Over the last year, there has been alarming uptick of consular cases denied on public charge grounds. Under this ground, a visa may be refused if the "applicant is likely, at any time after admission, to become primarily dependent on the US Government (federal, state, or local) for subsistence. Under new Department of State guidelines, the Affidavit of Support, in and of itself-even where the petitioner meets 125% of the poverty guideline level-is no longer dispositive. While a strong affidavit may serve as a positive factor, a whole host of other factors should be taken into consideration by the consular officer, including the visa applicant's "age, health, family status, assets, resources, financial status, education, and skills."
One of the most frequently asked questions we run into concerns the legal ability of derivative family-based beneficiaries to immigrate if the principal beneficiary is not able to. The common context in which this occurs is when a principal beneficiary dies before his/her case becomes ripe and a visa granted. What happens to the principal beneficiary's family members? Can they still immigrate to the United States even though the principal beneficiary is deceased? The short answer, unfortunately, is no. Derivative beneficiaries are literally that: derivatives, and their status derives or depends on the status of the main beneficiary. If the principal beneficiary is unable to qualify for a visa, then family members under him/her will also not be accorded visas. In the case of either the petitioner's or beneficiary's death, in fact, the I-130 petition for alien relative is automatically revoked.
In this climate of increased immigration enforcement, more and more undocumented aliens are being picked up at an alarming pace. Those with outstanding removal and deportation orders are particularly at risk, as they are essentially considered fugitives by Immigration and Customs Enforcement, the enforcement arm of the Department of Homeland Security. It is tempting for some in this situation to purposefully evade the immigration authorities by moving without informing the government. However, individuals should be cognizant of the legal consequences of such conduct. The penalties related to removal are codified in Immigration and Nationality Act Section 243 and penalize willful failure to depart the US pursuant to a removal order. INA 243(a)(1)(A) provides that any alien against whom a final order of removal is outstanding who "willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order" shall be fined or imprisoned not more than four years (and in some cases, 10 years). These penalties extend as well to those willfully fail or refuse to present oneself for removal, as well as to other people who connive, conspire, or take any other action "designed to prevent or hamper" another person's removal.
In the middle of January 2017, USCIS released a Policy Memorandum concerning "The Role and Use of Interpreters in Domestic Field Office Interviews." The new memo (PM-602-0125.1) standardizes guidance on the use of interpreters agency wide in order to ensure that the rules are applied uniformly and fairly. It should be of particular importance to those summoned to appear at USCIS interviews who are not fluent in or able to communicate competently in English. (The policy does not apply to the following scenarios or situations, which have their own protocols: asylum interviews; credible fear screening interviews; NACARA related interviews; refugee interviews; interviews conducted at a USCIS overseas office; and interviews for which USCIS provides an interpreter.)
Many undocumented or "illegal" aliens are understandably concerned and apprehensive about President-elect Trump's impending immigration policies once he takes office on January 20. Many have opined that he will likely cancel DACA and institute more aggressive enforcement methods. Of course, no one knows for sure. All of us will just have to wait and see. Regardless, it remains critical for those who are potentially affected to take prudent action now. Mr. Trump will certainly tackle immigration head on, but it may not necessarily be the first item on his agenda. Undocumented individuals and those who are out of status should definitely be consulting with attorneys who can evaluate their options. But there is also something else that people should consider doing, if they haven't already, and that is securing a copy of their immigration file if one exists (and sometimes to confirm whether or not there is an immigration record). This is done through a Freedom of Information Act (or "FOIA" for short) request. If an individual has already obtained a copy of his/her records, it will help an attorney tremendously in getting an accurate picture of a person's circumstances and eliminate a lot of guesswork. If one does not have a copy, the attorney may still conduct an evaluation but may need to conduct a FOIA request in any case to confirm information or to base one's opinion on.
There is the three-year bar. There is also a ten-year bar. But many unsuspecting undocumented aliens are shocked to learn that there is also something loosely termed the "permanent bar." Unlike the three and ten year bars, which last for three and ten years, respectively, the permanent bar bans an alien indefinitely from the US. Unlike the 3 and 10-year bars, which provide for waivers to cancel or waive the bars, there is no waiver for the permanent bar. The closest thing to a "waiver" is the I-212, which aliens may use to apply for permission to come back to the US only after 10 years outside the US. (There is also a limited exception available related to Violence Against Women or VAWA applicants who have been abused by their US Citizen or Lawful Permanent Resident spouses.)
With respect to immigration consequences, removal from the United States is commonly regarded as the most punitive measure the US government can impose on a non-US Citizen. Depending on the circumstances of and setting in which the removal order is issued, an individual may be banned from the US anywhere from five years to permanently. If an individual is stopped and removed at the border, this may mean that he/she was the subject of an expedited removal proceeding. Individuals are deemed inadmissible for five years under these circumstances. (Note, however, that not all encounters at the border in which an alien is sent back necessarily result in an expedited removal order; sometimes, a person may accept a voluntary return.) If an individual was the subject of an Immigration Court hearing within the United States under section 240 of the Immigration and Nationality Act, and issued a removal order, he is ordinarily barred for ten years.
Starting next month (December 5, 2017), USCIS will begin implementing new policy guidance regarding extreme hardship waivers and how they should be adjudicated. The new instructions for officers, as laid out in the updated USCIS Policy Manual, is a tremendous resource for applicants looking to understand what they need to prove to have a successful hardship case. One section of the guidelines refer to "Particularly Significant Factors," that the government has determined "often weigh heavily in support of finding extreme hardship." It is important to note that the presence of one or more of these factors do not necessarily guarantee that a hardship waiver will be approved. In other words, they do not create a presumption of hardship. Nevertheless, if the applicant can demonstrate, through reliable evidence, that one or more of these factors pertain to the case, the officer should give strong consideration to them.
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.
One major area of confusion and frustration concerns priority dates for family based cases. The assignment of a priority date is extremely important in estimating when a preference based family case is ready to be adjudicated by USCIS or the Department of State. Ordinarily, it is pretty straightforward: one looks at the priority date assigned to one's case, and then consults the latest Visa Bulletin to determine how far off one's case is. Things get confusing, however, when a beneficiary's or petitioner's status changes. For example, what happens if a beneficiary gets married? Or what happens if the petitioner becomes a United States Citizen? Depending on the circumstances, a priority date may be preserved; in other cases, a priority date may be lost. Fortunately, in many situations, an automatic conversion occurs. For instance, if a child of a USC marries, the case is automatically converted from an F-1 preference based case to an F-3 case, which is for married children of US Citizens. The priority date remains unchanged, resulting in the married adult child being able to immigrate with his/her spouse and children under the age of 21 without having to have an entirely new I-130 filed. Another common scenario where a conversion also occurs is when a petitioner becomes a citizen after having filed for an adult child over 21 as a green card holder. After naturalization, the beneficiary's classification is automatically changed from F2B to F1.