Last Friday, President Trump issued another proclamation suspending entry of certain foreign nationals. This latest salvo is directed, in particular, at certain Chinese nationals attempting to enter the US on F-1 student visas or J-1 visas. At first blush, the order appears to restrict such visas to all Chinese nationals, but upon closer reading, is narrowly tailored towards Chinese nationals associated with organizations or entities that implement or support China's military civil fusion strategy. Military fusion strategy is further defined as actions "by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC's military capabilities." Subject to certain exceptions, the order covers any Chinese individual seeking to enter on an F-1 or J-1 to study or conduct research and who "either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of an entity in the PRC that implements or supports" China's military fusion programs.
When applying for permanent residence, it is critical to understand and distinguish between the two different agencies charged with processing green card applications. In general, after a petition is approved-whether though family or employment-an applicant must choose whether to pursue consular processing or adjustment of status (assuming that one's priority date is current). Put simply, consular processing refers to a process where an individual appears for an interview at a US consulate abroad. These types of cases are handled primarily through the Department of State through the National Visa Center, which collects certain documents and forms before forwarding them to the US consulate. In contrast, the adjustment of status procedure takes place inside the US. The case is filed with and adjudicated domestically by USCIS.
This past April, President Trump issued his immigration proclamation suspending the entry of Immigrants into the US for sixty days. We covered the salient points in earlier posts. However, unless you have read the order in its entirety, you may not realize that the order was only the first volley of what may turn out to be a series of immigration related restrictions prompted by the COVID-19 crisis. In fact, even before this proclamation was issued, the Center for Disease Control (CDC) had already issued an order on March 20 suspending the entry of certain persons from where outbreaks exists. The effect of that order virtually expels individuals traveling from Canada or Mexico who would otherwise be processed at Port of Entry and Border Patrol stations. As a result, people traveling from those countries without proper travel documents or who have entered without inspection-even with meritorious refugee claims-will be summarily denied entry out of public safety concerns.
Last week, USCIS quietly released for comments a proposed revision of the Affidavit of Support Form. The changes are purportedly to align with and have the forms better reflect the priorities emphasized in President Trump's Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens. The revisions will apply to Forms I-864, I-864EZ as well as I-864A for Household Members. All forms will incorporate new language clarifying and explaining to the sponsor what his/her obligations are (the affidavit is technically a legal contract) as well as legal consequences if the obligations are not met.
Now that President Trump's Executive Order is out, we now know the breadth and extent of its mandate. Fortunately, it does not appear as draconian as the President touted when he initially tweeted the pronouncement. The order does not ban or suspend all immigration. And as mentioned in our previous blog, the consulates are currently closed anyway due to COVID-19, so there is little practical effect to the proclamation at this time. It is when consulates start resuming operations that we will see whether the order has its intended effect.
Just this week, President Trump declared via twitter at 10:06pm Monday night, that he would be suspending all immigration into the US. This fiat will presumably be implemented through an Executive Order--which as of now, has yet to be released-so there are naturally many unresolved questions. At this point, no one (arguably even staffers within the Administration) knows the extent or breadth of the forthcoming order, ie., whether it will provide "carve outs" (or exceptions) for certain classes such as medical and agricultural workers, or whether it will impose a blanket bar on all foreign nationals including but not limited to spouses, children and siblings of US Citizens and Lawful Permanent Residents. It is conceivable that all non-US citizens, including green card holders may come under the scope of the interdiction. Litigation will likely ensue once the order is put out and the issue will be whether President Trump is within his powers to declare such a moratorium on immigration, which is statutorily provided for in the Immigration and Nationality Act. At issue will be the President's power under INA 212(f), which provides, in part:
Despite mass closures of businesses and organizations around the nation, many government agencies remain open and operational. Fortunately, USCIS is one of them. To be clear, previously scheduled in-person appointments at all USCIS offices remain canceled through May 3, 2020. However, USCIS is still processing cases and applications despite the moratorium on public interviews. What this essentially means is that applicants who were intending on filing for status extensions, especially if time sensitive, should by all means considering doing so. As of this writing, there is still no formal policy granting forbearance or automatic extensions to those whose authorized periods of stay are due to expire, even if an individual desires to leave in good faith but cannot (ie., flight canceled or the person or close relative sick with corona symotoms). If a person overstays on his/her visitor's visa, not only will the visa be automatically canceled but the person will begin accruing unlawful presence, which can potentially bar future entry into the US. Similarly, those whose conditional permanent residence are due to expire also need to apply within the ninety-day timeframe. Conditional permanent residents should not assume that they will be given extra leeway or time in which to file the remove conditions. If the I-751 is not timely filed, a conditional permanent resident's status will be revoked and he/she will, at some point, be referred to immigration court proceedings. (Fortunately, with respect to Requests for Evidences and Notices of Intent to Deny, USCIS has announced that applicants will be given extensions in which to file responses for notices received between March 1, 2020 to May 1, 2020.)
The COVID-19 crisis has unquestionably affected all aspects of our society, resulting in shutdowns across the country and closures of important government agencies including but not limited to many immigration courts and USCIS offices. We have been receiving frantic phone calls from individuals who are here on non-immigrant visitor's visas as well as ESTA. They are understandably concerned what their options are if they are not able to safely depart to their countries and end up staying past their authorized period of stay.
In light of the COVID-19 public health crisis, all USCIS field offices, asylum offices and Application Support Centers (ASCs) have discontinued in-person services until April 1, 2020. This includes interviews of all kinds, from naturalization examinations to applications for adjustment of status; citizenship oath ceremonies; and even fingerprint or biometric appointments. If you currently have an interview scheduled for this month, you should be receiving a letter from USCIS descheduling it in light of this new policy. Obviously, any interviews that have been canceled will, at some point, be rescheduled for a different date and time, but it may be some time before individuals receive notices of their new interviews. Additionally, no one knows how long this crisis will last and how government-ordered (federal, state, and local) restrictions and closures will impact operations.
USCIS recently revised their Policy Manual on Naturalization to further address the legal effect of absences outside the US. This guidance particularly affects green card holders who have traveled outside the United States for more than one year and who are now applying for citizenship. The government's Policy Alert reminds the public that absences outside the US for one year or more automatically breaks the continuity of residence, one of the fundamental requirements for citizenship. This is true even if the individual possesses a re-entry permit, since the permit only preserves the individual's permanent residence (in general, a green card holder who travels outside the US for one year or more, uninterrupted during a single trip, will be deemed to have abandoned his/her residence here.) If such an individual wishes to apply for naturalization, he/she must wait a minimum of at least 4 years and 1 day.