Category Archives: citizenship

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The November 7, 2011 Policy Memorandum (PM), which is now superseded by the June 28, 2018 PM, provided “USCIS guidelines for referring cases and issuing Notices to Appear (NTAs) in a manner that promotes the sound use of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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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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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

Of the four immigration bills that were recently considered by the Senate, three offered a path to citizenship for 1.8 million undocumented immigrants brought to the U.S. when they were children. But the White House’s calls to end “chain migration” by limiting family-based immigration to only spouses and minor children of U.S. citizens (and possibly permanent residents), as well as scrap the Diversity Visa Lottery program, have made it harder for a divided Congress to address the nation’s immigration problems with a legislative fix.

Comprehensive immigration reform remains a divisive issue in Congress, as reflected in the Senate’s failure to advance any of the four immigration bills up for a vote on Thursday, February 15. On immigration, a supermajority of 60 out of 100 senators must agree to end debate and force an up or down vote on a bill. The Chuck Grassley (R-Iowa) immigration bill, which was backed by President Trump and mirrored the White House “four pillars” immigration framework, received the least number of votes to move forward.

Dreamers and DACA Holders in Limbo

There seems to be bipartisan support for protecting “Dreamers” or young undocumented immigrants who qualify for the Deferred Action for Childhood Arrivals (DACA) program, which was introduced by the Obama Administration on June 15, 2007, and rescinded by the Trump Administration on September 5, 2017.

DACA is a temporary immigration relief for undocumented immigrants who came to the U.S. as minors before age 16, lived in the U.S. since June 15, 2007, are currently in school or have graduated from high school, have no serious criminal history, and meet other eligibility requirements.

Although DACA provides authorized stay and work authorization on a temporary basis, it does not provide a path to permanent residence or citizenship in the U.S.

When the Trump Administration announced the ending of DACA, and left it up to gridlocked Congress to address the ramifications, it set an expiration date of March 5, 2018. But with federal courts in New York and San Francisco issuing temporary injunctions on February 13 and January 9, respectively, which block the Administration’s September order rescinding the DACA program, USCIS issued a statement noting it will, for now, continue accepting requests for DACA renewals under pre-existing terms.

The end of DACA does not mean there will be mass deportations of young, undocumented immigrants. The U.S. Department of Homeland Security (DHS) has to issue a Notice to Appear and file it with the Immigration Court to initiate removal proceedings against an applicant, who may seek available relief  (e.g. asylum, cancellation of removal) from the Immigration Judge. The DHS may also set enforcement priorities so that Dreamers or DACA holders are low priorities for removal.

White House Calls for Limits on Family-Based Immigration and an End to Diversity Visa Lottery Program

In his first State of the Union address before a joint session of Congress on January 30, Trump expressed concerns with family-based immigration, which he referred to as “chain migration.”  He claimed, “under the current broken system, a single immigrant can bring in virtually unlimited numbers of distant relatives.”

He stated his immigration plan “protects the nuclear family by ending chain migration” and would “focus on the immediate family by limiting sponsorships to spouses and minor children.”

Trump also called for an end to the Diversity Visa Lottery, which he said is “a program that randomly hands out green cards without any regard for skill, merit or the safety of our people.” He previously noted in a December 15, 2017 speech, “they give us their worst people, they put them in a bin,” and “the worst of the worst” are selected in the Diversity Lottery.

Using anecdotal cases, the President has linked family-based immigration and the Diversity Visa Lottery program to terrorist attacks and threats to the national security of the United States.

In a December 11, 2017 statement, Attorney General Jeff Sessions wrote, “The President is exactly correct about the changes we need to our immigration system. We have now seen two terrorist attacks in New York City in less than two months that were carried out by people who came here as the result of our failed immigration policies that do not serve the national interest —the diversity lottery and chain migration.”

Of the two examples, the first is Sayfullo Saipov, from Uzbekistan, who entered the United States in 2010 on a diversity immigrant visa. Saipov is accused of killing eight people and injuring a dozen others when he drove a rented truck through a Manhattan, New York City bike lane in October 2017.

The second example is Akayed Ullah, a permanent resident from Bangladesh, who is suspected of carrying out a terrorist attack in New York City in December 2017. Ullah is accused of attempting to bomb a subway station with a low-tech explosive device, but only he was injured when the device failed. He came to the United States in 2011 as the minor child of a parent who was petitioned by an adult U.S. citizen sibling (in fourth preference, family sponsored category).

Family-Based Immigration, As It Stands

U.S. citizens and lawful permanent residents/green card holders may sponsor only certain relatives for immigrant visas. Except for the immediate relative category (spouses and minor children of U.S. citizens, and parents of adult U.S. citizens), there is a limited number of visas available and lengthy waiting lists (some lasting more than a decade) in family-based, preference categories.

The preference categories include unmarried sons and daughter of U.S. citizens and their minor children (if any);  spouses, minor children, and unmarried sons and daughters 21 or older of permanent residents; married sons and daughters of U.S. citizens and their spouses and minor children (if any); and siblings of adult U.S. citizens and their spouses and minor children (if any).

The beneficiary (immigrant visa/green card applicant) also must not be inadmissible to the United States based on likelihood of becoming a public charge, certain criminal offenses, immigration violations, or other grounds defined by statutory law.

For more information on the existing family-based immigration system, read Immigrant Visa Process: Delays and Setbacks; Changes to the Visa Bulletin: Understanding the Two Filing Charts; and Priority Date Recapture and Retention in Family-Based Immigration.

Current Diversity Visa Lottery Program

Contrary to Trump’s claims, countries do not choose which of their citizens to put in the Diversity Visa Lottery.  Rather, the program issues up to 50,000 diversity visas each year to qualified applicants from U.S.-designated countries with low rates of immigration to enter the U.S. as permanent residents – if they win the DV lottery and successfully complete the immigrant visa or green card process.

To be eligible, applicants must be born in an eligible country. Natives of countries with relatively high rates of immigration – such as Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam – do not qualify.

Applicants must also have at least a high school education or its equivalent (successful completion of a 12-year course of formal elementary and secondary education); or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform the job.

After being selected in the lottery, applicants must clear a background check and demonstrate they have no health problems, criminal records, national security concerns, or other inadmissibility grounds barring them from the United States.

For more information on the current Diversity Lottery program, read Diversity Immigrant Visa – November Entry Deadline (Plus Other Things to Consider.

White House “Four Pillars” Immigration Framework and Its Influence on Congress

In some respects, the White House’s immigration framework takes a harder line on legal immigration than on young, undocumented immigrants – many of whom came to the United States as children without proper travel authorization or lawful admission.

Immigration Bills in the Senate

On Wednesday, February 14,  before the Senate voted on the four immigration bills, Trump issued a statement calling on Congress to support the Grassley proposal. He wrote, “The Grassley bill accomplishes the four pillars of the White House Framework: a lasting solution on DACA, ending chain migration, cancelling the visa lottery, and securing the border through building the wall and closing legal loopholes.”  He also asked all senators to oppose any legislation that fails to fulfill these four pillars.

Each bill needed at least 60 votes to advance in the Senate. The four proposals included:

Sen. Chris Coons (D-DE) and John McCain (R-AZ) Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included no funding for Trump’s border wall, but did include measures to improve border security.

Failed 52 to 47. Democrats were almost united in favor and Republicans mostly voted against it.

Sen. Pat Toomey (R-PA) Bill: withheld federal funding for municipalities (dubbed “sanctuary cities”) that refuse to enforce federal immigration policy through their local police officers and other state law enforcement agencies.

Failed 54 to 45. Republicans and a few Democrats backed it, but most Democrats voted against it.

Sen. Susan Collins  (R-ME), endorsed by Minority Leader Chuck Shumer (D-NY), Bill: provided path to citizenship for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border security; prevented DACA recipients from sponsoring parents for legal status.

Failed 54 to 45. Democrats almost unanimously supported it, along with eight Republicans.

Sen. Charles Grassley (R-IA), based on proposal backed by White House, Bill: provided path for 1.8 million undocumented immigrants who came to the country as children; included $25 billion in funding for border wall; severely restricted legal immigration by limiting family-based immigration to spouses and minor children of U.S. citizens and ending diversity visa lottery program.

Failed 39 to 60. Democrats opposed the bill en masse, joined by a notable number of Republicans, while most of the GOP conference and a couple Democrats supported it.

Immigration Bill in the House

Immigration reform will be even harder for the more conservative House to tackle. Republican leaders are scrambling for sufficient votes on an immigration proposal in the House that is more restrictive than the Trump-backed Grassley bill in the Senate.

The immigration bill by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Homeland Security Committee Chairman Michael McCaul (R-Texas) offers a temporary, renewable legal status — rather than a path citizenship — to DACA holders in exchange for funding Trump’s border wall, cracking down on so-called sanctuary cities, requiring U.S. employers to use the E-Verify system to check the immigration status of job applicants, restricting family-based immigration, and scrapping the diversity visa lottery program.

Although Trump has expressed support for this bill, it is expected to meet its demise in the divided Senate, even if it passes through the House.

Worries Prevail With No Clear Path to Immigration Reform

If limiting family-based immigration and ending the Diversity Visa Lottery program are non-negotiable components of a White House-backed immigration plan, Congress faces steep obstacles in creating a legislative solution for Dreamers or DACA holders.

Worries prevail as the immigration fate of Dreamers and DACA holders hang in the balance, and some family-based immigration and the diversity visa lottery program are potentially on the chopping block.

In the meantime, eligible DACA holders may file renewal applications according to the latest USCIS policy, while federal court litigation ensues. U.S. citizens and permanent residents may also continue to file family-based petitions for certain relatives, and applicants from eligible countries may seek diversity immigrant visas under existing programs. Any change to U.S. immigration law is expected to apply prospectively and have no retroactive effect.

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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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5 Benefits of Having Immigration Counsel at Your In-Person Interview with USCIS

When you receive notice of your in-person interview with U.S. Citizenship & Immigration Services (USCIS), you might be tempted to attend it without counsel to save on legal fees.  Many applicants, however, end up spending more money down the line because they did not have a qualified attorney helping them deal with unexpected problems at the interview.

If you filed the application or petition on your own, you could tell yourself the wait is over and the interview is just a formality before USCIS grants the immigration benefit. If you had counsel helping you with the filing, you might decide her presence at the interview is excessive because your important questions have already been addressed.

But the advantages of having reputable, experienced counsel appear with you at the interview far outweigh the disadvantage of incurring legal fees for representation.

In-person interviews with USCIS are necessary to obtain most immigration benefits, including asylum, permanent residence (green card) and naturalization (U.S. citizenship). The interview usually occurs at the USCIS Field Office with jurisdiction over the applicant’s place of residence.

As of October 2, 2017, under the Trump Administration, USCIS began to phase-in interviews for the following:

• Employment-based adjustment of status/green card applications  (Form I-485, Application to Register Permanent Residence or Adjust Status) filed on or after March 6, 2017, in the EB-1, employment based first preference, EB-2, employment based second preference, and EB-3, employment based third preference.

• Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, except in certain situations such as when a criminal record or unlawful presence existed, applicants in these categories were not scheduled to attend an in-person interview with USCIS for their applications to be adjudicated.

USCIS plans to gradually expand interviews to other immigration benefits. It notes the change is in line with Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s  efforts to improve the detection and prevention of fraud and enhance the integrity of the immigration system.

Here are 5 main benefits of having immigration counsel at your in-person interview with USCIS:

1. Provide protection against excessive screening or vetting

The in-person interview is a screening and vetting procedure for persons seeking immigration benefits to reside or stay long-term in the United States. While USCIS officers are trained to be professional, courteous, and respectful of your legal rights, some may turn (or may seem) hostile when there is reason to believe the applicant is committing immigration fraud, is a danger to the community, or is ineligible for or undeserving of the benefit sought.

Interviews with USCIS are not supposed to be adversarial in nature. They are meant to gather complete and accurate information (both favorable and unfavorable) to properly adjudicate the case, not to find a reason to deny the requested benefit.

Nevertheless, due to expansions in immigration enforcement priorities under the Trump Administration, there are now more reports of applicants being arrested and detained by U.S. Immigration & Customs Enforcement (ICE) at their interviews  with USCIS. These cases normally involve beneficiaries attending I-130 interviews who have prior or outstanding removal orders and have remained unlawfully in the country.

Prior to the interview, the attorney can review your criminal record and immigration history to evaluate the risks of interview attendance. While attorneys have no authority to stop ICE from lawfully apprehending or detaining an applicant at the USCIS interview, they may ask critical questions to verify where the applicant will be held and the next steps in the detention and removal process. Unless there is an express agreement, however, the attorney is not obligated to represent you beyond the interview with USCIS.

In less complicated cases — such as where ICE apprehension or detention is unlikely because the only violation is a visa overstay — your having counsel at the interview is still crucial. Attorney appearance encourages the USCIS officer to remain professional and courteous and stick to relevant issues.

2. Clarify unclear questions and complex issues

At the in-person interview, the USCIS officer may ask for any information related to questions on the application forms, your eligibility for the benefit sought, your marital history, your manner of entry into the U.S., your admissibility to the U.S. (such as any arrests, charges or convictions, or misrepresentations made to an immigration official), your educational background, and your past and present employment (including the documents you used to obtain a job in the United States).

When a USCIS officer asks a vague or unclear question, the attorney may request clarification to ensure the applicant understands what is being asked. If the attorney knows the answer is factually or legally incorrect, she may also ask the officer to rephrase the question or point to objective records in the file to show the applicant is mistaken.

3. Help prevent unnecessary delays and complications

USCIS stated the new interview requirement, which became effective on October 2, 2017,  will amount to approximately 17% of the agency’s total workload. Thus, longer processing times and increased delays in all adjudications , especially interview-based applications, are expected.  These days, USCIS is taking one year or more to adjudicate green card and naturalization applications, as opposed to six to nine months in the past.

At the interview, you should strive to present all the necessary information and requested documents to facilitate approval. Otherwise, it may take several weeks or months for USCIS to issue a Request for Evidence or Notice of Intent to Deny, to which you must respond within a specified time frame (e.g. 87 days and 30 days, respectively.)

Your attorney can help you figure out what you need to bring to the interview, based on the instructions in the interview notice and the unique facts of your case. The attorney is also better equipped to evaluate whether a favorable decision or adverse notice is expected, depending on what occurred at the interview, and prepare you for next steps following the interview.

4. Serve as an advocate

Unlike in court hearings before a judge, interviews with USCIS do not involve your attorney asking you direct questions to solicit testimony. The USCIS officer asks the questions and  you provide the answers.

Questions on issues that may seem inappropriate or unimportant to you might be relevant to your eligibility for the immigration benefit and be in line with USCIS policy. Having counsel at the interview helps you determine when it’s better to answer, ask for clarification, or object (for good cause).

Your attorney cannot respond to questions the USCIS officer directs to you. She also may not coach you on how to lie about facts or hide information that is requested. But she may advise you on legal issues or raise objections to inappropriate questions or, as a last resort, ask to speak with a supervisor (particularly if the interview becomes argumentative or antagonistic).

Having an attorney present at the interview helps to protect and advocate your legal rights. If USCIS instructs you to provide a sworn, written statement on controversial points, the attorney can verify that you understand what you are providing and signing.

Counsel can further help you avoid misrepresenting material facts to the USCIS officer and explain unfavorable information to defuse a difficult situation. They advise you on pitfalls and weaknesses in your case that will likely be at issue in the interview. They determine when and how to best present testimony and documentary evidence to highlight positive factors and offset negative factors in your case.

It is rare for interviews to be  video-recorded. Without counsel, it will just be the USCIS officer and you (and possibly your interpreter) in the interview room. The officer will takes notes for the file, but you typically will not have access to them unless you submit a Freedom of Information/Privacy Act Request, which normally takes several months to process. Moreover, in the FOIA response, the agency may redact, or black out, any information protected by one of the nine FOIA exemptions to prevent certain harms, such as an invasion of privacy, or harm to law enforcement investigations.

An attentive attorney at the interview will carefully observe the discussion and take informative notes on questions asked and answers given. If USCIS issues a Notice of Intent to Deny or other adverse notice based on purported discrepancies and inconsistencies at the interview, an attorney may provide a credible explanation on what was said in the interview and how it was conducted. It won’t just be your word against the allegations of the interviewing officer.

5. Add credibility to your claim

Having an attorney present does not mean you have something to hide. On the contrary, many USCIS officers prefer applicants to bring counsel to the interview for it to run more smoothly and effectively.

In addition, because attorneys have a duty of candor to the tribunal, their presence generally adds credibility to your claims.  An attorney cannot knowingly present false information or false documents or perpetuate fraudulent claims without running afoul of the professional responsibility rules.

The attorney can help prepare you for interview by describing what questions to expect and which issues are likely to arise, and how to best address them. They can further prepare and submit a legal memorandum to stave off concerns and persuade the officer to approve your case.

Conclusion: Bring Counsel to the Interview

There are many applicants who attend their interviews without counsel and get their applications or petitions approved. But these cases are usually very well-documented with positive information and no adverse factors to consider. The applicant also has to be very fortunate having a relatively short interview where no problems arose. It is hard to know how exactly your interview will go.

Many things can go wrong at the interview with USCIS, which may lead to severe consequences including denial decisions and even a Notice to Appear in removal proceedings before an Immigration Court.

For example, the USCIS officer may conduct separate interviews of the U.S. citizen (I-130 petitioner) and his foreign national spouse (I-485 applicant) and determine they entered into a sham marriage for immigration purposes. The officer may review the entire immigration history and/or criminal record of a naturalization applicant and find that he is not only ineligible for citizenship, but is subject to removal from the United States.

Even if you prepared and filed the application or petition with USCIS on your own, or with the help of an immigration consultant or online immigration service, you may have counsel enter her appearance at the interview by submitting a Form G-28, Notice of Entry of Appearance as Attorney, to the USCIS officer.  Once the G-28 is accepted, the appearance will be recognized until the matter is concluded (absent a withdrawal of representation).

It’s best to secure counsel for the interview at least two weeks in advance to avoid scheduling conflicts and lack of preparation.

In some cases, the interview goes so well that having counsel seems to be an added expense with no benefit. But more than likely, counsel’s presence at the interview contributes to the successful outcome, even though you might not be able to measure the effects. And when the stakes are high, it’s better to be over-prepared than under-prepared and to err on the side of caution by having counsel at the interview.

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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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Photo by: johnhain

B-2 Visitor Visa: Traveling to the U.S. for Tourism or a Temporary Visit

When you seek to enter the U.S. for tourism or a temporary visit, the B-2 visa or combined B-1/B-2 visa is appropriate. Only certain activities are allowed on this visa. The U.S. consular officer will not grant the B-2 visa and the U.S. customs officer will deny your entry on this visa if your reasons for travel do not fit the criteria.

WHICH ACTIVITIES ARE ALLOWED ON THE B-2 VISA? 

Legitimate B-2 visitor activities are described below. The list is not exhaustive, but is specified in the Department of State’s Foreign Affairs Manual and other official guidance as appropriate reasons for the consular officer to issue the B-2 visa.

Visitor for Pleasure

You may use the B-2 visitor visa to:

  • Engage in tourism, i.e. take a vacation (holiday) and visit places of interest
  • Make social visits to family members and friends
  • Receive medical treatment to protect your health (NOTE: the consular officer or customs officer must be satisfied you have the means to pay for the treatment, which includes doctors and hospitalization fees and related expenses.)
  • Participate in social events hosted by fraternal, social, or service organizations
  • Participate in entertainment or athletic activity (e.g. event or contest) as an amateur who is not a member of any profession associated with the activity, but instead normally performs without compensation (except for reimbursement of incidental expenses)
  • Take a short course of study, which is incidental to the visit and not for credit toward a degree
  • Temporarily stay as dependent of alien member of any branch of the U.S. Armed Forces temporarily assigned for duty in the U.S.
  • Temporarily stay as dependent of D visa crewman if you are coming to the U.S. solely to accompany the principal D visa holder

Visitor Under Special Circumstances

You may also receive the B-2 visitor visa under the following special circumstances:

Fiancé(e) of U.S. Citizen or Permanent Resident

Foreign nationals must obtain a K-1 fiancé(e), instead of the B-2 visa, if they seek to come to the U.S. to marry a U.S. citizen and apply for adjustment to permanent resident status (green card).  The U.S. Consulate, however, may grant the fiancé(e) of a U.S. citizen or lawful permanent resident (LPR) a B-2 visa if it determines the fiancé(e) will return to a residence abroad soon after the marriage.

B-2 status may also be granted if you are traveling to the U.S. to:

  • Meet the family of your U.S. citizen or permanent resident fiancé(e);
  • Become engaged;
  • Plan the wedding; or
  • Rekindle or maintain a relationship with your prospective spouse

In reality, however, B-2 visas are not routinely granted in this situation. The Consulate tends to find that fiancé(e)s of U.S. citizens (in particular) or permanent residents (in some cases) will simply overstay until they can eventually get a marriage-based green card within the U.S. Therefore, it’s necessary to present strong evidence and persuasive testimony showing you will in fact depart on time, following a temporary visit, before you proceed with the K-1 or immigrant visa process.

Fiancé(e) of Nonimmigrant in United States

Fiancé(e)s who have a residence abroad to which they intend to return, and who are eligible to receive visas, may receive B-2 visas if the purpose of the visit is to marry a nonimmigrant in the United States, who has valid nonimmigrant F, H, J, L M, O, P, or Q status.  The U.S. Consulate will not grant the visa if it determines you will remain in the U.S. after admission and apply to adjust to permanent resident status, or request a change to a non-immigrant status that does not require a residence abroad.

Proxy Marriage Spouse of Nonimmigrant in United States

A spouse married by proxy to a foreign national in the United States in valid nonimmigrant status may receive a B-2 visa to join the spouse.  Following entry to the U.S., the joining spouse must file a timely request to change to the appropriate derivative nonimmigrant status (e.g. H-4 or F-2) after the marriage is consummated.

Spouse or Child of U.S. Citizen or Permanent Resident

A foreign national spouse, biological child, or adopted child of a U.S. citizen or permanent resident may be issued a B-2 visa if he or she is only accompanying or following to join the spouse or parent for a temporary visit.

Cohabitating Partners, Extended Family Members, and Other Household Members Who Do Not Qualify for Derivative Status

 The B-2 visa is issued to those who belong to the same household of another person in long-term nonimmigrant status, but who are ineligible for derivative status. These include cohabitating partners or elderly parents of temporary workers, students, diplomats assigned to the U.S. and accompanying parent(s) of minor F-1 student. It is also appropriate for persons who belong to the same household of a U.S. citizen who normally lives and works overseas, but will be in the U.S. temporarily.

The B-2 visa is also granted to a spouse or child who qualifies for derivative status (other than derivative A or G status) but who finds it difficult or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa, as long as he or she intends to maintain a residence outside the U.S. and is eligible for the B visa. Those who plan to remain in the U.S. for more than six months may request a one-year stay when they apply for admission at the U.S. port of entry.  They may then apply for extensions of stay, in six -months increments, while the principal applicant holds nonimmigrant status in the U.S.

Foreign Nationals Seeking Naturalization under INA 329 (Naturalization Through Active Duty-Service in the Armed Forces During World War I, World War II, the Korean Hostilities, or in Other Periods of Military Hostilities) 

A person who qualifies for naturalization under INA 329, and who seeks to enter the U.S. to make use of this benefit, may receive a B-2 visa without being required to maintain a foreign residence.

Children Seeking Expeditious Naturalization under INA 322 (Children of U.S. citizens who are born and residing outside the U.S. and meet the conditions to acquire certificate of citizenship)

The U.S. Consulate may grant a B-2 visa to a foreign-born child who is eligible for expeditious naturalization under INA 322.  But even when the child intends to naturalize, he or she must intend to return to a residence abroad after naturalization, i.e. overcome the presumption of immigrant intent.  The child whose parents are living abroad will normally meet this requirement, but a child whose parents reside in the U.S. will not.

The U.S. Consulate may also issue a B-2 visa to an adopted foreign-born child of a U.S. citizen who seeks to naturalize under INA 322 if he or she presents a DHS-issued Form G-56, General Call-In letter for a naturalization interview; maintains a residence abroad and does not intend to stay permanently in the U.S,; and meets other eligibility requirements.

Dependents of Alien Members of U.S. Armed Forces Eligible for Naturalization under INA 328 (Naturalization Through Service in the U.S. Armed Forces) 

A dependent of an alien member of the U.S. Armed Forces who qualifies for naturalization under INA 328 and who seeks to accompany the spouse or parent on the service member’s assignment to the U.S. may be issued a B visa. The possibility of adjustment to permanent resident status does not require a visa denial.

Foreign Nationals Enrolled in an Avocational or Recreational School

A person may receive a B-2 visa to attend a school for recreational or avocational purposes.  When the U.S. Consulate is unable to determine the nature of the school’s program, it normally asks DHS to confirm whether approval of Form I-20, Certificate of Eligibility for Nonimmigrant (F-1) Student Status for Academic and Language Students (for an F-1 student visa) is required.

Lawful Permanent Residents Who Need to Come to the U.S. for an Emergency Temporary Visit 

 The I-551, Permanent Resident Card, becomes invalid for re-entry if the lawful permanent resident (LPR) remains outside the U.S. for more than one year. If the LPR needs to return to the U.S. sooner than when a returning resident visa can be obtained, the U.S. Consulate may issue a B-2 visa for re-entry purposes.

Adoptive Child Traveling to the U.S. to Acquire Citizenship foreign-born children who did not acquire U.S. citizenship at birth through a U.S. citizen parent to acquire U.S. citizenship automatically upon fulfillment of certain conditions while under the age of 18.

The U.S. Consulate may grant a B-2 visa to a child seeking to enter the U.S. to acquire U.S. citizenship under the Child Citizenship Act of 2000 (Public Law 106-395), as long as the child shows an intent to leave the U.S. after a temporary stay.

WHO IS ELIGIBLE FOR THE B-2 VISA? 

Temporary visitors must meet the following eligibility requirements:

1. Maintain a residence in a foreign country, which you do not intend to abandon

Under U.S. immigration law, the term “residence” is defined as the place of general abode, i.e. your principal, actual dwelling place in fact, without regard to intent. You must show strong ties to your country, including family connections, property ownership, investments, and steady employment. If the U.S. Consulate has doubts about your intent, you may offer to leave a child, spouse, or other dependent abroad.

2. Intend to stay in the U.S. for a specific, limited period

The period of stay must be limited and not indefinite in nature. The expected length of stay must match the stated purpose of the trip. You must show with reasonable certainty that you will leave the U.S. upon completing your visit, prior to expiration of the authorized stay.

3. Seek entry solely to engage in legitimate activities permitted by the visa

You must be coming to the U.S. only to complete activities that are allowed by your visa classification. U.S. consular officers will deny the visa and U.S. customs officers will deny your entry if they have reason to believe or know that, while in the U.S. as a visitor, you will engage in unlawful or criminal activities.

You must have the funds and make arrangements to cover the cost of the trip and your stay in the U.S. Otherwise, the U.S. consular officer or customs officer will likely conclude that you will work in the U.S. without authorization to defray expenses. You could even be issued an expedited removal order at the U.S. port of entry if the customs officer determines you have previously violated your B-visa status or intend to do so.

4. Have no immigration violations or criminal offenses that make you inadmissible, or otherwise qualify for an inadmissibility waiver 

You will not receive the visa or be admitted if you are barred from entering the U.S. due to immigration violations or criminal offenses that make you inadmissible under U.S. immigration law. These include the 3/10 year bar due to accrual of unlawful presence of more than 180 days during a prior stay; conviction for a Crime Involving Moral Turpitude (e.g. theft or fraud) that does not qualify for the petty offense or youthful offender exception; and willful misrepresentation of material facts to gain entry into the U.S.

When you are inadmissible, but are otherwise visa eligible, you may file a 212(d)(3) nonimmigrant waiver to be excused from almost all inadmissibility grounds. . A separate I-212 waiver (Permission to Reapply for Admission into the United States After Deportation or Removal) is needed if you are barred due to a prior removal order or illegal (or attempted illegal) reentry into the U.S.

B-2 IS DIFFERENT FROM B-1

The B-2 is under the same B-visa classification as the B-1 Temporary Business Visitor visa, but is more limited. If you have only a B-2 visa – and not a B-1 visa or combined B-1/B-2 visa, you may not engage in any business visitor activities, such as attend business meetings or negotiate contracts.

WORK WITH AN IMMIGRATION ATTORNEY

Failure to overcome the presumption of immigrant intent and show strong ties abroad is one of the top reasons for a visa refusal or denial. Inadmissibility grounds can also prevent a visa grant or your entry into the U.S.

Consult an experienced immigration attorney to assess your visa eligibility, advise you on the forms and documents to submit, and assist you with the application process to get the B-2 or combined B-1/B-2 visa.

For more information, read our related articles, B-1 Visitor Visa: Traveling to the U.S. for Business and B-1 Visitor Visa: Traveling to the U.S. for Work as a Personal/Domestic Employee.

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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Photo by: Richard Burger