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Lee & Garasia, LLC
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Visa Issues Archives

New Tourist Visa Rules Will Ban Some Pregnant Women

Last Friday, the Department of State published its final rule implementing new regulations regarding "birth tourism." Effective now, the new rule amends how and whether B nonimmigrant, or tourist, visas are issued, particularly to those who may be pregnant. The new language clarifies that applying for or entering on a tourist visa for the primary purpose of granting a child US citizenship (via birth in the US) is not within the scope of permissible activity for a visitor's visa. Pleasure may refer to legitimate activities such as sightseeing, amusement, visiting friends/family, even medical treatment-but not to give birth in the US so that the infant becomes a US citizen. This latter practice has become common enough that national security and law enforcement concerns are now implicated.

Even More New Questions for Visa Applicants

Immigrant visa applicants should be aware that that the DS-260 was quietly revised to incorporate some new questions in addition to the social media question which we previously discussed in July of this year. The DS-260 is the electronic application that all individuals applying for immigrant visas must fill out. In addition to going over basic biographic information as well as a battery of security questions, the form now inquires into the following:

New Financial Rules For Visa Applicants Coming

Last week, USCIS's plan to implement its new public charge rule and forms, including the dreaded I-944 Declaration of Self Sufficiency, was stymied by a temporary injunction blocking the revised guidelines. However, the nationwide ban only applied to adjustment of status cases inside the US. It technically did not prevent the Department of State from going forward with its own set of public charge rules published in an interim final rule that closely tracked the changes made by the Department of Homeland Security, scheduled to take effect October 15, 2019. (The Department of State regulates and oversees consular cases, that is, those cases which are scheduled abroad at US embassies around the world.) Fortunately, the Department of State recently announced that procedures would remain as is, for the time being, until approval of a new form which it will be requiring, has been secured. However, lest there be too much excitement, the new form, which will apply to consular cases, will likely be very similar and just as onerous as the I-944, which promises to be a nightmare for intending immigrants here in the US. We will obviously explore the I-944 in a future article, but applicants should be aware that a credit report will be required as well as inordinate documentation relating to the applicant's financial status.

Consulate Will Deny Visas to Immigrants Without Health Insurance Plan

On October 4, 2019, President Trump issued an immigration related proclamation that will affect nearly all family-based cases being processed abroad once it goes into effect. Titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System," the order directs immigrant visas to be denied to individuals who cannot demonstrate that they will be covered by approved health insurance within 30 days of the alien's entry into the United States or unless the individual possesses the financial resources to pay for reasonably foreseeable medical costs. What this essentially means, in layman's terms, is that immigrants who cannot prove that they are covered by health insurance or have financial means to pay for their medical costs will be barred from entering the US.

New U Visa Policy | I-918 Application Will Not Stop Deportation

This month, Immigration and Customs Enforcement announced an important policy change pertaining to enforcement against individuals who have filed for protection under the U visa program. The changes are formalized in Directive 11005.2 and summarized in a Questions and Answers Fact Sheet issued by the agency on August 2. In a significant reversal of the former practice, ICE officers are no longer required to interact with USCIS to request a prima facie determination of eligibility for U status before executing a removal order against an individual who has lodged a Stay of Removal. Effective immediately, ICE officers and attorneys are now accorded a wide berth of discretion to determine what action to take against such individuals. Enforcement are to consider the totality of circumstances, including both positive and negative factors; the beneficial impact of an applicant's assistance to law enforcement; and whether a temporary reprieve from removal is appropriate-all this without input from USCIS, which is in charge of adjudicating the U visa application. As a consequence, a sizeable population of U visa applicants with outstanding removal orders but who have legitimate pending U visa applications, may be expeditiously removed notwithstanding that they may have meritorious, approvable cases.

Emergency Travel Outside of US While Green Card Case Pending

With few exceptions, leaving the United States while a green card case is pending can be fatal to one's case. In general, departure from the United States without an advance parole document normally results in a denial of the adjustment of status petition. USCIS will determine that the individual has abandoned the application. Moreover, in some cases, if an applicant has overstayed and accrued too much "unlawful presence," he or she may trigger a three or ten-year bar from returning (depending on the length of the unlawful presence). So, in most cases, if an individual foresees that he/she will need to travel outside the US during the pendency of an adjustment of status case, advance parole should be strongly considered.

New Question on DS 260 on Visa Form About Social Media

Applicants for immigrant visas may be surprised to see a new question on the electronic DS 260 application pertaining to social media. As of May 31, 2019, the immigrant visa application (and reportedly the electronic DS 160 nonimmigrant visa application as well) now feature arguably invasive questions requesting information regarding social media platforms used within the last five years. Applicants are requested to list their usernames (or "handles") for the following sites/apps/programs:

Will New Jersey Drunk Driving (39:4-50) Affect H-1B Stamping?

This is a very common question that we deal with in the ordinary course of our business. Unfortunately, it is also one that is extremely complex and heavily dependent on a number of factors, including but not limited to the nature of the offense; one's immigration history; as well as one's criminal history. In general, in this climate, any arrest-even for offenses which may not be deportable-can potentially have an impact on one's immigration stay here.

New Version of I-539 Application to Change or Extend Status Coming

USCIS recently announced plans to update Form I-539, Application to Extend/Change Nonimmigrant Status. This change is particularly important to any foreign national currently here on a temporary basis who is intending on changing or extending his/her status. Apparently, the form has already been revised but will not be released until the same day the changes become effective, which is March 11, 2019. As of that date, any applications to change/extend non-immigrant status must be filed on the latest version. USCIS will not accept previous editions of Form I-539 and accordingly reject applications with the older version or applications that are missing required signatures or filing fees.

NJ State Police May Not Inquire Into Immigration Status

On November 29, 2018, New Jersey Attorney General Gurbir Grewal drew a proverbial line in the sand by issuing a new directive that clearly demarcates criminal law enforcement from federal civil law compliance. Under Directive 2018-6, which supersedes Attorney General Ann Milgram's obsolescent 2007 directive, law enforcement is essentially instructed to limit cooperation with federal authorities unless such assistance furthers state criminal law enforcement. As the Attorney General makes clear: "New Jersey's law enforcement officers protect the public by investigating state criminal law offenses and enforcing state criminal laws. They are not responsible for enforcing civil immigration violations except in narrowly defined circumstances. Such responsibilities instead fall to the federal government and those operating under its authority." As such, the directive sets forth important new parameters under which law enforcement may or may not interact with the Department of Homeland Security when dealing with foreign nationals in New Jersey.

PROFESSIONAL RECOGNITION

    • Avvo Rating 10.0 | Superb
    • Client Distinction Award martindale.com | 2016 Martindale-Hubbell Client Distinction Award
    • New Jersey State Bar Association | Paris Lee Chair - Immigration Section 2015-2016
    • Nationally Recognized | Newsweek Nationwide Showcase | Top Attorneys 2013
    • New Jersey Chapter | American Immigration Lawyers Association | Angie Garasia | Chapter Chair 2015-2016
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