On the first of September, the Department of State (DOS) released new guidelines, published in the Foreign Affairs Manual (FAM), for the term “misrepresentation” for the purposes of deciding grounds for inadmissibility. Misrepresentation of intent to enter the US or receive a visa presents grounds for inadmissibility under INA. The new announcement eliminates the DOS 30/60 rule, which outlined whether a consular officer could presume that an applicant lied about their intentions based on actions that occurred after the applicant entered the US. Now, “conduct inconsistent with status” that occurs within 90 days of entry into the US, will be presumed as a purposeful misrepresentation of intent, creating grounds for inadmissibility.
Old 30/60 Rule
Previously within a period of 30 days, immigration officers assumed that any distortion of truth on applications for visas or entry into the US regarding the foreign national’s basis for admission was a purposeful misrepresentation of intent for visa. For example, if a non-immigrant entered the US on a visitor visa (like a B-1/B-2 visa ) and enrolled into an educational institution within 30 days of arrival or got married and filed an application for adjustment of status, the government previously assumed that the foreign national misrepresented their motive for entry. Under the old guidelines, inconsistent conduct that occurred between 30-60 days was not misrepresentative of the foreign national’s intent at application, but the conduct was eligible for investigation by an immigration officer.
New 90-Day Rule
The new FAM guideline extends the period of assumed misrepresentative intent to 90 days. Consequently, those who are in the US under the US Waiver Program, which allows admittance for a period of 90 days, are assumed to have willfully misrepresented intent if the file and application for change or adjustment of status. Those entering in a B-1/B-2 status or any other non-immigrant visa will also face a similar scrutiny. Under the new provision, consular officers are to presume misrepresentative intent for the entirety of the 90-days. If conduct occurs more than 90-days after entry or approval for US visa, the applicant is not presumed to have willfully misrepresented intent on their application.
The new FAM timeline presents an issue for many non-immigrants who have a pending application for adjustment or change of status. The new 90-day rule will not affect applicants on a dual intent visa like H-1B. However, if a foreign national changes status within 90 days of arrival, they may be at a risk of inadmissibility. It is noteworthy to remember that accusations of misrepresentation on an application for a visa or entry in the US is refutable. It is important to receive consultation before changing or adjusting status during the period of 90 days since under the new policy the consular offer may presume misrepresentation at any time, even after 90 days of entry, if the facts of the case support such a determination. This new policy, being broader than the previous one, would result in increased misrepresentation findings which under INA may make an individual permanently inadmissible to the US.
A foreign national’s legal status at the time of a change, extension, or adjustment of status can influence the outcome of an immigration matter. An error in maintaining legal status may prevent the foreign national from receiving the desired immigration benefits. It is important to understand your current legal status and how it may determine your chances for change, extension, or adjustment of status.
Lawful Nonimmigrant Status
Foreign nationals in lawful nonimmigrant status possess an unexpired arrival/ departure form (I-94) issued by the U.S. Citizenship and Immigration Service (USCIS) or U.S. Customs and Border Protection (CBP). A valid I-94 by itself does not grant a valid status. Foreign nationals must also maintain lawful status by adhering to guidelines set by their visa classification. For example, H-1B visa holders must maintain employment with their petitioning employer during the period of I-94 validity. Failure to satisfy visa regulations will result in a loss of lawful nonimmigrant status.
Period of Authorized Stay
If an application to request change or extend status is filed on behalf of an foreign national before his/her status expires, the foreign national may be in a “period of stay authorized by the Attorney General.” A good example of this would be where a petition to extend the H-1B is filed on behalf of the foreign national before his/her I-94 expires and the petition remains pending with the USCIS awaiting adjudication, after the expiration of the I-94.
A nonimmigrant maintains a period of authorized stay as long as the application is still pending a decision even though, under certain circumstances, they may fall out of status. If the USCIS eventually approves the pending application or petition for extension or change of status, the foreign national retroactively transitions into status.
Similarly, those with a pending application for adjustment of status without the underling non-immigrant status are generally in period of authorized stay while the application for adjustment of status is pending with the USCIS.
Out of Status & Unlawful Presence
Foreign nationals not in period of authorized stay or not maintaining lawful nonimmigrant status are considered unlawfully present in the U.S and maybe out of status. A good example of unlawful presence would be a scenario where a foreign national with an expired I-94 card continues to be present in the U.S. Such a foreign national would accrue unlawful presence from the date their I-94 expired, and would be subject to re-entry bar after departing the U.S. Unlawful presence for a period longer than 180 day will result in three-year ban from the U.S. If the person was unlawfully present for a period of one year or more, then the person is banned from the U.S. for a period of ten years. It is important to understand the subtle distinction between out of status and unlawful presence. A person with a valid I-94 who fails to maintain his/her status is out of status through not unlawfully present in the U.S. (hence not accruing the unlawful presence inadmissibility bar). However, it would be hard for them to obtain future immigration or visa benefits.
For foreign nationals with a timely filed application or petition for extension, change, or adjustment of status, the unlawful presence begins on the denial date. Foreign nationals who are out of status or unlawfully present, are subject to removal from the U.S.
It is imperative to understand your status before applying for extended stay or adjustment of status. The complexities between lawful status, out of status, period of authorized stay, and unlawful presence greatly impact the immigration process. If you have any question regarding your legal status, feel free to contact our office to schedule a consultation.
Over the years, copies of important records and documents are lost or damaged. A FOIA request can help restore lost copies and provide evidence of immigration history, which is necessary for status renewal or adjustment of status. Those seeking records may also benefit from obtaining access to materials of adjudication from previous cases (like notes from USCIS officers). Accessing these materials may aid in expediting pending or future immigration cases.
How to Make a FOIA Request
There are a variety of ways to request documents under FOIA, however the process may be difficult to navigate. Each request for an immigration document is filed through the agency designated to that particular record. For example, one must request an A-file (alien file) through USCIS by submitting a Form G-639, while CBP processes requests for I-94 records. It may take a long time before a request is processed. A high-volume request may take longer to process than a more directed request that require only a few documents, so the timeline of each request varies drastically.
Records NOT Covered Under FOIA
The Freedom of Information/ Privacy Act does not allow for complete access to all documents held by government agencies. FOIA contains 9 exceptions that include protections of individual privacy, national security, and trade secrets. If an immigration case is currently under investigation by a federal agency, like the FBI, the documents and records will not be public under FOIA.
It is crucial to possess required records and documents for your immigration case. FOIA facilitates freedoms of information, but in a complex and convoluted manner. It can be difficult to know which documents you need, and from what federal agencies. Sharma Law Offices can assist you with navigating your FOIA request for records.
Losing a passport with a valid visa, particularly in a foreign country, is always a huge setback especially for those who are on a short vacation and must return to the U.S. to resume their employment or to attend school. Irrespective of the care one takes to guard important documents, every year many passports are stolen. If you notice that your passport containing a U.S. visa is either missing or stolen, it is important to follow these steps to obtain new documents.
File a Police Report
As soon as you realize your documents are missing, go to your local police station and report the loss. According to the U.S. Department of State, it is necessary have a copy of the police report detailing the missing or stolen passport to re-apply for a new passport & visa.
Report Missing Passport to Your Native Country
Obtaining a new passport will depend on your country of citizenship. Most countries have websites that assist in the reporting of a lost or stolen passport. You can contact your local embassy or consular section for your country of citizenship for more information regarding replacement of the lost documents.
Report Missing Visa U.S. Embassy Abroad
Contact the consular section of the U.S. Embassy or consulate abroad that issued your visa. Provide the office with as much identifying information as possible (Name, Date of Birth, Place of Birth, U.S. address, etc.) and indicate whether the visa was lost or stolen. Make sure you include any documentation of your original passport and visa (i.e. Digital scans of original documents). Once you have reported your lost or stolen visa, that visa will no longer be valid for travel to the United States. Even if you later find your misplaced visa, you must apply for a new visa at the U.S. Embassy or Consulate.
Reapply for U.S. Visa
You cannot replace your lost or stolen visa in the United States. To replace your lost visa, you must apply in person at a U.S. Embassy or consulate abroad. You will need to have documentation of your lost or stolen visa, including a copy of your police report.
It is important to keep track of all important travel documents to prevent future issues. It is highly recommended that one should have a copy of one’s passport and visa as it would help the consulate locate the information in a timely manner.
Starting October 1, the U.S. Citizen and Immigration Service (USCIS) will require in-person interviews for adjustment of status (AOS) applications (I-485) based on employment (e.g., Form I-140) and refugee/asylee relative petitions. Under the direction of the January executive order “Protecting the Nation From Foreign Terrorist Entry Into the United States”, USCIS director James W. McCament hopes the interviews will preserve the “integrity” of the nation’s immigration system.
A History of Inefficiency
The required interview is not an altogether new procedure for immigration benefit applications. The USCIS has the power to mandate or waive an in-person interview for AOS applications. Overtime, USCIS officers found that the protocol slowed application turnaround without significantly aiding in fraud investigation. Therefore, AOS applications based on employment and refugee/asylee relative petitions generally received an interview waiver from USCIS officers. However, the current administration’s focus on “extreme vetting” led the USCIS to impose stricter guidelines for even the most transparent applications.
Longer Wait Times
Applicants with an employment based visas, among others, will now have to wait longer to obtain their green cards. In 2015, nearly 122,000 people transitioned from an employment based visa to a green card. For many of these cases, applicants received approval for lawful permanent residency within a period of six months. Soon, the new interview requirement will create backlogs within USCIS that will slow the application review process. USCIS’s increased workload following new “vetting” standards will decrease efficiency, and prevent many from obtaining approval for AOS applications in a timely manner.
Expanding interview requirements will not “improve the detection and prevention of fraud”. Instead, the new guidelines will make it difficult for legitimate applicants to receive green cards. The October implementation of the EO will create gridlock within the USCIS.
If you have questions regarding adjustment of status issues, please contact our office to schedule a consultation.
Travel to United States just became easier for citizens of India. In July, U.S. Customs and Border Protection (CBP) announced that India would be added to the list of approved Global Entry countries. According to the CBP, the Global Entry program allows expedited clearance for pre-approved, low risk travelers upon arrival in the United States. For approved travelers entering the U.S., Global Entry means reduced wait times in designated airports.
What are the benefits of Global Entry?
Global Entry is available at major U.S. airports and select international airports. Approved travelers can skip paperwork and long processing lines, and check in directly with a Global Entry kiosk. However, CBP retains the right to further inspect Global Entry travelers when entering the United States. Travelers enrolled in the Global Entry program can also benefit from TSA pre-check, which allows travelers to move quickly through security lines.
How Do I Get Global Entry Approval?
Besides U.S. citizens and U.S. legal permanent residents, only citizens of Colombia, the United Kingdom, Germany, Panama, Singapore, South Korea, Switzerland, Mexico, and (as of July) India are eligible for Global Entry. To be approved, you must create a Global Online Enrollment System (GOES) account and complete the online application. The application process includes: a non-refundable fee of $100, a thorough background check, and an in person interview at a Global Entry Enrollment Center. Additional requirements apply depending on country of origin. For citizens of India, applicants must:
Nonimmigrants who are found ineligible for admission (inadmissible) for entry into the U.S. are permanently barred from entering or remaining in the U.S. Generally, an inadmissible individual can seek entrance on a temporary basis with an Immigration and Nationality Act (INA) §212(d)(3) nonimmigrant visa waiver. This waiver is available to foreign nationals who have been found inadmissible due to various reasons, including criminal convictions, medical grounds, and immigration violations. Eligible applicants can find the waiver useful if they can overcome the grounds of inadmissibility as listed in the INA (exceptions are related to foreign policy and association with Nazi persecutions).
Normally, the waiver is accompanied by a nonimmigrant visa (e.g. H-1B, L1, tourist visa, or student visa). An individual needing a nonimmigrant waiver will file the waiver request at the time of applying for a nonimmigrant visa at an U.S. embassy or consulate. If the consular officer supports the approval of the waiver, s/he would submit his/her recommendation along with the waiver request to the U.S. Customs and Border Protection (CBP) Admissibility Review Office (ARO). The ARO reviews the waiver recommendation and submits a response to the consular post.
If the consular officer does not recommend an applicant for a waiver, the applicant can still proceed with the submission and request the consular officer to forward the waiver application. The consular officer will submit the waiver along with his/her case summary to U.S. Department of State (DOS) Visa Office (VO). If the VO determines that the waiver should be granted, it will forward the waiver request to ARO for final adjudication. It is noteworthy to remember that the consular officer may submit a recommendation to DOS against the waiver with a summary of reasons for the objection to a favorable grant of waiver.
If a nonimmigrant visa has been obtained or is not required, then the waiver can be applied at a U.S. port of entry. For waivers submitted directly to CBP, instead of submission through a consulate, Form I-192 Application for Advance Permission to Enter as a Nonimmigrant has to be completed. For cases involving U visas or T visas, the waiver can be applied through U.S. Citizenship and Immigration Services (USCIS).
It is at the immigration officers’ discretion to grant or deny the waiver application. However, there are three main factors that the officers will consider: (1) the risk of harm to society in admitting the applicant; (2) the seriousness of the acts that caused the inadmissibility; and (3) the importance of the applicant’s reason for seeking entry.
Current processing times for waivers filed with a U.S. consulate is up to 90 to 180 days. For waivers submitted directly to the CBP, processing times can be up to 150 to 180 days. Please note that the processing times are estimates and actual processing times may vary depending on an individual’s case and/or ARO’s caseload.
Waivers are useful and an important solution for many individuals who are found inadmissible. However, filing the waiver application does not mean the waiver request will be granted; it is a complex, lengthy, and discretionary process. Feel free to contact our office to learn more about eligibility and submitting a §212(d)(3) nonimmigrant visa waiver.
U.S. Customs and Border Patrol (CBP) agents have the broad legal authority to conduct searches at the border and Port of Entry (POE). Unlike police officers who need search warrants, CBP can conduct searches “without individualized suspicion” as stated in CBP’s policy. U.S. citizens, lawful permanent residents, and visitors alike are subjected to CBP searches, including searches of electronic devices and social media accounts.
In light of heightened national security interests and border protection, the Supreme Court has upheld CBP’s right to conduct warrantless searches without any suspicion as “reasonable” and an exception to the 4th Amendment. In this digital age where cell phones, laptops, and other electronic devices, contain private information, including photos, contacts, and messages, the warrantless search is rather intrusive, particuarly when it is done without much justification by the CBP agent.
A secondary issue to the warrantless searches is CBP’s access to the individual’s social media accounts. CBP started collecting identifiers (search words) to view one’s public information in 2016. However, American Immigration Lawyers Association (AILA) reported that it has seen instances where CBP agents requested login information so they can view private messages. Homeland Security Secretary John F. Kelly said officials were considering a policy that would allow CBP agents to ask refugees and immigrants for their social media login information.
Speaking to The New York Times, a CBP spokesman reported that CBP agents inspected 4,444 cellphones and 320 other electronic devices in 2015. The number rose to 23,000 in 2016. America Civil Liberties Union (ACLU) reported that it has seen an increase in the number of people who said their electronic devices have been searched.
One can refuse to consent to a search, but that does not stop CBP from forcing him/her to unlock the device, detain him/her until s/he consents, arrest the him/her, seize the device and release the person, or for nonimmigrants, refuse their admission into the U.S. There are ways to prepare before traveling. Suggestions from ACLU include:
traveling with as little data and as few devices as possible. The less you’re carrying, the less there is to search. Consider using a travel-only smartphone or laptop that doesn’t contain private or sensitive information. You could also ship your devices to yourself in advance. (Be aware that CBP claims the authority to search international packages so it is best to encrypt any devices that you ship.) Keep in mind that a forensic search of your device will unearth deleted items, metadata, and other files.
storing sensitive data in a secure cloud-storage account. Don’t keep a copy of the data in your physical possession, and disable any apps that connect to cloud-based accounts where you store sensitive communications or files. (There’s no articulated CBP policy on whether agents may click on apps and search data stored in the cloud. While this kind of warrantless search should be well outside the government’s authority at the border, we don’t know how they view this issue.)
uploading sensitive photos on your camera to your password-protected laptop or a cloud-storage account. Digital cameras don’t offer encrypted storage, so you should consider backing up your photos and deleting them from your camera and reformatting the camera’s memory card.
On August 12, 2015, the U.S. District Court for the District of Columbia issued a decision in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security vacating the Department of Homeland Security’s (DHS) 2008 rule which extends the duration of optional practical training (OPT) for eligible STEM students. However, the court stayed the effect of its ruling until February 12, 2016 – allowing DHS a 6-month window to remedy the defect the court found fatal to the 2008 rule as enacted.
By way of background, in 2008, DHS promulgated the regulation at issue which extended the period of OPT by 17 months for F-1 foreign nationals with a qualifying STEM degree. Prior to the 2008 regulation, a foreign national F-1 student could only be authorized for 12 months of OPT, which had to be completed within 14 months following the student’s completion of h/her course of study. Accordingly, the 2008 rule allowed F-1 STEM students to engage in a maximum 29 months of OPT.
Broadly stated, the Washington Alliance of Technology Workers (an association representing U.S. STEM workers) challenged the validity of the 2008 rule alleging it impermissibly circumvented H-1B caps by authorizing foreign nationals to work in STEM fields without complying with the labor certification and prevailing wage requirements of the H-1B program.
In addressing this claim, the court found DHS was within its discretionary authority delegated by Congress under the Immigration and Nationality Act (INA) to allow foreign students to engage in employment for practical training purposes. Therefore, the DHS reasonably interpreted the operative provisions of the INA in forming the 2008 OPT STEM rule.
However, in vacating the 2008 rule, the court determined DHS erred in issuing the rule without the requisite notice or public comment period(s) normally required of a federal executive branch agency (unless impracticable, unnecessary, or contrary to the public interest) before enacting such a regulation.
In so finding, the court found unpersuasive DHS’ argument that it was necessary to issue the rule without the inherent delay of notice and comment in order to forestall a national fiscal emergency occasioned by F-1 students (in expiring OPT status) being forced to leave the U.S. but for the 17 month extension.
Fortunately, the court recognized immediate annulment of the 2008 rule would cause a substantial hardship for foreign students and a major labor disruption for the tech sector. Therefore, the court stayed the effect of its order until February 12, 2016, so that DHS can submit the 2008 rule for proper notice and comment.
Do not hesitate to contact Sharma Law Offices if you have any questions regarding your status as it relates to STEM OPT and this important decision. We will continue to monitor DHS’ response to the decision in the coming months.
Interfiling – also referred to as “conversion” or “transfer” – is a process where a foreign national seeking to adjust status can change the underlying immigration petition (most often an I-140 employer sponsored petition or an I-130 family based petition) forming the original grounds for the I-485 adjustment of status application. Rephrased, interfiling permits the foreign national to substitute the first petition with another category of petition during the pendency of an I-485 application.
Some benefits of interfiling include avoidance of multiple filings and attendant fees should an applicant’s circumstances change in a manner which would otherwise require additional applications. Interfiling also provides an alternative strategic means to reach permanent residency more quickly or more advantageously in certain situations.
One example where interfiling has historically proven advantageous occurs when a foreign national obtains an approved EB-3 labor certification and I-140 petition and correspondingly submits an I-485 application to adjust status to legal permanent resident based on a visa number current and available at the time of filing. However, due to retrogression, the I-485 application cannot be approved because the visa number is no longer available at the time of adjudication.
In the above scenario, the I-485 cannot be approved because, in order to adjust status to that of legal permanent resident, an EB-3 immigrant visa number must be current and available to the applicant both at the time of filing the I-485 application and at the time of adjudication. Sometimes, a visa number current and available at the time of filing becomes unavailable at the time of adjudication due to retrogression. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available. If, at the time of the I-485 adjudication, an applicant’s priority date no longer meets the cut-off date published in the applicable Visa Bulletin (due to retrogression) his/her case must be held in abeyance until a visa once again becomes available.
Sometimes, however, the foreign national (through additional job experience or an advanced degree) obtains an approved EB-2 labor certification through the employer during the pendency of the EB-3 case. Interfiling allows our hypothetical applicant to “convert” or “transfer” the pending I-485 application from the existing approved EB-3 I-140 petition to the more recently approved EB-2 I-140 petition such that the applicant does not have to file and pay for another I-485 application.
The interfiling further requests the pending I-485 application be adjudicated using the EB-3 priority date but according to the availability of EB-2 visas. Therefore, the previous EB-3 I-140 petition is replaced with the newly approved EB-2 I-140, while keeping the earlier EB-3 priority date. As a result, the I-485 application can be granted if the retained EB-3 priority date is current in the EB-2 visa category at the time of the interfiling.
As one can see – while interfiling can be a very effective strategy for an accelerated or more beneficial path to permanent residency – there are many variables to consider dependent on the nature of one’s case and circumstances. It is therefore advisable to consult an experienced immigration attorney to determine if interfiling is a viable option. The professionals at Sharma Law Offices, a highly rated immigration law firm in Atlanta, are happy to speak with you regarding interfiling and other immigration matters.