Tills Visa Law

Stephen K. Tills, Attorney at LAW

Change in regulation is intended to discourage short-term visitors from obtaining Green cards through marriage to a U.S.C.

In September, 2017, the Trump administration issued a new regulation in the Foreign Affairs Manual (FAM) that discourages foreign nationals who intend to marry U.S. citizens from entering the U.S. as visitors.   This provision increases the time period before which visitors can marry without it resulting in a presumption of misrepresentation at entry. (The FAM provides for the procedures that govern the operations of the State Department, the Foreign Service, Customs and Border Protection, and, when applicable, other federal agencies.)

In the past, the responsible Federal Immigration agencies have tried to strike a balance between the ability of U.S. citizens to marry their foreign national spouse with-out undue burden, while maintaining the integrity of the border inspection system. Thus, those intending on marrying a U.S. Citizen are required to have an immigrant visa if they intend to live in the U.S.. But what if they decide to marry a U.S. citizen shortly after arrival?

THE “30 / 60” RULE

The policy has been that as long as the marriage does not take place within 30 days of entry to the U.S. and the visa application is not filed within 60 days, the application is acceptable without a presumption of misrepresentation. This policy has been changed by the Trump administration.

FAM 302.9-4 (U) MISREPRESENTATION – INA 212(A)(6)(C)(I)
(2) (U) Inconsistent Conduct Within 90 Days of Entry:

(a) (U) However, if an alien violates or engages in conduct inconsistent with his or her non-immigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry. To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, you must request an AO from CA/VO/L/A. As with other grounds that do not require a formal AO, the AO may be informal. See 9 FAM 304.3-2.

As a result of this policy change, visitors to the U.S. will have to wait at-least 90 days before marrying the U.S.C. For those entering the U.S. on a visitor visa, often for a 6 month duration, they would still be able to file the visa applications while in lawful visitor status. But those entering the U.S. on only an ESTA approval are given a maximum of 90 days, and would risk being deported in remaining in the U.S. past their authorized stay.

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A.G. announces end to DACA program

DACA:  Deferred Action for Childhood Arrivals

Deferred Action is not a permanent lawful status in the U.S., only temporary.The Action being deferred is deportation. It is not Lawful Permanent Resident (green card) status, and thus it does not offer a path to citizenship.

  • Renewals accepted for additional 6 months

Those seeking to renew their DACA status, must file the application, form I-821, along with the application for employment authorization, I-765, within 30 days:

 (DHS) Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017. 

Eligibility for DACA extensions

  1. Those whose DACA permits expire by March 5, 2018, may apply for two-year DACA extensions if they apply for the extension by October 5, 2017
  2. Those whose DACA permits expire on and after March 6, 2018 will not be eligible to file DACA extension applications
  3. DHS will continue to adjudicate DACA extension applications properly filed and received by USCIS on and before September 5, 2017, even if the current DACA approval of the applicant expires after March 5, 2018

 

  • Initial applications no longer accepted

DHS will not accept new filings for DACA status.  The program commenced in 2012, and most of those eligible are assumed to have submitted applications.  By the end of 2018, nearly 850,000 applicants had been approved for the status.

Trump Implements Increased Vetting of Visa Applicants

The Trump administration has enhanced the screening of Visa applicants in 3 recent measures.  These actions support the campaign promise use extreme vetting of visa applicants.

First,  the recent program of expedited visas for certain non-immigrants has been cancelled.  Second,  DOS has added a new form form, DS-5535, Supplemental Questions for Visa Applicants,   which standardizes the collection of additional information, including social media usage, from immigrant and nonimmigrant visa applicants “who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities”.

Secondly,   in February,  an executive Order suspended the Visa Interview Waiver Program (VIWP) and effectively mandated in-person interviews for  all nonimmigrant visa applicants, unless an interview is not required by statute or otherwise excepted by the Order.   The VIWP allowed consular officers to waive the interview requirement for applicants seeking o renew nonimmigrant visas within 12 months of expiration of the initial visa in the same classification.

Most recently,  the Department of State issues a new form to be used in the discretion of consular officials.   Form DS-5535, Supplemental Questions for Visa Applicants, standardizes the collection of additional information, including social media usage, from immigrant and nonimmigrant visa applicants “who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities.”

The DAPA amnesty provision is dropped by Trump administration.

Deferred Action for Childhood Arrivals (DACA) 2017
The Obama Administration’s Executive Action known as  Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) has been eliminated by the Trump administration.  But recall that the proposed program was halted by a Federal Judge in Texas in 2015, and was never implemented. That leaves the original program, DACA, as the single remaining “Dream Act”-related Executive Action still in effect.  (That provision applies to those aliens who entered the U.S. prior to reaching age 16, and completed High School, or military Service, and provides temporary lawful status and employment authorization. ) The other program not implemented was the expanded DACA version.
THE POTOMAC SERVICE CENTER
A positive legacy of the never-implemented programs was additional capacity for adjudication of Immigration applications.   In anticipation of the programs DAPA and DACA II,  DHS built an entirely new U.S. CIS Service Center, the  “Potomac Service Center“. This Service Center, located in Arlington, Virginia, went into Service in 2015, and currently processes a variety of applications such as naturalization applications for Military Veterans, and extensions for H1-B visa holders.

Immigration Courts embrace Trump’s New Immigration Policies.

It is becoming obvious to us that the Immigration Courts have changed policies following the issuance of the DHS Enforcement Memos. No changes have been announced by the federal agency, EOIR, in charge of the conduct of Immigration Courts, but the change is evident.

All those with cases before the Immigration Judge should be aware that   there will be no tolerance to deviations from Orders of the Judge.  This would include any motions filed with the Judge.
justice-scales-united-states
We’ve seen the AILA Summary for the Memo “Enforcement of the Immigration Laws to Serve the National Interest”. It “directs DHS personnel to make full use of all statutory authorities to remove aliens expeditiously.” I do see a new February 2017 memo on the EOIR web page, entitled “observing Immigration Court Hearing“, and it does appear the EOIR manual was updated in February 2017.

EOIR: The Executive Office for Immigration Review (EOIR) administers the nation’s immigration laws through court proceedings, appellate reviews, and administrative hearings.

A.G. Sessions announces an end to “Catch and Release”. For those of us legal practitioners, we’ve known about it for weeks!

Attorney General Jeff Sessions announced that U.S. Immigration enforcement agencies will stop the practice of releasing those aliens found inadmissible at the border.  Currently,  aliens who approach the border, “arriving aliens”, are eligible to be released under the supervision (Parole) of the Department of Homeland Security.  Parole is authorized under the Immigration Act in certain circumstances, limited to:  Urgent Humanitarian Reasons,  Significant Public Benefit, and those receiving a favorable “Credible Fear” determination from an asylum officer.

Attorney General Jeff Sessions, USA photo courtesy of queerty.com

Specific examples of humanitarian reasons are reuniting with terminally ill family members,  medical treatment,  tending to family affairs of a deceased relative. The category of Significant public benefit may involve organ donations, or participation in civil litigation.   The more common form has been those who receive a  favorable credible fear finding from an asylum officer.

According to A.G. Sessions,  the catch and release policy will end.  In actuality, it ended soon after inauguration day, January 20th. Since that time,  the exercise of parole by U.S. DHS has been rare; at least that’s been the case near the Northern border.

DHS Establishes New Enforcement Policies

The Trump administration has issued new enforcement guidelines following the Executive Order, parts of which were stayed by the Ninth Circuit Court of Appeals.  The two DHS memos dated February 20, 2017,  separately address Immigration enforcement at the Border, and Enforcement priorities in the Interior. They are meant to implement the Executive Orders issued by President Trump.

The Interior Memo Marks A Major Shift In Interior Enforcement
By U.S. ICE – In Two Ways

FIRST, it expands the use of “Expedited Removal” of undocumented immigrants, allowing customs agents to deport more people faster and with fewer hurdles. The memos expand the period of expedited removal from two weeks to two years after people enter the country, and eliminate a requirement that they were caught within 100 miles of the border.  Those subject to expedited removal are not afforded review of the DHS decision by an Immigration Judge.

Expedited Removal is  found in 8 U.S.C. 1225(b)(1)(A)(1) and is a method of deportation that is shielded from review by Immigration Judges and Federal Courts.  It is carried out exclusively by ICE officials at DHS. There are two grounds by which persons can be charged under Section 235: being an intended immigrant without possessing an immigrant visa,  or,  having engaged in fraud or misrepresentation in order to obtain an immigrant benefit.  (Any other charge of deportation must involve full review by administrative Immigration Judges and an appeal process.)

SECOND, the memo ends the Obama priorities guidelines (which focused mainly on aliens with significant criminal convictions,  those with prior deportation orders, and recent entrants.)  The new memo’s priorities include those who have been charged with a crime, have obtained an immigration benefit by fraud, (work permit for example), have illegally obtained public benefits.   It largely expands the population of aliens subject to ICE arrest warrants.

ice-tillsvisalaw
DHS: (United States) Department of Homeland Security
ICE: (U.S) Immigration and Customs Enforcement (ICE is a section under the DHS)

Roll-out of the Trump Immigration E.O.s

Trump’s Immigration Executive Order (EO ) Sends Shock Waves.

Of the 8 policy changes made on Friday, the 2 causing the most confusion were the suspension of Visas from Nationals of the 7 primarily muslim countries, and the 90 day pause on refugee admissions.  After the announcement,

Winning?   Yyyeee … No.  The roll-out of the Immigration E.O.s was bungled by the Trump administration.  Sorry Mr. President but if you were on the outside observing,  we would see tweets like  “Sad! Our Immigration system is so badly managed. Our safety depends on you. DHS* must be smart!”

eo-trumpAlthough temporary in nature, President Trump’s Orders effect Immigrants who are from Somalia,  Iran, Syria, Iraq, Yemen, Libya and Sudan.  For at least 90 days, all visa applications filed by Nationals from the 7 countries are on hold.  That includes Visitor visas,  Immigrant visas,  refugee and asylee applications for those seeking entry to the U.S., as well numerous applications for those already in the U.S..

FOLLOWING THE ANNOUNCEMENT, the Public needed to know further information on the implementation:
1) Whether those who are nationals of one of the 7 countries but had U.S. Green Card status were subject to the ban upon reentry,  and
2) whether all Immigration-related applications  would be stopped for Nationals of those 7 countries.  It is now 5 days later, and the answer to these questions is still not clear.

Green Card holders are not treated as applicants for admission if they are returning to the U.S. from a brief trip abroad.  The law provides 6 specific circumstances where LPRs can be found to be re-applying for admission, and INA 212(f) which the President invoked is not one of the 6.

As far as which applications were included in the ban on visa issuance,  on Monday U.S. CIS** indicated that all applications were on hold.  On Tuesday (Jan31,2017), we learned that applications for citizenship were NOT included in the ban.

*DHS:Department of Homeland Security
**United States Citizenship and Immigration Services (USCIS)

Obama Ends the Cuban Parole Policy

For nearly thirty years Cuban nationals have been the beneficiary of an exclusive parole policy, known as the “wet foot / dry foot” rule. That rule provided that if a Cuban reaches the shore of the U.S., and requests to stay, they will be paroled into the U.S..  After one year of physical presence, they can file for permanent resident (green card) status. If however, Cubans do not make it ashore but are encountered at sea, the p0licy was to return them to Cuba.
Without the policy, Cubans will be treated like other Foreigners (arriving aliens) encountered at the border.   Aliens seeking admission to the U.S. border must either have pre-authorized visas, advance parole, or be visa exempt. Absent authorization, such aliens are subject to the “expedited removal” policy, which would result in an Order of Removal and 5 year ban for future admission.

WET FOOT/ DRY FOOT” RULE

Cuban refugees float in seas, south of Key West, Fla. Aug.26,1994. (AP / Dave Martin)

Cuban refugees float in seas, south of Key West, Fla. on Aug. 26, 1994. (AP / Dave Martin)

The only exception to the Expedited Removal Order and 5 year ban is for aliens who are successful in obtaining a favorable “credible fear” determination by an asylum officer.  This is the policy that Cubans will now be subjected to.  It is a curious policy change with one week remaining in the Obama administration.

The new electronic I-94

U.S. Customs & Border Protection announced this week (Dec.20, 2016)  that they will be issuing electronic I-94 cards to visitors rather than paper forms going forward.  An I-94 form is needed by all persons except U.S. Citizens, returning resident aliens, aliens with immigrant visas, and most Canadian citizens visiting or in transit. Air and Sea travelers will be issued I-94s during the admission process at the port of entry (including airport pre-flight inspection stations).
ADVANTAGE
An advantage of this new policy is that travelers can access their I-94 and travel history for the past 5 years online. This allows the traveler to print out the information and store it on their mobile devices.

HOW IT WORKS:
As set forth on the CBP website:
(1) The I-94 land border automation will allow travelers to speed their entry into the United States by submitting I-94 applications and paying the $6 fee online prior to their arrival at the port of entry.

(2) The On-line I-94 application will collect information that previously was  collected in-person at the land border port of entry, to include biographic information (name, date of birth, country of citizenship), passport details, visa details (if applicable), and petition/Student and Exchange Visitor Program (SEVIS) number (if applicable).

After submitting an online application for the I-94 and paying the associated fees, travelers must present themselves at a land border port of entry within seven days of the form being submitted to complete the issuance process.

This system replaces the previous paper I-94 process for air and sea travel into the U.S..  Rather than distributing a paper Form I-94, Customs and Border Protection (CBP) will scan a traveler’s passport, generating an electronic arrival record with data elements found on the current paper Form I-94.  CBP will make the electronic I-94 available on the website.

SAMPLE I-94 ON-LINE FORM
us_electronici94

 

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