Category Archives: adjustment of status

Reversal of INA 204(c)/Marriage Fraud Finding + Approval of I-130 and I-485 = A True Success Story

Posted on May 3, 2019 | Comments Off on Reversal of INA 204(c)/Marriage Fraud Finding + Approval of I-130 and I-485 = A True Success Story

On appeal, a USCIS Field Office reconsidered and reversed its denial of our U.S. citizen client’s Form I-130 petition for her spouse under INA 204(c), which is commonly known as the marriage fraud bar. The Board of Immigration Appeals (BIA) has authority to review such decisions, but USCIS chose to vacate the section 204(c) bar on its own and approve the petition without a BIA order. In addition, the spouse was granted a green card based on his concurrently filed Form I-485 application for permanent resident status. These favorable decisions were made within three months of our filing the Notice of Appeal and within two months of our submitting the legal memorandum to support the appeal.

Beneficiary’s File is Flagged Due to USCIS’ Denial of Prior I-130 Petition by Previous U.S. Citizen Spouse

Section 204(c) of the Immigration & Nationality Act states that no petition may be approved if the beneficiary was previously accorded, or sought to be accorded, an immediate relative or preference status as the spouse of a U.S. citizen or permanent resident, through a sham marriage, i.e. a marriage determined by USCIS to have been entered into for the purpose of evading U.S. immigration laws.

In our clients’ case, the beneficiary was previously married to another U.S. citizen who filed a prior I-130 petition for him. They completed two different interviews with USCIS over a two-year period. They were separated and asked various questions about their courtship and marriage, from which USCIS listed a total of five discrepancies between their answers.

USCIS investigators also went to their shared residence when neither of them was present. The petitioner’s mother – who lived with them – was at the home when the officers arrived. She confirmed the couple resided there with her, but the officers found very few personal items belonging to the beneficiary. Through further investigations, USCIS discovered the beneficiary was the lessee of a separate apartment and determined that he lived there instead of with the petitioner.

With the help of prior counsel, the petitioner and beneficiary submitted a Response to the Notice of Intent to Deny the I-130 petition, in which they described the reasons for the discrepancies at the interview, confirmed they lived together, and explained the separate apartment under the beneficiary’s name was being subleased to another person.

Three months after receiving the Response to the NOID, USCIS denied the I-130 petition based on the discrepancies at the interviews and their investigations from which they determined the beneficiary did not live with the petitioner. The evidence filed with the Response was disregarded. The decision was not appealed because the marriage fell apart and the parties ultimately divorced.

Beneficiary Faces INA 204(c)/Marriage Fraud Bar in Subsequent I-130 Petition by Second U.S. Citizen Spouse

Following his divorce from his first U.S. citizen spouse, the beneficiary entered into marriage to another U.S. citizen, who filed an I-130 petition for him about 18 months after the prior petition was denied. After interviewing the couple, USCIS issued a Notice of Intent to Deny the petition a year later.

In the Notice of Intent to Deny, USCIS acknowledged the couple’s marriage is bona fide and cited to no discrepancies between their testimonies at the interview. The Service, however, pointed out the beneficiary is ineligible for an I-130 approval under INA 204(c), in that his prior marriage was found to be a sham.

Petitioner Receives Guidance on Responding to Notice of Intent to Deny through Consultation

The petitioner contacted our firm, Dyan Williams Law, for help just four days before the Response to Notice of Intent to Deny was due to USCIS. Due to the time constraints and pre-existing commitments, we declined to represent her in the Response, but agreed to provide her with a consultation.

To prepare for the consultation, I reviewed the Notice of Intent to Deny the petition, the earlier Response to Notice of Intent to Deny that was filed by the prior U.S. citizen spouse, and other key items. During our telephone call, I gave the petitioner a list of documents and information to gather and present in her Response. I also summarized applicable case law and essential legal arguments she should mention in her Response.

Using my recommendations, the petitioner filed a timely and persuasive Response, which included a notarized declaration from the beneficiary’s ex-spouse confirming they had a good-faith marriage.

Representation on Appeal Leads to Reversal of INA 204(c) Finding and Approval of I-130 and I-485

A week after receiving the Response to Notice of Intent to Deny, USCIS issued a decision denying the I-130 petition under INA 204(c). The Service found there was no credible evidence to substantiate the claim of a bona fide marriage between the beneficiary and his prior U.S. citizen spouse.

The petitioner contacted me soon after she received the decision. This time, I accepted her case for representation and agreed to prepare and file the appeal on her behalf.

On appeal, I argued it was not the petitioner’s burden to prove her spouse’s prior marriage was bona fide. Rather, the Service has the burden to show by “substantial and probative evidence” that the beneficiary previously attempted or conspired to enter into a sham marriage for U.S. immigration purposes. I cited to applicable law, the credible explanations for the discrepancies at the interviews, and material evidence demonstrating the beneficiary and his prior spouse lived together and shared a real marriage before it ended in divorce. I noted the Service made a reversible error by applying the harsh statute – INA 204(c) – to deny the petition.

About two months after the legal memorandum to support the appeal was submitted, the petitioner informed me that USCIS approved the I-130 petition. She and her spouse also received notice that the concurrently filed I-485 application was reopened by USCIS, on its own initiative.

A couple weeks later, the beneficiary received his 10-year green card in the mail. He is now a permanent resident of the United States who may eventually file for naturalization (citizenship). After more than seven years of seeking to obtain permanent residence – first through a failed marriage and then via his current marriage – he finally achieved true success in his immigration journey with our counsel.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, bona fide marriage, green card, immigrant petition, immigration fraud, marriage fraud, success story, The Legal Immigrant - Immigration Blog

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Avoid the NOID by Supplementing the Record and Responding to RFE

Posted on April 19, 2019 | Comments Off on Avoid the NOID by Supplementing the Record and Responding to RFE

USCIS will issue a Notice of Intent to Deny a petition (e.g. Form I-130 or Form I-140) when it has derogatory information or has evidence the beneficiary is ineligible for the benefit sought. A common example is when there is insufficient evidence of a bona fide marriage between the U.S. citizen (or permanent resident) petitioner and the foreign national beneficiary seeking marriage-based permanent residence.

A NOID is one last opportunity to rebut adverse findings that support a denial of the petition. To avoid a NOID, the petitioner should proactively supplement the record and/or file a full and timely response to USCIS’ Request for Evidence (RFE), if one is issued.

In a July 13, 2018 Policy Memorandum, titled Issuance of Certain RFEs and NOIDS; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b), USCIS officers are given full discretion to deny applications and petitions without first issuing an RFE or a NOID, when appropriate. This includes cases when (a) there is no legal basis to receive the benefit sought and (b) the required initial evidence is not submitted with the petition or application.

RFE and NOID: Similar, But Not the Same

Request for Evidence

An RFE is issued when the officer is uncertain whether or not the request should be approved and needs more evidence to make a decision.

The Policy Memorandum states that in an RFE, USCIS should (a) identify the eligibility requirement that has not been established and why the evidence submitted was insufficient, (b) identify any missing evidence required by statute, regulation or form instruction, (c) identify examples of other evidence that may be submitted to establish eligibility; and (d) request that evidence.

The normal timeframe to submit a response to an RFE is 87 days. A follow-up RFE (or a NOID) might be in order if the response opens up a new line of inquiry or raises eligibility issues that were not considered during initial case review. USCIS may also deny the application or petition if all the requested evidence is not submitted, especially when this prevents a material line of inquiry.

Notice of Intent to Deny

A NOID is given when the officer is leaning toward a denial, but the applicant, petitioner or requestor is unaware of the negative information or its impact on eligibility for the benefit sought.

The Policy Memorandum states, “When a preliminary decision has been made to deny an application or petition and the denial is not based on lack of initial evidence or a statutory denial…the adjudicator must issue a written NOID to the applicant, petitioner, or requestor providing up to a maximum of 30 days to respond to the NOID.”

A NOID is much more serious than an RFE. Unlike an RFE that lists exactly what evidence is missing, a NOID describes derogatory information to support a denial. You have to figure out what evidence and explanations to submit to rebut all the allegations in the NOID and prevent a denial. You also have a shorter time frame (e.g. 30 days instead of 87 days) to address complicated issues. NOTE: When the decision is served by mail, there is an additional 3 days to file the response under 8 CFR § 103.8(b).

Supplement the Record and/or File a Full and Timely RFE Response to Avoid the NOID

While the case is pending — and before a Request for Evidence or Notice of Intent to Deny is issued — it is sometimes appropriate to supplement the record with additional evidence.

In a recently approved I-130 petition and I-485 (green card) application case, I counseled my clients to submit written affidavits addressing discrepancies between their oral testimonies at the green card interview with USCIS. Among the discrepancies were very different accounts of the marriage proposal, including where, when and how it occured. In their follow-up affidavits, they provided credible explanations for the differences in their answers.

Furthermore, at the time of the interview, they were living in separate apartments due to financial reasons, cultural factors, and logistical considerations. I advised them to submit rental applications showing they were actively seeking to live together. The supplemental evidence was sent to USCIS a month after the interview.

Four months later, the couple finally moved in together after securing their own apartment. We submitted their joint lease agreement and newly filed joint tax return demonstrating the bona fide nature of their marriage.

Seven months after receiving this supplemental evidence, USCIS issued a Request for Evidence asking for more evidence of a shared life together. The RFE listed examples such as lease(s) showing the same residence, documents showing shared finances and obligations, pictures of their wedding, and sworn affidavits from others with personal knowledge of the validity of the marriage.

Within the 87-day timeframe, we provided a full response including the couple’s new joint lease agreement, shared car insurance and health insurance policies, life insurance record listing one party as the other’s primary beneficiary, letters from neighbors confirming they live together, family photographs, and affidavits from relatives describing their good-faith marriage.

A month after receiving the Response to RFE, the Service approved the I-130 petition. After the updated Form I-693 (Report of Medical Examination and Vaccination Record) was provided, upon request, USCIS soon approved the concurrently filed I-485 application for permanent residence.

The couple had celebrated their second wedding anniversary by the time the I-485 application was adjudicated. A 10-year green card (instead of 2-year conditional card) was issued and there will be no need to file a Form I-751 petition to remove conditions on residence.

Despite the discrepancies at the interview and their living in separate residence for several months, my clients got their case approved by proactively supplementing the record and submitting a full and timely response to the RFE. These actions were key to avoiding a Notice of Intent to Deny, which is just one step short of a denial.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Approval of I-601A Provisional Unlawful Presence Waiver + Immigrant Visa Grant = A True Success Story

Posted on February 22, 2019 | Comments Off on Approval of I-601A Provisional Unlawful Presence Waiver + Immigrant Visa Grant = A True Success Story

U.S. Citizenship & Immigration Services (USCIS) approved the Form I-601A, Application for Provisional Unlawful Presence Waiver, of the spouse of a U.S. citizen after denying his two earlier requests. On the first try, he had prior counsel’s help. His second attempt was made pro se. With our representation in the third and final I-601A application, he persuaded USCIS to grant the waiver on the merits, based on the extreme hardships his U.S. citizen spouse would suffer if he were denied lawful admission to the United States. He further received an immigrant visa within three weeks of attending his interview at the U.S. Consulate abroad.

Problem: Unlawful Presence Bar

Section 212(a)(9)(B)(i) of the Immigration & Nationality Act (INA) states that a person who accrues unlawful presence in the U.S. for more than 180 days, but less than one year, and then departs the U.S. prior to commencement of removal proceedings, is barred from re-entering the country for three years.  The bar to re-entry is 10 years if the unlawful presence lasted one year or more. The 3/10 year unlawful presence bar is triggered when the person departs the U.S. – even if it is to legalize his status by applying for an immigrant visa at the U.S. Consulate overseas.

Our client could not adjust to permanent resident status within the United States, despite being the beneficiary of an approved I-130 immigrant petition filed by his U.S. citizen spouse. The reason is he entered the United States without proper inspection and did not meet the lawful admission requirement to file for a green card inside the country. A departure from the U.S. was necessary for him to get his immigrant visa and then return as a permanent resident.

Because he had been in the U.S. for almost 20 years without authorization (by the time the third waiver request was filed), he was subject to the 10-year unlawful presence bar to re-entry. USCIS’ grant of the I-601A provisional waiver gave him some assurance – but no guarantee – that he would be issued the immigrant visa at the U.S. Consulate. The I-601A waiver covers only the unlawful presence bar, so it is subject to revocation by the U.S. Consulate if other inadmissibility grounds apply.

In its decisions denying the previous two I-601A waiver requests, USCIS stated that prior to his last illegal re-entry, the applicant may have entered the U.S. without inspection and admission or parole on more than one occasion and he may have been unlawfully present in the U.S. for more than one year during prior stays.

I advised the applicant and his spouse that if he had indeed illegally re-entered the country after accruing more than one year of unlawful presence, he would have a permanent bar under INA 212(a)(9)(C). While a person may file a separate Form I-212 application to be excused from this permanent bar, he may not do so until he has been outside the United States for at least 10 years.

After being advised of the risk of being found inadmissible under INA 212(a)(9)(C), in addition to INA 212(a)(9)(B)(i), the applicant agreed to still move forward with the I-601A waiver application and depart the U.S. for consular processing.

Solution: Provisional Waiver

To support the I-601A waiver application, I submitted a legal memorandum clarifying the applicant had just one illegal entry to the United States and was subject only to the 10-year unlawful presence bar. I pointed out that the earlier entry date on his Temporary Protected Status (TPS) application was filled out in error by a notario – without his knowledge and consent – to meet the TPS eligibility requirement. In the TPS request, he did not provide any evidence or information reflecting that earlier entry date because it did not actually occur.

I also counseled the applicant and his spouse on the documentary evidence and information to submit to meet the extreme hardship requirement. This came with challenges because the spouse did not have any serious medical condition, life-threatening illness, or other individual factor to show she would face extreme hardship due to her staying in the U.S. without her spouse or relocating abroad to be with him.

The legal memorandum outlined a multitude of factors and the totality of the circumstances to satisfy the extreme hardship standard. For instance, we described the spouse’s vulnerability to psychological problems, her reliance on him to care for their three young children, and the poor living conditions and high crime rate in his home country.

Outcome: Waiver Approval + Immigrant Visa Grant

Within four months of receiving the Form I-601A waiver application, USCIS approved it. I next provided further counseling to the applicant and his spouse on the Immigrant Visa application process and what to expect at the visa interview.

As planned, the applicant departed the United States to appear for his immigrant visa interview at the U.S. Consulate in his home country. No additional inadmissibility grounds, such as the INA 212(a)(9)(C) bar, were found by the Consulate. The I-601A waiver excused him from the 10-year unlawful presence bar and allowed him to receive the immigrant visa.

His spouse sent me a note confirming he was admitted to the United States with his immigrant visa and was granted lawful permanent residence. She wrote, “We thank you for your diligent work and your representation. I am very satisfied with your legal services and will refer you with no hesitation.“

The two prior I-601A denials and possible INA 212(a)(9)(C)(i) bar did not deter the applicant from pursuing the waiver a third time before finally receiving it and the immigrant visa 11 years after the I-130 had been filed. Thankfully, he was able to return home to his family and continue his life in the U.S. as a permanent resident, after living in the country for almost 20 years without status.

Representing the applicant in his third and final I-601A waiver request and guiding him through the Immigrant Visa process led to true success.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

Posted on August 9, 2018 | Comments Off on Updated Notice to Appear (NTA) Guidance Requires USCIS to Initiate Removal Proceedings In More Cases

On June 28, 2018, USCIS issued updated guidance requiring its officers to initiate removal proceedings in more cases to align with President Trump’s executive order, Enhancing Public Safety in the Interior of the United States.  USCIS Director L. Francis Cissna said the new policy equips USCIS officers to better support the immigration enforcement priorities of the Department of Homeland Security (DHS).

The 2018 memorandum instructs USCIS to issue a Notice to Appear in removal proceedings before an Immigration Judge to inadmissible or deportable persons in an expanded range of situations, instead of referring NTAs to the U.S. Immigration & Customs Enforcement (ICE) in limited cases.  One major change is that an NTA must be issued whenever a person’s immigration benefit request is denied and he or she is “not lawfully present” in the United States.

What is a Notice to Appear?

A Notice to Appear is a Form I-862 the DHS issues to initiate removal proceedings against a person. The NTA includes the charges against the person and alleges the immigration laws he or she violated.  Some NTAs include the date and time of the initial hearing, when you first appear before an immigration judge who decides whether you should be removed or whether you qualify for relief, including voluntary departure in lieu of a removal order.

What Was the Previous USCIS Policy on Issuing a Notice to Appear? 

The November 7, 2011 Policy Memorandum (PM), which is now superseded by the June 28, 2018 PM, provided “USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of resources of the Department of Homeland Security and the Department of Justice to enhance national security, public safety, and the integrity of the immigration system. ”

The 2011 policy instructed USCIS to issue an NTA in the following situations:

  • Cases where it is required by statute or regulation, such as termination of Conditional Permanent Resident Status and denials of Form I-751, and asylum referrals.
  • Fraud or willful misrepresentation/section INA 212(a)(6)(C) cases when a Statement of Findings substantiating fraud is part of the record.
  • In naturalization (Form N-400 application) cases where the applicant is removable, including those who were inadmissible at the time of obtaining permanent residence.

The 2011 policy further directed USCIS to refer matters to ICE in the following situations:

  • Egregious Public Safety (EPS) cases “where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of” certain specified aggravated felonies as defined under section 101(a)(43) of the INA; is a Human Rights Violator, is a known or suspected street gang member or is subject to Interpol  hits; or has re-entered the U.S. after removal subsequent to a felony conviction where no Form I-212, Application for Consent to Reapply for Admission, has been approved.
  • Cases where the person is inadmissible or removable due to a criminal offense falling outside of the EPS definition, after USCIS completes adjudication.

What is the Current USCIS Policy on Issuing a Notice to Appear?

The June 28, 2018 Policy Memorandum (PM) requires USCIS to issue a Notice to Appear in a broader range of cases without first consulting ICE.

Many more persons will be placed in removal proceedings as USCIS is now required to issue an NTA in the following situations:

  • If an application or petition for immigration benefits is denied and the person is not in lawful status (not lawfully present).
  • If an application or petition for immigration benefits is denied and the person is removable (i.e. subject to any removability grounds under INA 237), especially when there is evidence of fraud or misrepresentation and/or abuse of public  benefit programs.
  • Criminal cases in which the applicant is removable and has been convicted of or charged with any criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or is the ground of removability.
  • Naturalization cases in which the applicant is removable and USCIS denies a Form N-400, Application for Naturalization, on good moral character grounds due to a criminal offense.

USCIS will continue to apply the 2011 NTA guidance to the following:

  • Cases involving national security concerns.
  • Cases where issuing an NTA is required by statute or regulation.
  • Temporary Protected Status (TPS) cases, except where, after applying TPS regulatory provisions, a TPS denial or withdrawal results in an individual having no other lawful immigration status.
  • Deferred Action for Childhood Arrivals (DACA) recipients and applicants when USCIS is: (1) processing an initial or renewal DACA request or DACA-related benefit request; or (2) processing a DACA recipient for possible termination of DACA.

UPDATE: On September 27, USCIS announced it will begin implementing the new guidance on October 1 in certain cases. For instance, it may issue NTAs on denied status-impacting applications, including Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status. The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. 

In a September 27th teleconference, USCIS also said it will not issue an NTA immediately upon denial of an immigration benefit.  Normally, it will wait for the expiration of the motion or appeal period before issuing an NTA. If an NTA is issued before a motion or appeal is filed or while it is pending, and USCIS takes favorable action on the motion or appeal, USCIS will notify ICE. Withdrawing an application does not cancel USCIS’s authority to issue an NTA. 

Potential Negative Effects of the NTA Policy Change

The new NTA guidance might discourage eligible applicants from seeking immigration benefits out of fear of getting their requests denied and being placed in removal proceedings if they are not lawfully present.  This includes persons applying for a green card (lawful permanent resident status), a change or extension of status, a waiver of inadmissibility and other immigration relief.

Departing the United States on one’s own, after being denied an immigration benefit, will bring harsh penalties when an NTA is issued and the person fails to appear for the scheduled Immigration Court hearing. An in absentia removal order is issued if there is clear, unequivocal and convincing evidence that written notice was provided and that the person is removable, but did not attend the proceeding.

At the same time, those who wait in the United States for an initial court date to appear before an immigration judge will continue to accrue unlawful presence toward the 3/10-year bar to re-entry under INA 212(a)(9)(B).  A person who accrues unlawful presence of more than 180 days but less than one year is barred from re-entering the U.S. for three years. The bar to re-entry is 10 years if the person accrues unlawful presence of more than one year prior to departure. The initiation of removal proceedings does not stop the accrual of unlawful presence.

Furthermore, the updated policy turns USCIS into another immigration enforcement component of DHS, along with ICE and the U.S. Customs & Border Protection (CBP).  An increase in the issuance of NTAs will create additional backlog in the immigration court system and lengthen USCIS processing times.

Conclusion

Besides the new NTA policy, USCIS issued updated guidance to make it easier to deny a petition or application without first issuing a Request for Evidence or Notice of Intent to Deny. Another  USCIS policy change also subjects more nonimmigrant students and exchange visitors to accruing unlawful presence toward the 3/10-year bar, as well as the permanent bar under INA 212(a)(9)(C).

All these new policies are in line with the February 2018 change in USCIS’ mission statement, deleting sentences that refer to the United States as “a nation of immigrants” and to noncitizens who apply and pay for immigration benefits as “customers.” USCIS Director Cissna explained that this is “a reminder that we are always working for the American people.”

For more information, read our related articles:

Updated Policy Makes It Easier for USCIS to Deny Petitions and Applications Without First Issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID)

USCIS Policy Change Makes Nonimmigrant Students and Exchange Visitors More Likely to Accrue Unlawful Presence Toward 3/10-Year Bar and Permanent Bar

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, bona fide marriage, citizenship, deferred action, green card, immigrant petition, immigration consequences of criminal convictions, immigration fraud, marriage fraud, naturalization, nonimmigrant visa, The Legal Immigrant - Immigration Blog, waiver

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Trump’s Four Pillars for Immigration Reform

Posted on February 24, 2018 | Comments Off on Trump’s Four Pillars for Immigration Reform

In his State of the Union address on January 30, 2018, after completing his first year in office, President Trump officially introduced his Administration’s four pillars for immigration reform.

The first pillar “offers a path to citizenship for 1.8 million illegal immigrants who were brought [to the United States] by their parents at a young age…”  Commonly known as Dreamers, individuals within this group who meet education and work requirements, and show good moral character, will be eligible for naturalization (U.S. citizenship), according to Trump.

The second pillar aims to enhance border security. It involves building a big wall on the U.S.-Mexico border and hiring more border patrol officers. “Crucially, our plan closes the terrible loopholes exploited by criminals and terrorists to enter our country — and it finally ends the dangerous practice of ‘catch and release’,” Trump said.

The third pillar ends the Diversity Visa Lottery, which Trump criticized as “a program that randomly hands out green cards without any regard for skill, merit, or the safety of our people.” He further called for a “merit-based immigration system.”

The fourth pillar “protects the nuclear family by ending chain migration” and restricting family-based immigration to only spouses and minor children. Trump claimed that under the current system, “a single immigrant can bring in virtually unlimited numbers of distant relatives.”

Trump deems the Diversity Visa Lottery program and “chain migration” as sources of terrorist attacks and threats to the national security of the United States.

While Trump has said Congress should pass a “bill of love” for young, undocumented immigrants who qualified for the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program, which he rescinded on September 5, 2017, his support does not come without conditions.

Conditioning protections for Dreamers and DACA holders on federal funding for a Southern border wall and  reductions in legal immigration, in particular, makes it harder for a gridlocked Congress to reach a mutually agreeable, workable solution. Congress’ failure on February 15 to secure enough votes to advance any of the four immigration bills up for a vote is a prime example. To learn more, read White House-Backed Bill Proposing Protections for Dreamers/DACA Holders, Restrictions on Family-Based Immigration, and End to Diversity Visa Lottery Fails to Pass in the Senate; Worries Prevail.

In the meantime, the Trump Administration has relied on presidential proclamations and executive policies to bypass Congress and impose travel restrictions and broaden immigration enforcement priorities. While the termination of prior, executive orders and the introduction of new ones are subject to checks and balances, including review by U.S. federal courts and the U.S. Supreme Court, they still have ripple effects.

Section 212(f) of the Immigration and Nationality Act (INA) gives the President broad authority to suspend entry of a class of foreign nationals temporarily if he or determines the entry of such aliens would be detrimental to the U.S. interest.

Trump’s Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Proclamation 9645) – dubbed “Travel Ban 3.0” – indefinitely suspends entry to the United States for nationals of eight countries (Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, Somalia).

There are a few exceptions, such as lawful permanent residents, asylees, and diplomatic visa holders from these countries. Consular officers and immigration officials may also grant case-by-case waivers to those who would otherwise be subject to the entry ban, if denial of their admission would cause them undue hardship and their admission would not pose a threat to the national security of public safety of the United States and would be in the national interest.

Federal courts in Hawaii and Maryland issued preliminary injunctions partially blocking Travel Ban 3.0, but they were lifted by the U.S. Supreme Court on December 4, 2017, allowing Trump’s proclamation to go into effect. The U.S. Supreme Court is expected to hear oral argument on April 25 regarding whether the ban violates U.S. immigration law or the U.S. Constitution.

Trump’s termination of the DACA program has spurred federal lawsuits, which resulted in February 13th New York and January 9th San Francisco court orders, issuing temporary injunctions to block the Administration’s rescission. As a result, U.S. Citizenship & Immigration Services (USCIS) — which recently changed its mission statement to remove the term “nation of immigrants” and emphasize “protecting Americans” — continues to accept DACA renewal requests for now.

The Administration’s expansion of immigration enforcement priorities has also made certain, undocumented immigrants increasingly vulnerable at their USCIS interviews. Spouses of U.S. citizens are now more likely to be apprehended by U.S. Immigration & Customs Enforcement (ICE) at in-person interviews with USCIS, when they seek an approval of a marriage-based petition to legalize their status, but have already been issued a removal order, been previously caught unlawfully entering the United States, have criminal convictions, etc.

In light of the Administration’s immigration policies, it has become more critical to have experienced, attentive immigration counsel evaluate your eligibility for immigration benefits (preferably before you file for them) and accompany you to in-person interviews with USCIS. For more information, read 5 Benefits of Having Immigration Counsel at Your In-Person Interview with USCIS.

Contact Dyan Williams Law to help you evaluate your qualifications for permanent residence or naturalization, overcome visa refusals, apply for waivers of inadmissibility, and represent you at green card or citizenship-related interviews with USCIS.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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