Category Archives: nonimmigrant visa

2019 Public Charge Rule: 3 Key Changes Set to Take Effect on October 15

On August 14, the U.S. Department of Homeland Security (DHS) published the Final Rule on the public charge inadmissibility ground, which amends the regulations for section 212(a)(4) of the Immigration & Nationality Act (INA).

Highly controversial and several months in the making, the Final Rule gives U.S. Citizenship & Immigration Services (USCIS) more discretionary power to deny Form I-485, green card requests, and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground.

The new rule is set to take effect on October 15, 2019, i.e. 60 days after its publication. It will affect applications filed (received by the agency) or postmarked on or after that date.  The U.S. Department of State (DOS) is expected to further revise the Foreign Affairs Manual (FAM) to incorporate DHS’ new public charge rule. 

[UPDATE: On October 11, 2019, federal judges in three separate cases enjoined USCIS from implementing and enforcing the new public charge rule and postponed the effective date of the Final Rule until there is final resolution in the cases. Two of the injunctions are nationwide and prevent USCIS from implementing the rule anywhere in the United States. Until final decisions in these cases are issued or the injunction is lifted, USCIS will continue to apply the existing rule.]


Public Charge Inadmissibility Ground Under Section 212(a)(4)

The long-existing section 212(a)(4)(A) makes a person inadmissible to the U.S. if he or she is “likely at any time to become a public charge.”  Whether a person is barred from the U.S. on public charge ground depends on the totality of the circumstances.

Section 212(a)(4)(B) of the INA instructs USCIS and U.S. consular officers to consider the following factors:

  • Age
  • Health
  • Family status
  • Assets; resources; and financial status
  • Education and skills

The Form I-864, Affidavit of Support, from the petitioner (sponsor) or joint sponsor is also an important factor to consider in certain immigrant visa or green card cases.

The statute does not define “public charge.” But since 1999, USCIS and DOS guidelines have defined it to mean a person who is or is likely to become “primarily dependent” on the U.S. government for subsistence, as shown by the receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.”

The 2019 Final Rule involves a new definition of public charge and includes 3 key changes:

1) Expands the range of public benefits that may be considered when determining whether applicants who have received or are currently receiving benefits are inadmissible on public charge ground.

Under the Final Rule, public benefits are no longer limited to mean cash assistance programs, such as Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance. The term “public benefit” has expanded to include previously excluded programs, such as:

  • Federally funded Medicaid (with certain exclusions, e.g. receipt of Medicaid for emergency care; services funded by Medicaid but provided under the Individuals with Disabilities Education Act; school-based services provided to persons who are at or below the oldest age eligible for secondary education as defined by state or local law; Medicaid benefits received by a person under age 21; and Medicaid benefits received by pregnant women and women for up to 60 days after giving birth.)   
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program 
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) 
  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.

2) Creates a single duration-based threshold for the receipt of public benefits as part of the definition of public charge.

The Final Rule notes that an applicant is a public charge if he or she receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. USCIS notes, for example, the receipt of two benefits in one month counts as two months.

The rule applies not only to green card or immigrant visa applicants. It also requires applicants seeking a change or extension of nonimmigrant status to show they have not (since initially obtaining the status) received public benefits for more than 12 months in total in any 36-month period.

Any duration (and amount) of public benefits received may be considered in the totality of the circumstances test.  Adjudications officers will only consider benefits received by the applicants and will not take into account benefits used by their children or other family members.

3) Defines “heavily weighted positive factors” that reduce the likelihood of becoming a public charge and “heavily weighted negative factors” that increase the likelihood of becoming a public charge. 

Among the heavily weighted negative factors is having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension.

Other negative factors include being younger or older than working age; having a health condition that is likely to require extensive treatment and lacking private health insurance or the means to pay medical costs; having limited income or resources; not being employed, a full-time student or a primary caregiver; previously found inadmissible on public charge grounds; and using or previously using public benefit programs.

Heavily weighted positive factors include the applicant’s household has financial assets or resources of at least 250% of the federal poverty level, or the applicant earns an income of at least 250% of the federal poverty level for the household size.

Other positive factors are the applicant is authorized to work, is gainfully employed, and has private health insurance that is not subsidized by the Patient Protection and Affordable Care Act.

The shift toward the weighing of positive factors and negative factors means the Form I-864, Affidavit of Support, can no longer be relied on as sufficient proof – by itself – to demonstrate the applicant would not become a public charge in immigration cases that require the Affidavit of Support.

Introduction of Form I-944, Declaration of Self-Sufficiency

USCIS introduced the new Form I-944, Declaration of Self-Sufficiency, which collects information on the applicant’s family status; assets, resources and financial resources; and education and skills. More information is in the Form I-944 instructions. Both are currently in draft format and not yet published for use.

When the Final Rule goes into effect, it is expected that Form I-485 adjustment of status/green card applicants will need to submit a completed Form I-944 with supporting documents. Applicants requesting a change or extension of status through a Form I-129 or Form I-539 may also have to file a completed Form I-944 if USCIS elects to require one in a Request for Evidence.

Posting of Public Charge Bonds

Section 213 of the INA provides for the posting of a public charge bond in cases where applicants need to demonstrate they will not become a public charge. The Final Rule states that applicants who are initially found likely to become a public charge by the USCIS may be offered the opportunity to post a public charge bond of at least $8,100.

The bond may be terminated only upon the immigrant’s death, permanent departure from the United States, five years as a lawful permanent resident, or naturalization. The bond will be breached if the immigrant receives public benefits for more than 12 months in total within any 36-month period.

Statutory Exemptions Still Apply

Congress exempted certain classes of immigrants from the public charge inadmissibility ground. The Final Rule includes provisions recognizing the classes of individuals who are exempt, e.g. refugees, asylees, widow(er)s of U.S. citizens, VAWA self-petitioners, and Afghans and Iraqis with special immigrant visas.

2019 Final Rule Will Add Complexities

The public charge inadmissibility ground applies to persons requesting admission to the United States as an immigrant or nonimmigrant. It does not apply to permanent residents filing for naturalization (Form N-400) or to conditional permanent residents applying to remove the conditions on their residence (Form I-751).

When possible, persons who are seeking to adjust to permanent resident status or extend or change status should file their applications before the new public charge rule goes into effect.

Applications that are filed (received by the agency) or postmarked on or after October 15 will be subject to the Final Rule, which gives adjudications officers broader discretionary power in determining whether a person is inadmissible on the public charge ground.

The new procedures under the Final Rule are likely to increase processing times, create confusion over eligibility and filing requirements, and add complexities in applications, especially during the initial stages of implementation. 

###

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.

SUBSCRIBE           CONTACT

Photo by: QuinceMedia


Lifting of INA 212(a)(2)(A)(i)(I)(Crime-Related/CIMT) Bar + J-1 Visa Approval = A True Success Story

Within 16 days of my client’s visa interview, the U.S. Embassy granted him a J-1 exchange visitor visa after it had denied his prior application under INA 212(a)(2)(A)(i)(I)(crime-related bar). In the previous visa refusal, the Embassy found him to be permanently inadmissible because he was charged with two offenses, forgery and larceny, which are normally considered Crimes Involving Moral Turpitude (CIMT).

Based on the Motion to Reconsider and Rescind Inadmissibility Determination that I prepared for the client, the Embassy lifted the lifetime bar and issued the visa without requiring a 212(d)(3) waiver of inadmissibility.

Under INA 212(a)(2)(A)(i)(I), any non-U.S. citizen convicted of, or who admits committing acts that constitute the elements of a crime involving moral turpitude (other than a purely political offense), is inadmissible.  For the CIMT bar to apply, an actual conviction is not required when the person explicitly admits to committing all elements of the offense, under oath, including to a U.S. consular officer or customs officer during an interview.

A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent. Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

The petty offense exception applies only if the person committed just one CIMT ever, the CIMT has a potential sentence of one year or less, and a sentence of six months or less was imposed (if the person was convicted of the offense).

The client contacted me to evaluate his problem and recommend a solution after he had been denied the J-1 visa due to crime-related grounds. During the consultation, I learned that while he had been arrested and charged with two offenses (forgery and larceny) for one single incident, he was not convicted of either.

The police report, however, contained the client’s written Voluntary Statement admitting he had made a photocopy of his metro-train pass and presented the fake ticket to the train conductor to save money when he was low on cash. Meanwhile, he gave his real train pass to his travel companion to use.

In the legal memorandum supporting the Motion to Reconsider and Rescind Inadmissibility Finding, I emphasized that my client was never convicted of forgery or larceny. The charges were dismissed after he was placed in an alternative rehabilitation program, which did not require him to enter a guilty plea. I also argued that his Voluntary Statement in the police report did not amount to a legally valid admission to committing a CIMT. Thus, the Embassy’s crime-related inadmissibility finding was made in error.

Although my client qualified for the 212(d)(3) nonimmigrant waiver of inadmissibility, the U.S. Customs & Border Protection, Admissibility Review Office normally takes several months to process these requests – even after the Embassy makes a favorable recommendation. The waiver is also valid for a limited period (currently, up to 60 months).

Furthermore, the crime-related bar would remain if left unchallenged. If he were to seek permanent residence in the future, he would require a Form I-601/INA 212(i) immigrant waiver as long as the crime-related bar existed. This immigrant waiver of inadmissibility has much stricter eligibility criteria and higher evidentiary standards.

My client agreed that the Motion to Reconsider and Rescind Inadmissibility Determination was the primary solution and the 212(d)(3) waiver was the alternative remedy. Within one month of accepting his request for representation, I prepared the Motion with a legal memorandum and documentary evidence demonstrating the CIMT bar did not apply or,  at the very least, the 212(d)(3) waiver should be granted.

When my client appeared for his visa interview, the consular officer refused to accept the legal memorandum and accompanying exhibits. Instead, she took only two documents showing the charges had been dismissed. The problem was the Embassy had the same or similar information when it denied the prior J-1 visa application. My client was worried the Embassy would deny the new visa request because it had received no new information since the last denial.

To fully explain the situation, I forwarded the legal memorandum and exhibits to the Embassy in a follow-up email correspondence. I pointed out that my client has no criminal convictions, did not enter any guilty plea, and did not make any legally valid admissions to committing a  CIMT. I also noted that even if his Voluntary Statement to the police counted as a formal admission (which was not the case), the most he admitted to was forgery (not larceny) and he would thus, at a minimum, qualify for the petty offense exception to the CIMT bar. 

Eleven (11) days after I submitted the follow-up correspondence, including the legal memorandum and exhibits, to the Embassy, the J-1 visa was issued to my client. This allowed him to return to the U.S. and timely begin his J-1 exchange visitor program.

While my client was stuck overseas, waiting for his J-1 visa problem to be fixed, he and his wife communicated with me through emails and video calls.  Despite being in separate countries, we formed a strong attorney-client relationship and effective partnership that resulted in a true success story.

Cheers,

Dyan Williams

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

###

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.

SUBSCRIBE           CONTACT

Photo by: Free-Photos

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

Starting on August 9, 2018, U.S. Citizenship & Immigration Services (USCIS) and the U.S. Department of State (U.S. Consulates and Embassies) began applying a stricter policy to calculate unlawful presence for F students, M vocational students and J exchange visitors in the United States.  The policy makes nonimmigrant students and exchange visitors (as well as their dependents) who fall out of status more likely to face the 3/10 year-bar to re-entry under INA 212(a)(9)(B), following departure from the U.S. It also makes them more vulnerable to the permanent bar under INA 212(a)(9)(C), caused by illegal re-entry or attempted illegal re-entry following accrual of unlawful presence of more than one year.

The August 2018 USCIS policy and DOS Policy state that F, M and J nonimmigrant visa holders begin to accrue  “unlawful presence”  the day after they violate the terms of their status.

With this policy change, it is no longer required that students and exchange visitors — who are admitted to the U.S. for duration of status (D/S) — be given notice of the status violation by USCIS or an Immigration Judge in order for unlawful presence to begin.  The removal of this procedural safeguard creates harsher penalties to nonimmigrants who fall out of F, M or J status, even when the violation is accidental, inadvertent, or due to extraordinary circumstances beyond their control.

What is the 3/10-Year Bar Under INA 212(a)(9)(B)(i)? 

3-Year Bar

Section 212(a)(9)(B)(i)(I) of the Immigration & Nationality Act (INA) states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. prior to commencement of removal proceedings.  The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

The 3-year bar does not apply if you depart the U.S. after the Notice to Appear in removal proceedings is filed with the immigration court, following service of the NTA on you. But leaving the U.S. while you are in removal proceedings or being issued a removal order carries other immigration consequences.

10-Year Bar

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

There are certain exceptions to the unlawful presence rules. For example, any period of unlawful presence prior to April 1, 1997 – the date the law went into effect – does not count toward the 3 year/10 year bars. Furthermore,  a minor who is unlawfully present does not accrue any time toward the 3 or 10 year bar until he turns 18.

What is the Permanent Bar Under INA 212(a)(9)(C)(i)? 

Section 212(a)(9)(C)(i)(I) of the INA inflicts a permanent bar if you illegally enter or attempt to illegally enter the U.S. following accrual of more than 1 year of unlawful presence on or after April 1, 1997.

The accrual of unlawful presence is cumulative. For example, if you were unlawfully present for 6 months in 3 different periods (i.e. 18 months total), and you then re-enter the U.S. illegally, you face the permanent bar.

Unlike with the 3/10-year bar under INA 212(a)(9)(B), there are no exceptions for minors when it comes to the permanent bar. So if you were under 18 when you came to the U.S., you accrued unlawful presence of more than 1 year, you left, and then returned to the U.S. without inspection, you face the permanent bar.

What is Unlawful Presence? 

The term “unlawful presence” is defined in section 212(a)(9)(B)(ii) of the INA. It refers to a person who “is present in the United States after expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

To accommodate unexpected changes in academic programs and plans, the U.S. government normally admits F, M, and J nonimmigrants for duration of status (D/S) instead of up to a specific date.  This means nonimmigrant students and exchange visitors may remain in the U.S. as long as they maintain their status, i.e. have a full course of study or remain in the exchange program, avoid unauthorized employment or other unauthorized activities, and timely complete their academic or exchange program or obtain an extension.

What are the Effects of the Unlawful Presence Policy Change? 

Until the policy change went into effect, USCIS and the DOS interpreted the law to require notice of a status violation to persons admitted for D/S in order for unlawful presence to begin.  A formal finding of a status violation is made by USCIS, an Immigration Judge, or the Board of Immigration Appeals in the context of an application for an immigration benefit (e.g. change of status or extension of status request) or in removal proceedings, whichever is earlier.

A prior USCIS May 6, 2009 memorandum stressed “the accrual of unlawful presence neither begins on the date that a status violation occurs, nor on the day on which removal proceedings are initiated.” The memo noted,”…it is important to comprehend the difference between being in an unlawful immigration status and the accrual of unlawful presence (‘period of stay not authorized’). Although these concepts are related (one must be present in an  unlawful status in order to accrue unlawful presence), they are not the same.” 

With the policy change, USCIS no longer distinguishes between falling out of status (including minor and technical violations) and accruing unlawful presence. Rather than considering unlawful presence to begin accruing the day it denies an application or petition for immigration benefits, USCIS will now find that unlawful presence began retroactive to the date it determines a status violation occurred.  The DOS updated its Foreign Affairs Manual to incorporate this policy change and guide consular officers in determining whether the unlawful presence bar applies. 

Under the new policy, “unlawful presence” will begin the day after a status violation occurs, even if the person has no idea that s/he has fallen out of status. Examples include accidentally engaging in unauthorized employment; relying on erroneous advice by a Designated School Official (DSO) regarding reduced course load; and missing work for 90 days or more due to a serious injury while on Optional Practical Training (OPT).

USCIS will apply the policy retroactively; nonimmigrant students and exchange visitors who are found to have violated their status before the new policy took effect will also begin to accrue unlawful presence as of August 9, 2018.

F, M or J nonimmigrants who failed to maintain status before August 9, 2018, start accruing unlawful presence based on that failure on August 9, unless they already started accruing unlawful presence on the earliest of the following:

  • The day after USCIS denied the request for an immigration benefit, if USCIS made a formal finding that they violated their nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after the Form I-94, Arrival/Departure Record, expired, if the F, M or J nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge ordered them excluded, deported or removed (whether or not the decision is on appeal).

F, M or J nonimmigrants who failed to maintain status on or after August 9, 2018, start accruing unlawful presence on the earliest of the following: 

  • The day after the F, M or J nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period)
  • The day after the Form I-94 expires, if the F, M or J nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders them excluded, deported or removed (whether or not the decision is on appeal)

When determining whether an F, M or J nonimmigrant accrued unlawful presence and was no longer in authorized stay, USCIS will consider information related to the person’s immigration history, such as:

  • information in the systems available to USCIS
  • information in the person’s record, including the person’s admissions concerning his immigration history or other information discovered during adjudication of an application or petition
  • information obtained through a Request for Evidence or Notice of Intent to Deny, if any

Conclusion

USCIS’ unlawful presence policy change, in combination with its updated guidance on Notices to Appear and Requests for  Evidence, will have dire consequences for nonimmigrant students and exchange visitors, as well as their dependents.

While there is a 212(d)(3) nonimmigrant waiver and a Form I-601/INA 212(a)(9)(B)(v) immigrant waiver for the 3/10 year unlawful presence bar, they come with certain eligibility standards and they are not granted in every case. There are also limitations to obtaining a Consent to Reapply (I-212 waiver) to be excused from the permanent bar under INA 212(a)(9)(C).

New policies are not as binding as changes in the law passed by Congress, or regulations issued through notice-and-comment rulemaking. Still, unless the policy change is rescinded or is struck down by federal courts, it reflects how USCIS and the DOS will calculate unlawful presence for F-1, M-1 and J-1 nonimmigrants and their dependents (F-2, M-2 and J-2) as of August 9.

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)

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

###

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.

SUBSCRIBE           CONTACT

Photo by: nikolayhg

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

###

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.

SUBSCRIBE           CONTACT

Photo by: qimono

Birth Tourism, Frequent/Extended Trips, Immigration Status Change: 3 Things That Often Prevent Entry to the U.S. (even though they are not strictly prohibited)

If you had a baby in the United States, made frequent/extended trips to the country, or applied for a change in immigration status during a prior stay as a visitor, you may be stopped from entering the U.S., even though these activities are not strictly prohibited.

This problem arises especially when the U.S. Consulate or U.S. Customs & Border Protection determines you misrepresented the purpose of your visit when you applied for the B-1/B-2 visitor visa and used it or the Visa Waiver Program (VWP) to enter the United States.

Section 214(b) of the Immigration & Nationality Act presumes that most nonimmigrant visa applicants intend to immigrate permanently to the United States. Only certain categories, such as the H-1B  (professional worker) and L-1A/L-1B (intracompany transferee), allow dual intent (i.e. intent to immigrate in the future while maintaining temporary status in the present). Otherwise, nonimmigrant visa applicants must show they have no intent to immigrate and simply seek a temporary stay in the U.S.

When you engage in any of the following 3 activities, you could have problems getting a new visa or gaining re-entry to the U.S. for a temporary stay, although each one, by itself, does not violate U.S. immigration law or make you inadmissible to the United States:

1. Traveling to the United States to have a baby (“Birth Tourism”)

Traveling to the United States on a visitor visa for the purpose of giving birth to a child is commonly known as Birth Tourism.  Under the 14th Amendment of the U.S. Constitution, birth in the United States gives the child automatic citizenship with all its rights and privileges.

Furthermore, birth citizenship provides the  foreign national parent with potential immigration relief. For example, upon turning age 21, a U.S. citizen son or daughter may file an immigrant petition for a parent in the immediate relatives category, which has no numerical limits on immigrant visas available.  A parent who overstays in the United States and is placed in removal proceedings may qualify for Cancellation of Removal and Adjustment of Status (to permanent residence) if she has been continuously present in the United States for at least 10 years, has not been convicted of certain offenses, has good moral character, and her removal would result in exceptional and extremely unusual hardship to her U.S. citizen child.

There is no specific law, regulation or policy prohibiting birth tourism per se or preventing a pregnant woman from entering the United States. Nonetheless, U.S. consular officers and customs officers often view it as a misuse of the visitor visa status and a gaming of the immigration system to give the child automatic citizenship.

If the officer sees you are pregnant at the time of applying for a tourist visa or requesting admission as a visitor, he may refuse the visa or deny your entry. This is why birth tourists who hail from various countries such as China, Taiwan, South Korea, Russia, Brazil and Mexico, typically come to the United States when their pregnancy is not so obvious.

Even if you succeed in gaining a visitor visa or entering the United States as a visitor to give birth, you might still encounter problems in the future when you apply for a new visa or admission as a nonimmigrant.

The U.S. Consulate has sole discretion to make a factual determination on whether you have strong ties to your country to overcome the presumption of immigrant intent under INA 214(b).

A consular officer may deny your request for a B-1/B-2 visitor visa or other non-dual intent visa under INA 214(b) by finding you intend to immigrate due to your having a U.S. citizen son or daughter, or based on mere suspicion that you will use a new visa to give birth in the U.S. again. Some consular officers also consider giving birth as inconsistent with the true purpose of a B-1/B-2 visit, which is primarily for business travel and recreation.

A non-resident parent who travels with a U.S. citizen child may face tougher scrutiny at the U.S. port of entry. A customs officer who discovers you had a child during a prior visit in the U.S.  may deny your request for admission on a temporary visa and even issue an expedited removal order under INA 212(a)(7)(lack of proper visa or other travel documents), which carries a five-year bar. To be excused from this five-year bar to being admitted to the United States, you need an approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

In some cases, a consular officer or customs officer may issue a more serious charge under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain a visa or entry to the United States), which is a lifetime bar. When such an inadmissibility finding is made by the U.S. Consulate or CBP, you may appeal directly to the agency to reconsider and rescind the decision on the basis that giving birth in the U.S., by itself, does not make you inadmissible. But as long as the section 212(a)(6)(C)(i) bar holds, you will need a 212(d)(3) nonimmigrant waiver or a Form I-601/212(i) immigrant waiver to be admitted to the United States.

Because a visitor visa may be used for medical treatment, your showing that giving birth in the United States served or serves a health purpose can be a positive factor. An example is if the pregnancy comes with high risks or serious complications. When you are upfront and declare you are coming to the U.S. to give birth, the officer decides, on a case-by-case basis, whether to grant the visa or admission based on proof of strong ties to your country, nonimmigrant intent, and sufficient funds to cover all medical costs.

Paying all medical bills or having your own medical insurance to cover the expenses related to childbirth can help prevent a visa refusal or denial of admission. Ultimately, however, the consular officer or customs officer has discretion to determine whether having a baby in the U.S. is consistent with the purpose of a visitor visa, regardless of whether you cover the medical expenses and do not become a public charge by receiving government assistance to pay the medical bills.

2. Making frequent, extended visits to the United States

U.S. immigration law allows visitor visa holders to conduct legitimate B-1/B-2 activities for a temporary period, minimum of six months. Using ESTA (Electronic System for Travel Authorization) if you are an eligible applicant from a Visa Waiver Program-eligible country allows you visit the United States for 90 days or less.

The U.S. consular officers and customs officers expect you to use the visitor visa or ESTA/Visa Waiver program to engage in tourism and recreational activities, visit family and friends, and conduct other temporary visit activities. Remaining in the U.S. for the maximum or close to the maximum time allowed and then quickly returning to the U.S. (e.g. within a month) for another extended stay do not reflect the travel patterns of a real visitor.

Frequent, extended trips to the United States will likely cause the customs officer to suspect you are really living, studying or working in the country without authorization. You may end up with a shorter authorized stay or a warning from the officer. You could also be placed in secondary inspection and questioned extensively so the officer can find legitimate grounds to deny your entry.

You may be asked to withdraw your application for admission or be issued an expedited removal order due to lack of proper travel documents and even due to willful misrepresentation to enter the U.S.  A visa revocation will likely affect your eligibility for a new visa. An inadmissibility finding will stop you from using the ESTA/Visa Waiver program.

There is no minimum time you must stay in your country before returning to the U.S. for another visit. But if you are constantly traveling to the U.S. and staying for long periods, you can expect to run into problems later, even if you were previously lawfully admitted as a visitor without any complications.

3. Applying for a change of status after entering the United States in another status

U.S. immigration law allows nonimmigrants to change from one status to another (such as B-1/B-2 visitor to F-1 student, H-1B professional worker, or H-2B nonagricultural seasonal worker) or file for asylum within the U.S. if they meet the eligibility criteria.

A request for change of status through the filing of a Form I-539, Application to Extend/Change Nonimmigrant Status, or Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship & Immigration Services is often met with several obstacles. One is that USCIS will not approve the status change request unless you are maintaining lawful B-1/B-2 status or other nonimmigrant status.

Questions regarding whether a willful misrepresentation of material fact to gain an immigration benefit might arise when you file for a change of status within the U.S., instead of apply for the appropriate visa at the U.S. Consulate.

B-1/B-2 visitor visa holders, for instance, may be found to have misrepresented the purpose of their stay if they applied to schools or sought employment after arriving in the United States. Even if you did not attend school or work without authorization in the U.S., your taking steps toward a change in status that permits school attendance or employment in the U.S. could signal to the consular officer that you were not a genuine visitor.

Immigration problems can also occur when you apply for adjustment to permanent resident status instead of file for an immigrant visa at the U.S. Consulate. One of the most common ways for a B-1/B-2 visa holder to adjust to permanent resident (green card) status is to enter into a bona fide marriage to a U.S. citizen and have the citizen file an immigrant petition on his or her behalf. While an overstay, by itself, does not prevent adjustment of status based on marriage to a U.S. citizen, providing false information to a consular officer or customs officer about the purpose of the visit creates immigration problems.

In general, the U.S. Consulate applies a 30/60 day rule in determining whether a misrepresentation was made if you conduct yourself in a manner inconsistent with representations made to the consular officers concerning your intentions at the time of visa application or to customs officers when you requested admission.

If a B-1/B-2 visitor, for example, marries a U.S. citizen and applies for a green card within 30 days of arrival, the consular officer may presume the applicant misrepresented his intentions in seeking a visa or admission to the U.S. There is no presumption of misrepresentation if the request for change of status is made more than 30 days but less than 60 days after arrival. But depending on the facts of the case, the officer may still have a reasonable belief that misrepresentation occurred, in which case the applicant receives an opportunity to present countervailing evidence. While USCIS is not required to follow the Consulate’s 30/60 day policy, it sometimes uses it as guidance. 

[UPDATE: On August 1, 2017, the DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”]

Seeking asylum in the United States, through a credible fear interview process at the U.S port of entry or through the filing of a Form I-589, Application for Asylum and for Withholding of Removal, after being admitted to the U.S., also signals immigrant intent. If asylum is not granted, it will be very difficult (if not impossible) for you to be re-admitted as a visitor or in another status that requires nonimmigrant intent, at least in the near future.

Conclusion

Having a baby in the U.S., making frequent, extended trips to the country, and applying for a change in status following arrival in another status are not prohibited by U.S. immigration law. Still, if you engage in any of these three things, a U.S. consular officer or customs officer may find that you gamed the immigration system or took unfair advantage of immigration loopholes.

Use proper caution and be aware of the immigration risks and consequences associated with these activities. If you are refused a visa, denied admission or issued an expedited removal order for any of these reasons, consult an experienced immigration attorney to discuss possible remedies.

# # #

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.

SUBSCRIBE           CONTACT

Photo by: Meagan