt of any monetary benefits, so DHS is proposing to consider all federal, state, local, and tribal cash assistance for income maintenance as part of the public benefits definition. Also taken into consideration would be non-monetary benefits such as Medicaid.  Currently, Immigrants must submit an “Affidavit of Support” from a sponsor that assures that the Immigrant will be financially sponsored to 125% of the HHS “poverty level” for a period of ten years.

Immigration Process

To enforce the policy, U.S. CIS has issued a new form,  Form I-944. This form would collect information based on factors such as age; health; family status; assets, resources, and financial status; and education and skills, so that USCIS could determine whether an applicant would be inadmissible to the United States based on public charge grounds. Evidence of receipt of public benefits within the 36 months immediately preceding the application would carry significant weight in determining whether the alien is likely to become a public charge. An additional requirement is that the applicant must bear the cost of obtaining a credit report and credit score from any one of the three major credit bureaus in the United States to be submitted with the application.  (Consumers may obtain a free credit report once a year from each of the three major consumer reporting agencies (i.e., credit bureaus) under the Fair Credit Reporting Act (FCRA).)

 

 

 

Appendix
Department of Homeland Security (DHS).
U.S. Citizenship and Immigration Services (USCIS) is the federal agency that oversees lawful immigration to the United States
The Fair Credit Reporting Act, 15 U.S.C. § 1681 (FCRA) is U.S. Federal Government legislation enacted to promote the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies.

Change to Asylum Policy aimed at Central American Asylum seekers

Attorney General Sessions announced today that U.S. asylum will no longer be available to persons fleeing gang violence and domestic abuse caused by private persecutors. The policy appears to be aimed squarely at those seeking asylum from Central America, mainly Guatemala, Honduras, El  Salvardore, and Nicaragua.  What do those countries have in common?  Their governments are unable to control drug-trafficking cartels and gangs like the ‘Mara”, and have a poor record of preventing domestic violence.   The U.S. is now denying asylum eligibility to those seeking protection on those grounds where the persecutor is a private actor.

asylum USA Immigration from Central AmericaMembers of a caravan of migrants from Central America and supporters gather on both sides of the border fence between Mexico and the U.S. as part of a demonstration, prior to preparations for an asylum request in the U.S., in Tijuana, Mexico, Sunday. | REUTERS

POLITICAL ASYLUM
The concept of asylum has traditionally been known as political asylum.  But under U.S. asylum law there are 5 separate grounds for asylum:  political, religious. nationality, race, and membership in a particular social group (PSG).  The asylum claimant must show that the persecution is caused by the government in their native country, or by a group that the government is unable to control.   The claim for protection from gangs and domestic violence is usually couched in terms of a PSG since it does not involve a political motive, nor fit within the other categories. However, these claims often involve private actors, especially claims involving domestic violence.

APPLICATION FOR ASYLUM
To make a claim for asylum,  the applicant must establish that a reasonable person in their position would have a well-founded fear of persecution if returned to their country.  The claims are presented to asylum officers and Immigration Judges and must establish that their claims fall within one of the 5 grounds.  Those fleeing from gangs and domestic abusers have sought protection by having “Membership in a particular social group”, since their fear involves persecution by private actors.      But, recently, the Attorney General certified to himself that female domestic violence survivors may not fall within this ground of asylum, and with this new decision,  Attorney General Sessions has now eliminated asylum protection for those seeking protection from gang violence as well.

%d bloggers like this: