Articles Posted in General Immigration Issues

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On September 1, 2017, the U.S. Department of State amended its Foreign Affairs Manual (FAM), with a new directive regarding “misrepresentation” as it relates to foreign nationals in the U.S. “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to Department of Homeland Security when applying for admission or for an immigration benefit.”  The conduct most commonly deemed “inconsistent with representations made to consular officers” is filing for adjustment of status to permanent residency shortly after arriving in the U.S. under a nonimmigrant visa, but also includes other conduct not authorized by one’s nonimmigrant visa, such as engaging in unauthorized study or employment, application for certain benefits, or marrying a U.S. citizen or permanent resident.

The new subsection in FAM instructs adjudicating officers: “If a [foreign national] violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry . . . you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.” This 90-Day Rule replaces the previous rule which held that, if a foreign national engaged in “conduct inconsistent with representations” (for example, applying for adjustment of status) within the first 30 days after entering the U.S. under a nonimmigrant status, the presumption would be that the foreign national had willfully misrepresented their intention when applying for a nonimmigrant visa.  However, if the “inconsistent conduct” occurred more than 30 days but less than 60 days after the foreign national’s arrival, there would be no presumption either for or against a supposition of willful misrepresentation, and, if the conduct occurred more than 60 days after arrival, it would be presumed that there had been no willful misrepresentation. Under the new rule, “conduct inconsistent” within 90 days of arrival invokes an automatic presumption that the foreign national willfully misrepresented him or herself in obtaining his or her nonimmigrant visa.

This constitutes a major change in the regulations governing perceived misrepresentation with far reaching potential effects.  Per 212(a)(6)(C) of the Immigration and Nationality Act, a foreign national found to have willfully misrepresented him/herself for the purpose of gaining a visa or admission to the U.S. is subject to a permanent ban on entry into the U.S. Although applicants are permitted to rebut a presumption of misrepresentation, the burden of proof falls upon the applicant to “establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.”

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On September 24, 2017, the Trump administration announced details of a revised and expanded travel ban upon nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.  The ban immediately impacts nationals of Iran, Libya, Somalia, Syria, and Yemen with no bona fide relationship to a U.S. person or entity, and will take effect for all other impacted nationals of those countries, as well as nationals of Chad, North Korea, and Venezuela, on October 18, 2017.

The original travel ban has been the subject of numerous legal challenges which blocked implementation of the ban until June, when the U.S. Supreme Court permitted a more narrowly focused version of the ban to go into effect until the Court could ultimately rule on its constitutionality, with oral arguments scheduled for October 10, 2017.

In contrast to the original ban, which temporarily suspended travel to the U.S. by nationals of the designated countries for a period of ninety days, the new ban applies indefinitely. The new rules do not apply to legal permanent residents, nor do they apply to current nonimmigrant visa holders already in the U.S.  This means that students from the banned countries may remain and finish their studies, and business employees may stay for as long as their present visas are valid. Once their existing visas expire however, they will be subject to the travel ban.

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On September 5, 2017, the Trump administration announced the rescission of the Deferred Action for Childhood Arrivals (DACA) program.  This impacts almost 800,000 individuals who have been granted DACA.

In a June 15, 2012 memorandum, the Obama Administration announced the DACA initiative.  DACA provided certain people who came to the U.S. as children and who meet several guidelines the opportunity to request consideration of deferred action for a period of two years, subject to renewal.  DACA recipients were also eligible for work authorization.

While Congress may pass a permanent protection for DACA recipients, here are answers to some questions:

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Employment based immigration has received renewed attention under the Trump administration. Critics of U.S. immigration policy have long contended that extending employment opportunities to foreign nationals takes jobs from American workers.  Proponents of employment-based immigration point out that having access to highly skilled workers from around the world generates economic innovation and activity that creates more jobs for American workers and is therefore a benefit to the U.S. economy and its workforce.  That counterbalancing factor is particularly present in STEM (science, technology, engineering, and mathematics) fields, where foreign workers constitute 25% of the workforce.

According to a study by the Brookings Institute, the STEM economy is the fastest growing sector of the economy, with STEM jobs now accounting for 20% of all jobs in the U.S., and outperforms other areas of the economy across a range of economic indicators, including job growth, employment rates, wages, patenting, and exports.  The American Immigration Council reports that much of the growth of the STEM economy is the result of innovations contributed by foreign STEM workers, whose skills more often complement those of their US coworkers rather than compete with them.  The presence of foreign born professionals thus increases productivity, business revenue, and therefore job creation and wages.  A study by the American Enterprise Institute study found that, for every 100 foreign-born workers working in STEM fields, the economy added 262 jobs for U.S. born workers.

Foreign-born STEM workers also play a crucial role in fields where growing demand for services outpaces the supply of U.S. workers.  The most notable example is the healthcare field, where meeting the needs of an aging Baby Boomer population is straining the nation’s healthcare resources.  29.4% of the physicians and surgeons in the U.S. are foreign born, as are 16.9% of registered nurses.

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On November 20, 2014, President Obama announced a series of executive actions on immigration that will include: (1) creating a deferred action program for the parents of U.S. citizen and lawful permanent resident children who meet the eligibility requirements; (2) implementing a “Priority Enforcement Program”; and (3) streamlining immigrant and nonimmigrant programs to boost the economy and create jobs in the U.S.

Actions related to business immigration changes include:

• Providing portable work authorization for high-skilled workers awaiting Lawful Permanent Resident (LPR) status and their spouses;

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On November 20, 2014, President Obama announced he will provide immediate relief for many of those impacted by of our immigration system, and he is offering Congress an architecture for the permanent reforms.

Under the new policies announced, the Obama Administration will build on the Deferred Action for Childhood Arrivals (DACA) program by providing temporary relief for the parents of U.S. Citizens and lawful permanent residents. The new program, to be called Deferred Action for Parents (DAP), will ensure that millions of U.S. Citizen and lawful permanent resident children will remain unified with their parents. The President also announced new enforcement policies and steps to improve the adjudication of business and family visas.

According to the American Immigration Council, every U.S. President since at least 1956 has granted temporary immigration relief to one or more groups in need of assistance. Like his predecessors, President Obama did not provide a permanent legal status to anyone-only Congress can do that.

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A number of U.S. employers have recently received denials for change of status (COS) and adjustment of status (AOS) applications where the beneficiary purchased, but did not use, an airline ticket to depart the United States. The only reason cited in the denials is that the foreign national’s alleged departure from the United States shows constructive abandonment of the application.

U.S. Customs and Border Protection (CBP) has informed USCIS of this trend, classifying it as a simple office training issue. On August 6, 2014, CBP explained that when a foreign national purchases an international plane ticket, this information is uploaded to its computer system, which is shared with USCIS. Referred to as an “implied departure,” the ticket is displayed on the preliminary screen in the system’s electronic record for the ticketed foreign national. If the USCIS officer fails to click to a deeper level of the electronic record, he or she will not know whether the foreign national actually boarded the plane and departed the United States. CBP is actively taking steps to rectify this issue and expects a speedy resolution.

If you would like to find out more about “implied departures” or have received such a denial, feel free to contact our office.

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On July 29, 2014, the U.S. Department of State announced that its consular system is experiencing technical difficulties, which began in mid-July. The problem is worldwide and not specific to any particular country or visa category. These difficulties have prevented some U.S. embassies and consulates from issuing passports, visas, and other official documents. The State Department assured the public that it is working diligently in investigating the cause of the performance issues and to restore full functionality to its global database. Please refer to the State Department website for regular updates on the status of visa issuance.

If you would like to know more about the status of visa issuance and/or how this affects you, please contact our office.

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The Deferred Action for Childhood Arrivals (DACA) policy permits individuals who arrived in the United States before the age of 16 and who meet other age, education, continuous presence, and criminal history-related requirements to remain in the United States for a renewable two-year period and to apply for work authorization. The federal REAL ID Act specifically identifies deferred action as a lawful status that would permit the issuance of a federally recognized driver’s license.

However, because the rules governing eligibility for driver’s licenses are determined at the state level, a DACA grant does not automatically provide eligibility for a state driver’s license. Because the REAL ID Act federally recognizes deferred action as lawful presence, there are strong arguments for states to issue driver’s licenses to deferred action grantees. DACA recipients who do obtain work authorization and social security numbers qualify under the eligibility rules for a driver’s license in almost every state. Currently, otherwise-eligible DACA grantees can get a driver’s license in every state except Arizona and Nebraska. Litigation challenging the denial of driver’s licenses to DACA grantees in those two states is ongoing.

For more information about DACA, please contact our office.

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The USCIS California Service Center (CSC) reports that it accidentally issued I-797 approval notices without I-94 cards. It notes that corrected approval notices have been issued. If you do not receive a corrected notice by July 20, email reports@aila.org with the subject line “CSC I-797 Problem.”

The Vermont Service Center (VSC) reports a similar glitch resulting in the issuance of deficient approval notices. If you received a deficient notice from VSC for a premium processing case and have not yet received a corrected notice, contact the VSC Premium Processing Unit. If you received deficient notice for a non-premium processing case and have not yet received a corrected notice, email reports@aila.org with the subject line “VSC I-797 Problem.”