Due to the controversy surrounding President Trump's "2.0 Muslim Ban," the press devoted very little attention to a Presidential Memorandum signed the same day (March 6) ordering the Department of State and Department of Homeland Security to develop and implement protocols and procedures to "enhance the screening and vetting of applications for visas and all other immigration benefits." From March 15 through March 17, 2017, Secretary of State issued a series of important cables to consular posts around the world in accordance with the memorandum, directing consulates to immediately implement measures to ensure that all visa applicants are properly vetted. Two of the most important cables can be viewed here and here.
The American Immigration Lawyers Association recently issued a Practice Pointer to attorneys that is especially relevant to visitors from Canada. The advisory relates to Canadians and the legal consequences of unintentionally overstaying their visits here. The intent of this week's blog is not to go into the intricacies of the law, but some of the main points covered are worth reiterating because Canadians are sometimes treated differently than other foreign nationals.
When the subject of the "30/60 day rule" is discussed, it is often brought up in the context of marriage based cases in which a foreign national marries or files for adjustment of status within 30 to 90 days after entering the US. The issue is whether the alien harbored a pre-conceived intent to marry prior to entering the country (normally on a B1/B2 visitor's visa). If the individual marries and files for permanent residency within 30 days of entry, most USCIS officers will follow this notorious Department of State rule and presume misrepresentation; if the marriage and/or adjustment occurs within 60 days of entry, officers will afford the alien to present evidence that he/she did not misrepresent his/her intentions at entry.
Although it has always been a potential issue, the presence of tattoos and their impact on visas has become more prevalent these days. The problem frequently occurs during the consular processing process where an applicant is applying for an immigrant visa abroad to come to the US. However, it is certainly not limited to US posts in foreign countries. The issue also arises in the context of Deferred Action for Childhood Arrivals or "DACA" applications. Although tattoos are culturally acceptable in this day and age, the fact is that the very presence of one on a visa applicant can potentially impact or possibly derail his his/her visa application.
On August 29, 2016, the new rule went into effect regarding the I601A Provisional Waiver process. We discussed the important changes here briefly a while back. Even lawyers are taking their time getting a grasp on the new changes, so for the layman, the new regulations can understandably still cause a lot of confusion out there.
Late last year, the Department of State began issuing two visa bulletins. Notwithstanding the potential benefits of the new chart, the two charts have caused a lot of confusion within the immigrant community. With all the retrogression going on these days, it is critical to understand the difference between the two charts and which one is applicable.
Earlier this month, the Third Circuit Court of Appeals issued an important precedential decision that affects the ability of individuals entering the US on K-4 visas to apply for adjustment of status. The case is Cen v. Attorney General and is binding on all cases that arise within the Third Circuit, which fortunately includes New Jersey. The Court held that the regulations pertaining to K-4 visa holders conflict with a common sense reading of the plain language of the Immigration and Nationality Act and therefore ruled it invalid. As a result, K-4 visa holders currently in the country may now be eligible to apply for their green cards here even if they were over the age of eighteen at the time of their parents' marriage.
Because immigration is arguably just as esoteric and incomprehensible as the tax code, it is not surprising that there still remains a lot of confusion over K visas and marriage spouse visas. Here is a brief, but certainly not comprehensive, primer on what some key differences are:
The number of foreign nationals who enter the United States each year can sometimes lead people to assume that securing a tourist visa is "easy." Nothing could be further from the truth. Ironically, obtaining a visitor visa (B1/B2) can arguably be more difficult than obtaining an immigrant visa. This is so because there are clearly defined paths and set of criteria through either family or employment that one can follow to pursue a visa for permanent residence, whereas for temporary visas, the evaluation process can be much more open and subjective. Consular officers are granted a wide amount of discretion when considering visitor visa applications and their denials are not subject to as much scrutiny or review.
The Department of State recently released its June Visa Bulletin, and to the shock of many people, especially those who have filed family based applications, there is major retrogression in some categories. "Retrogression," to put things loosely, simply means that a priority date has gone back, instead of progressing further. Consequently, consular interviews and visa applications will not be scheduled or adjudicated until the visa date becomes current again. Retrogression in some employment categories has generated much attention, but the significant backward movement for family preference category F4 for siblings of nationals of India seems to have escaped notice. According to the May Visa Bulletin, the Department of State was working on cases with a priority date of July 22, 2003. However, the June Visa Bulletin indicates that the date has gone back to January 1, 2001! This essentially means that cases that would have been scheduled or heard within the next couple of months have now been pushed back more than two years.