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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)

Posted on July 7, 2017 | Comments Off on 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.

[UPDATE: On January 24, 2020, U.S. federal regulations were updated to restrict travel on a B visitor visa primarily to give birth in the United States. The updated U.S. Department of State Foreign Affairs Manual states, “Visiting temporarily for pleasure does not include travel for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.  Any B nonimmigrant visa applicant who you have reason to believe will give birth during their stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.  The applicant can overcome this presumption if you find that the primary purpose of travel is not obtaining U.S. citizenship for a child.”

Examples are: (1) applicant’s primary purpose for travel is to visit a dying family member, and during the visit the applicant may give birth in the United States because the pregnancy due date overlaps with the family member’s last expected months of life; (2) medically complicated pregnancy and arrangement for specialized medical care in the United States, because such specialized care is not available in or near the country where the applicant resides.]

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 an 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, sufficient funds to cover all medical costs, and legitimate purpose of travel.

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. The mere filing for an extension of status may even cause the U.S. Consulate to question your true intent if you initially informed them the trip would be relatively brief and for a limited purpose before they issued the visitor visa.

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.

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Comments Off on 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)

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Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

Posted on February 4, 2017 | Comments Off on Effects & Impact of Trump’s Executive Order on Protecting the Nation from Foreign Terrorist Entry Into the United States

On day 7 of his Administration, January 27, 2017, President Trump issued his third executive order on immigration, titled Protecting the Nation from Foreign Terrorist Entry Into the United States. Of the three issued so far, this immigration order imposing a 90-day ban on “nationals of countries of particular concern,” suspending the U.S. refugee program for 120 days, and blocking Syrian refugees indefinitely is the most controversial. It led to widespread protests, outcry from some world leaders, federal court litigation, and confusion over how the order will be enforced.

Here is a description of Trump’s executive order on protecting the nation from foreign terrorist entry into the United States, including the potential effects and impact: 

Authority: In the order, Trump cites to the Constitution and federal laws, such as the Immigration & Nationality Act (INA) and 3 U.S.C. 301, as grounds for his presidential authority.

The president may set the policy and practices of immigration agencies and officials, in compliance with federal law set by Congress and the U.S. Constitution.

Purpose: Referring to the  September 11, 2001 terrorist attacks, the order notes, “State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans.” It further states that amendments to the visa process, after September 11, “did not stop attacks by foreign nationals who were admitted to the United States.”

The order next generalizes, “Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.”

The order states the U.S. must not admit the following persons:

  • Those who bear hostile attitudes toward it and its founding principles
  • Those who do not support the Constitution
  • Those who would place violent ideologies over American law
  • Those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own)
  • Those who would oppress Americans of any race, gender, or sexual orientation

Policy Highlights:

1.  90-Day Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern  (Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen)

The President invoked section 212(f) of the INA, 8 U.S.C. 1182(f), to declare that the immigrant and nonimmigrant entry into the United States of aliens (nationals) from countries referred to in section 217(a)(12) of  the INA, 8 U.S.C. 1187(a)(12), would be detrimental to U.S. interests.

The order does not specifically list the “countries of particular concern.” But a reference to section 217(a)(12) (Visa Waiver Program for certain visitors), the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (signed by President Obama in December 2015, as a rider on an omnibus spending bill), and related announcements indicate they are Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. The White House has confirmed these seven countries are affected by the temporary ban.

The order suspends entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of the order. The exceptions are foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas. The Secretaries of State and Homeland Security may also, on a case-by-case basis, and when in the national interest, issue visas or other benefits to nationals of countries for which visas and benefits are otherwise blocked.

The order explains the 90-day suspension is to “reduce investigative burdens on relevant agencies during the review period,” prioritize resources for the screening of foreign nationals, and implement adequate standards to bar foreign terrorists or criminals from entering the U.S.

The President instructs the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine the information needed from any country to ensure visas, admission, or other immigration benefits are not issued to persons posing a security or public-safety threat. They have 30 days to submit a report on the results of their review to the President. The report must include the Secretary’s determination of what information is needed to issue visas and other immigration benefits, plus a list of countries that do not provide adequate information.

The Secretary of State must then request all foreign governments that do not provide the required information on their nationals to start doing so within 60 days. After the 60-day period, the Secretary of Homeland Security, in consultation with the Secretary of State, must provide a list of countries that do not provide the information requested. The President may then issue another proclamation prohibiting the entry of nationals from those countries (except persons with diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas), until compliance occurs.

2. Implement Uniform Screening Standards for All Immigration Programs

The order calls for a uniform screening standard and procedure, including:

  • in-person interviews for all applicants;
  • a database of identity documents provided by applicants;
  • amended application forms that include questions aimed at identifying fraudulent answers and malicious intent;
  • a mechanism to ensure that the applicant is who the applicant claims to be;
  • a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest;
  • a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

3. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017 

The order suspends refugee admissions for 120 days.  During this period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the U.S. Refugee Admissions Program (USRAP) to determine what additional procedures should be taken to ensure refugee status is not granted to those who pose a threat to the security and welfare of the United States, and shall implement these procedures.

Refugee applicants who are already in the USRAP process must first complete these revised procedures before they are admitted to the U.S.  After the 120-day period expires, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have determined the additional procedures are enough to protect national security.

Once refugee admissions resume, priority will be given to refugee claims made by persons on the basis of religious-based persecution, provided the religion is a minority religion in the person’s country of nationality. The Secretaries of State and Homeland Security shall recommend legislation that would assist with such prioritization.

The order bars Syrian refugees indefinitely. It states, ” the entry of nationals of Syria as refugees is detrimental to the interests of the United States” and suspends their entry until the President determines sufficient changes have been made to the USRAP to ensure their admission is consistent with the national interest.

The order adds, “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States,” and suspends their entry until the President determines additional admissions would be in the national interest.

During the suspension, refugees may be admitted on a case-by-case basis, but only if it is in the national interest — including when the person is a religious minority in his country facing religious persecution, when admitting the person would enable the U.S. to abide by a preexisting international agreement, or when the person is in transit and denying admission would cause undue hardship — and it would not pose a risk to national security.

The order also seeks to give state and local jurisdictions a role in deciding the placement or settlement of refugees in their states and cities.

4. Expedited Completion of the Biometric Entry-Exit Tracking System

The order directs the Secretary of Homeland Security to expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.

5.  Visa Interview Security

The order suspends the Visa Interview Waiver Program (not the Visa Waiver Program). The VIWP allowed consular officers to exempt low-risk/no-risk applicants from in-person interviews if they met certain criteria, including seeking to renew their temporary visas within a year of expiration.

Effects and Impact

1. Temporary banning of nationals from certain countries

The Trump Administration insists the temporary suspension is not a “Muslim ban,” but a temporary halt to better prevent  terrorists attacks in the United States.

Section 212 (f) of the Immigration & Nationality Act allows the President to suspend entry or impose travel restrictions in the national interest. It states: 

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This is the first time a President, however, has used the statute to ban an entire nation from designated countries. The non-discrimination provision of 8 U.S.C. 1152(a)(1)(A) also states, “no person shall…be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Because the White House says the order aims to stop terrorist attacks, which is in the national interest, critics question why certain countries are not on the list and others are.  Of the 19 hijackers involved in the September 11th terrorist attack, 15 were from Saudi Arabia, two from United Arab Emirates, one from Egypt and one from Lebanon. No fatal terrorist attacks were carried out by nationals from the seven countries targeted by Trump’s ban.

The Trump Administration pointed out the seven countries on the list originated from a law that Obama signed, in which nationals of or persons who traveled to Iran, Iraq, Sudan, Syria Libya, Somalia, and Yemen are prohibited from using the Visa Waiver Program (VWP) and must obtain visas to enter the U.S. The VWP allows citizens of more than 30 countries to visit the U.S. without a visa, as long as they are eligible (e.g. have no immigration violations) and seek entry as a tourist for 90 days or less.

Trump’s order banning entry of nationals from certain countries – even when they have valid visas or entry documents – is unprecedented. Although the suspension is temporary, the order indicates it could become permanent if the countries do not provide adequate information  on their nationals, as requested by the U.S. government. The Administration has also said the list could expand to include other countries.

War-torn countries with dysfunctional governments are unlikely to have or to hand over reliable information or public records on their nationals. Yet the order allows for a Presidential proclamation to continue a ban on nationals from countries that do not provide requested information.

Trump’s order went into effect as soon as he signed it. Airlines and immigration agencies were confused about how to enforce the ban. To date, the latest information is as follows:

U.S. citizens. Persons who hold a U.S. passport – whether as a natural-born or naturalized citizen – will be admitted to the country. The U.S. Customs & Border Protection, however, has authority to question citizens, especially if they have traveled to designated countries.

Dual citizens. Persons who hold a passport from a designated country and a passport from a non-designated country may choose how they present themselves for entry. Dual nationals should present the passport from the non-designated country, with a valid visa, to be admitted to the U.S. But they may be subject to questioning by the CBP, especially if they have traveled to designated countries.

Lawful permanent residents. Green card holders, even when they hold passports from designated countries, will be admitted to the U.S., absent derogatory information. They may, however, be subject to secondary inspection by the CBP just as they have always been.

Trump’s order bans immigrants (permanent residents/green card holders) from the countries of concern, but states a waiver may be issued in the national interest. In a statement issued on January 29, DHS Secretary John Kelly provided a blanket waiver stating, “I hereby deem the entry of lawful permanent residents to be in the national interest.” Kelly added, “Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

Nonimmigrants from designated countries. Persons from designated countries will not be allowed to enter the U.S. as a visitor or in any other nonimmigrant visa category (except diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas). They may withdraw their application for admission and avoid an expedited removal order.

2. Heightened screening of applicants for visas and all other immigration benefits

Trump’s order includes revisions to the screening standard and procedures for persons applying for immigration benefits (e.g. nonimmigrant visas,  immigrant visas, and permanent resident status). It involves amendments to the application forms to detect fraud and malicious intent.

The U.S. immigration agencies and State Department currently use stringent screening methods and require heavy documentation before they issue immigration benefits. Fingerprints are taken and background checks are run before the benefit is granted.

The Form DS-160 nonimmigrant visa application, Form DS-260 immigrant visa application, and Form I-485 application for permanent residence include screening questions related to the person’s identity, travel history, immigration violations, and criminal history. They also include security and background questions, such as whether the person has ever been a member of a terrorist organization or committed any terrorist activity.

Adding more questions to the application forms is unlikely to reveal material information on the person’s propensity or intent to commit terrorist acts. The questions should also not result in discrimination based on protected grounds (e.g religious beliefs) or elicit irrelevant information (e.g. only naturalization applicants are required to support the Constitution).

A review of attacks linked to radicalized Muslims in the U.S. since Sept. 11, 2001, does not indicate a high correlation between lack of visa screening and terrorist attacks:

  • 2016 – Omar Mateen shot dead 49 at the Pulse nightclub in Orlando. Although his parents were from Afghanistan, he was born in New York.
  • 2015 – Syed Rizwan Farook and his wife Tashfeen Malik shot dead 14 people at an office in San Bernardino, Ca., before they were killed. He was born in Chicago to parents from Pakistan. She was born in Pakistan and raised mostly in Saudi Arabia.
  • 2015 – Mohammad Abdulazeez opened fire at two military recruiting centers in Chattanooga, Tenn., killing five U.S. military personnel. He was a naturalized American who was born in Kuwait to parents who were Jordanian and Palestinian.
  • 2013 – Two brothers, Tamerlan and Dzhokhar Tsarnaev carried out the Boston Marathon bombing that killed three. Tamerlan was born in the Soviet Union (now southern Russia), and Dzokhar was born in Kyrgyzstan. They were admitted to the U.S. on visitor visas as young children, along with their parents, before they were granted asylum and then permanent residence.
  • 2009 – Army Maj. Nidal Hasan, shot dead 13 in Ft. Hood, Texas. Hasan was born in Virginia to Palestinian parents who had immigrated from the West Bank.
  • 2009 – Abdulhakim Muhammad shot and killed an Army private at a recruiting center in Little Rock. He was born in Memphis to a Christian family, but converted to Islam and changed his name from Carlos Bledsoe.

Extreme vetting, as Trump calls it, could slow down visa and green card processing, deter family reunification, affect U.S. businesses in need of foreign national talent, and discourage travel to the U.S. that benefits the economy. Immediately after the order was issued, U.S. Consulates stopped processing visas,  cancelled visa interviews, and revoked visas when the applicant is a national of a designated country. USCIS also suspended green card processing for persons affected by the executive order.

3. Restricting refugee admissions

The 120-day suspension of the refugee program and indefinite ban on entry of all Syrian refugees has been met with strong opposition. Refugees have not been linked to terrorists attacks in the U.S., as the executive order seems to claim.

Refugees are among the most vulnerable groups in the world. They must show they have been persecuted or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, and/or political opinion in their country to obtain refugee status in the U.S.

Refugees undergo thorough background checks  and heavy scrutiny to be admitted to the country. They face recurrent vetting (background checks) throughout the refugee screening process. Those who are cleared to come to the U.S. must apply for a green card within one year, which requires a new cycle of vetting. Because rigorous screening already exists for refugees, the ban is criticized for being overreaching and discriminatory.

According to the executive order, priority will be given to applicants who are suffering religious-based prosecution, but only if they are minorities in their country. Trump said the move would protect Christians in Muslim-majority countries, which critics say amounts to religious discrimination.

Giving more power to states and localities to determine the placement of refugees in their jurisdiction is also subject to legal challenges.  Based on reports that one person involved in the November 2015 Paris terror attacks was carrying a Syrian passport (which may have been fake or stolen, according to subsequent reports), 31 governors said they opposed letting Syrian refugees into their states. While states have some discretion as to whether their agencies participate in the federally funded Refugee Resettlement Program,  they may not refuse assistance to refugees based on race, religion, nationality, sex, or political opinion. They may also not prevent refugees from moving into their state.

4. Tracking entries and exits

The biometric entry-exit screening system aims to track foreign visitors’ arrival and departure using information like fingerprints. Such a system was first required by the Illegal Immigration Reform and Immigrant Responsibility Act signed by President Clinton in 1996. It was further recommended by the independent, bipartisan 9/11 Commission in 2004.

The “entry” part of the system is in place. Persons who enter the U.S. on a visa or the Visa Waiver Program normally provide biometric information (fingerprints and a digital photograph) to U.S. border officials. Outside of a few pilot programs, travelers face no biometric exit screening.

CBP previously issued a paper Form I-94 (Arrival/Departure Record), which was to be turned into the commercial carrier or CBP upon departure. CBP switched to scanning a traveler’s passport, generating an electronic arrival record with data elements found on the current paper Form I-94, and making the electronic I-94 available on its website. CBP records departures electronically via manifest information provided by the carrier or its own system.

In a fiscal year 2016 report to Congress, then-Secretary of Homeland Security, Jeh Johnson, announced CBP would redouble its efforts to complete the biometric entry/exit system, and  begin implementing biometric exit, starting at the highest volume U.S. airports, in 2018.

This report noted that about 99% of nonimmigrant visitors arriving at air and sea ports of entry complied with the terms of their admission. It added the biometric exit program is not limited to collecting biometric information from a departing passenger, but must also help ensure the passenger actually departs the U.S.

The report stated that obstacles included existing  infrastructure at U.S. airports, which did not support biometric exit control procedures. Thus, “deploying an effective biometric exit system includes designing and developing a new process for verifying departure where none exists today and doing so in a very complex and time-sensitive operational environment.”

For the system to work properly, it needs to cover all land, air, and sea ports of entry, which is a major undertaking. Trump’s order to expedite the entry-exit system is a continuation of prior Administrations’ efforts.

5. Suspending the Visa Interview Waiver Program

The suspension of the Visa Interview Waiver Program means consular officers must interview all visa applicants, regardless of whether they previously met the criteria for a visa grant without an interview. Children under age 14, applicants over age 80, and applicants whose visas recently expired may no longer obtain visa renewals without an in-person interview at the Consulate.

In-person interviews for low-risk/no-risk applicants could make even routine applications more complicated and time consuming and create bottlenecks at U.S. Consulates handling frequent visitors. Discouraging tourism and visits to the U.S. by law-abiding persons may result from this new inconvenience.

Conclusion

The 90-day bar on entry of nationals from affected countries, 120-day suspension of the refugee program, and indefinite ban on Syrian refugees triggered fear and uncertainty among immigrant groups. After the executive order was issued, nationals of designated countries with valid visas and refugees who had completed the screening process were prevented from boarding flights or denied entry to the U.S.

Although the White House deems the suspension as temporary, the executive order states all the timelines may be extended by a new Presidential proclamation.  In the meantime, the situation is in flux due to legal challenges and the Administration’s backing down on certain aspects. Dozens of federal court lawsuits have been filed to challenge the bans. Attorney Generals of several states, including Minnesota, Washington, New York, Virginia and Massachusetts, are also taking legal action against the ban, calling it unconstitutional.

On January 28, 2017, the U.S. District Court for the Eastern District of New York was the first to issue an emergency stay of removal, preventing the Department of Homeland Security from removing individuals with approved refugee status, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.

On February 3, 2017, the U.S. District Court for the Western District of Washington, in Seattle, issued a restraining order temporarily blocking the ban on entry to the United States, nationwide. Visa holders and refugees from the designated countries may be admitted to the U.S. while the court order is in effect. The White House vowed to fight it.

The executive order stops short of Trump’s campaign call for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Still, the ban on entire nations from designated countries has been met with legal battles, massive protests and ongoing criticism. For the executive order to come close to accomplishing its stated purpose, it will have to first survive the backlash.

For information on Trump’s other executive orders on immigration, read:

Effects & Impact of Trump’s Executive Order on Border Security and Immigration Enforcement Improvements

Effects & Impact of Trump’s Executive Order on Enhancing Public Safety in the Interior of the United States

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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Applying for a Green Card Following Entry Into the U.S. as a Visitor

Posted on July 31, 2015 | Comments Off on Applying for a Green Card Following Entry Into the U.S. as a Visitor

Foreign nationals who enter the U.S. on a B-1/B-2 visitor visa or on the Visa Waiver Program (VWP) may file for their green card within the U.S. – instead of apply for their immigrant visa aboard – if they fit in the Immediate Relatives category. A common example is when the person enters into a bona fide marriage to a U.S. citizen following entry to the U.S. as a visitor. But the green card applicant’s true intentions when he applied for the visitor visa (or ESTA) or requested entry in visitor status may be called into question.

The visitor visa and VWP program allow foreign nationals to enter the U.S. for tourism or business for a temporary period. Using the visitor visa or VWP to enter the U.S. with the specific intent of immigrating to the U.S. carries risks and consequences.

Overstaying their non-immigrant status in the U.S., in and of itself, does not prevent immediate relatives from adjusting to permanent resident status. Immediate relatives include the U.S. citizen’s spouse, children under age 21, and parents (if the U.S. citizen is 21 or older). In addition, a general desire to immigrate is generally fine. Problems, however, arise when there is willful misrepresentation about the purpose of the trip.

What are the risks and consequences of the visitor-to-green card holder option? 

1. Foreign national may be charged with fraud or willful misrepresentation to obtain immigration benefits

Immigration authorities expect fiancé(e)s of U.S. citizens to apply for a K-1 visa and spouses, parents and minor children of U.S. citizens to apply for an immigrant visa at the U.S. Consulate abroad, rather than enter the U.S. as a visitor and then apply for a marriage-based green card.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status.  When a foreign national marries a U.S. citizen and takes up residency in the United States within 30 days of entry, the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred after 30 days but within 60 days of entry, the DOS does not presume there was misrepresentation. But if the facts provide a reasonable basis to believe the foreign national misrepresented his intent, the DOS allows him to present rebuttal evidence. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. In other words, immediate relatives of U.S. citizens who wish to apply for adjustment of status may do so at any time, even within 30 days of entry into the U.S.

[See updates below regarding the switch from 30/60 day rule to 90 day rule.]

Nevertheless, USCIS is often persuaded by and frequently follows the DOS policy. During the adjustment of status process, USCIS may find that the applicant misused the visitor visa or VWP by claiming to be a mere visitor at the U.S. port of entry, when in fact he intended to remain in the U.S. and file for a marriage-based green card.

USCIS might be especially suspicious if you get married or apply for a green card within 30 to 60 days of entering the U.S. They might overlook this conduct or you might be able to convince the USCIS officer that you decided to marry or apply for a green card only after you arrived in the U.S.

If USCIS is not convinced by  your explanation, it will deny your marriage-based green card application on the basis of immigration fraud or misrepresentation, unless you qualify for and receive an I-601 waiver of inadmissibility.  (To obtain an I-601 waiver, applicants must show a qualifying relative  – i.e. U.S. citizen or permanent resident spouse or parent – would suffer extreme hardships if  they are not granted the green card and allowed to stay in the U.S.)

At the U.S. port of entry, the U.S. Customs and Border Protection (CBP) officer may also question the visitor visa holder or VWP entrant about the purpose of his visit.  If you truthfully inform the customs officer that you are coming to the U.S. to get married or visit your U.S. citizen fiancé(e), he could find that you have no intent to leave the U.S. before your authorized stay expires.  The officer may then issue an expedited removal order or request that you withdraw your application for admission into the U.S. In some cases, your visitor visa may be cancelled or revoked and you may be barred from using the VWP.

It can be tempting to just tell the U.S. Consulate or customs officer that you are only coming to the U.S. for a temporary visit, when in fact you intend to engage in other conduct that reflects immigrant intent. While preconceived intent to immigrate to the U.S. does not bar immediate relatives from adjusting to permanent resident status, fraud or willful misrepresentation to obtain immigration benefits does.

2. Foreign national is subject to removal from the U.S.

Although overstaying the B-1/B-2 or VWP authorized period does not bar adjustment of status, it does make the foreign national removable from the U.S. The maximum period of stay in B-1/B-2 status is typically 6 months.  The maximum period of stay on the VWP is 90 days.

When the foreign national remains in the U.S. following expiration of the B-1/B-2 authorized period, he is subject to being placed in removal proceedings due to the overstay. Because VWP entrants waive their right to contest any action for removal, except when applying for asylum, they may be ordered removed without being referred to an Immigration Judge.

The filing of an I-485 application tolls unlawful presence, but does not provide any lawful status. If the adjustment application is denied and the person is not maintaining any nonimmigrant status, he is not only subject to removal, but also begins to accrue unlawful presence.

Departure from the U.S. after accruing more than 180 days to less than 1 year of unlawful presence in the U.S. triggers a 3-year bar from the U.S. The bar is 10 years if the unlawful presence lasted for 1 year or more. To obtain an immigrant visa prior to when the  3/10 year bar expires, the foreign national must first receive an I-601 waiver of inadmissibility. A foreign national who was ordered removed from the U.S. would also need to obtain advance permission to re-enter the U.S. by filing a Form I-212 application (unless the 5, 10 or 20-year bar, resulting from the removal order, has passed).

Visa fraud (misusing the visitor visa or VWP to gain entry into the U.S.) is also grounds for removal from the U.S. Instead of being granted a green card, the foreign national who entered on a visitor visa may end up in removal proceedings, and the VWP entrant may be issued an expedited removal order, if they are found to have committed visa fraud.

When does the visitor-to-green card holder option work best?

1. Foreign national met the U.S. citizen spouse or began committed relationship after he entered the U.S.

In many cases, foreign nationals meet their U.S. citizen spouses-to-be or enter into a committed relationship or get engaged only after they arrive in the U.S. on a visitor’s visa or on the VWP, either during the authorized stay or after the authorized stay expired.

A bona fide marriage between the U.S. citizen and foreign national allows the couple to file a one-step application with USCIS (i.e. US citizen files I-130 immigrant petition and foreign national files I-485 application for adjustment of status, concurrently.)  Upon entry, the foreign national might have a general desire to remain in the U.S., but no specific plans to immigrate because he had yet to meet or become engaged to the U.S. citizen spouse.

The longer the time period between the visitor visa or VWP entry and the filing of the green card application, the easier it is for the foreign national to prove he did not commit fraud or willful misrepresentation to gain entry into the U.S.

2. Foreign national is undecided about immigrating to the U.S. at the time of entry to the U.S.

Entering the U.S. on a visitor visa or on the VWP to spend time with a U.S. citizen petitioner is a permissible activity. It is possible for a person to enter the U.S. in visitor status to maintain a long-distance relationship with a U.S. citizen fiancé(e), or to get married to the U.S. citizen – as long as the intent is to timely depart the U.S. before the authorized stay ends.

Not all foreign nationals want to immigrate to the United States. Some are from developed countries or run successful businesses or hold lucrative professions in their home countries that they do not want to relinquish.

Fraud or willful misrepresentation occurs when you intend to remain in the U.S. permanently, but you tell the consular officer or customs officer that you are coming to the U.S. for a temporary visit. In general, silence or failure to volunteer negative information that is not specifically requested does not amount to fraud or willful misrepresentation.

Due to the 30/60 day rule, it is best to wait to file the marriage-based green card application at least 91 days after entry on a visitor visa or on the VWP.  If the application is made after 90 days, USCIS normally assumes the foreign national acted in good faith and was undecided about immigrating to the U.S.

[UPDATE, 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.]

[UPDATE, September 10, 2021: The DOS updated its policy on the 90-day rule: If an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application or admission to the United States, the officer may presume the applicant made a willful misrepresentation. The officer must provide the applicant with the opportunity to rebut the presumption of misrepresentation. Inconsistent conduct includes the visitor marrying a United States citizen or LPR and taking up residence in the United States.  Examples of taking up residence are applicant signing a long-term lease or mortgage, having utility bills, and obtaining a local driver’s license.]”

Keep in mind that USCIS considers other evidence when determining your true intentions upon entry into the U.S. For example, to prove the bona fide nature of your marriage, you may submit letters, emails and other correspondences proving your premarital courtship. If any of these correspondences show you planned to marry and remain permanently in the U.S. following entry as a visitor, USCIS could find that you misused the visitor visa or VWP and thus deny your green card application.

Consult an Immigration Attorney to Help You Determine Your Best Immigration Option

Although filing for a marriage-based green card following entry to the U.S. as a visitor is quite common, there are risks and consequences involved in this process.

Applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate abroad  instead of entering the U.S. on a visitor visa – when the intent is to immigrate to the U.S. – is normally more appropriate.

If you are already in the U.S. and have concerns about proving your good faith non-immigrant intent upon entry into the U.S., you could leave the U.S. before your authorized stay expires and apply for the appropriate visa abroad. And if you leave the U.S. after your authorized stay expires, and you accumulated at least 180 days of unlawful presence prior to your departure, you will trigger the 3/10-year bar. In that event, you will need to obtain an I-601 waiver of inadmissibility to obtain the immigrant visa before the 3/10-year bar expires.

Consult an experienced immigration attorney to help you determine your best visa option and immigration route based on marriage to a U.S. citizen.

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: Theophilos Papadopoulos

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