Advance Parole: Canadian Citizens & Other Considerations

Leaving the United States, even for a brief period of time, can be extremely complicated for foreign nationals. This risk increases if an individual wishes to leave the United States while an adjustment of status (AOS) application remains pending, because that individual runs the risk of abandoning their pending AOS application. To prevent this from occurring, advance parole serves as a valid immigration document for re-entry into the United States following international travel. Only a handful of visa holders may leave the U.S. with a pending AOS application without having first acquired advance parole (i.e. individuals and dependents in valid H-1B, L, and K3/4 status). For everyone else, applying for advance parole requires several months of processing times and valid documentation. However, if you are a citizen of Canada, you may lack the proper documentation to receive approval for both advance parole and an AOS.

When foreign national arrives into the United States, Customs and Border Patrol (CBP) provides them with a copy of their arrival/departure record or Form I-94. As one of the few exceptions, Canadian citizens do not receive an I-94 upon arrival into the United States. Thus, Canadian citizens are at a disadvantage because adjustment of status requires a record of arrival/departure i.e. Form I-94. To complete the application, Canadian citizens may request an arrival/departure record through the Deferred Inspection Site. Additionally, if you do not have any evidence of your legal entry, Canadian citizens may request their arrival document through a Freedom of Information (FOIA) request.

Although citizens of Canada may enter the United States without a visa, they must obtain advance parole before leaving the United States if their application for permanent residence is pending at the time of the departure. Unless the citizen of Canada holds one of the special classes of visa excluded from the advance parole requirement, the individual will abandon their pending AOS application upon departure. If you are unsure whether you require advanced parole before you upcoming trip, please feel free to contact our office for a consultation.

Threats to Non-Immigrant Workers: USCIS Gains Deportation Referral Power

Recently, the United States Customs and Immigration Service (USCIS) released a policy memo endowing every adjudicating officer, and all USCIS employees, the power to issue a notice to appear, or NTA. With this policy change, USCIS employees may now initiate the removal and deportation of an individual that does not maintain lawful presence.

Background

Although USCIS has always maintained the power to issue an NTA, previous procedures required USCIS employees to make written recommendations for removal notices to the United States Immigration and Customs Enforcement (ICE) for certain instances of unlawful presence. However, following the Executive Order Enhancing Public Security in the United States in 2017, the Department of Homeland Security (DHS) altered many immigration related priorities. In adherence to the new DHS standards, the policy memo now allows a more streamlined and swift deportation process. For both foreign nationals and employers, this policy memo can spell big trouble during renewal processing.

 Major Changes

In addition to retaining it’s previous NTA procedures, USCIS will now issue NTAs for any of the application situations listed below, without the need to process the request through ICE.

  • Instances of reasonably suspected fraud or misrepresentation, including if an applicant misused any program related to the receipt of public benefits. (Regardless if the case is denied for reasons other than fraud, USCIS will initiate a removal request);
  • Instances of a criminally convicted or charged applicants, regardless if inadmissibility was determined by criminal record. (USCIS may also refer cases involving serious criminal activity to ICE before USCIS issues a denial of immigration benefits or NTA);
  • Instances in which USCIS denies an application for naturalization, on good moral character grounds because of a criminal offense; and
  • Instances of an unfavorable decision on an application, petition, or benefit request, in which the foreign national is not lawfully present in the United States.

Appeals & Consequences

Many foreign nationals at the mercy of the extreme backlogs encumbering USCIS face unlawful presence while waiting for an application decision. Under this new policy memo, these individuals are now at greater risk of deportation. Although aliens may appeal an NTA, the risk involved leaves many employers wary of hiring new foreign national employees or approving renewal requests. If you have any concerns about your lawful presence and or whether the policy memo effects you, please do not hesitate to call our office to schedule a consultation.

Business Visa Center: B-1 Visas Made Simple

Many companies across the country utilize the B-1 visitors’ program to bring business partners from around the globe to the United States for short term visits. This program enables companies, big and small, to collaborate with global partners and engage face to face with foreign based colleagues. To help the streamline the B-1 visa application process, the Department of State created the Business Visa Center, or BVC. For companies wishing to bring partners to the United States, the BVC serves as a hub for all things B-1.

How can the BVC help my company?

The BVC serves as a specialized information hub for the B-1 visa application process. Companies can contact the center for detailed application instructions for all clients, partners, foreign employees, and other foreign nationals associated with the company who wish to enter the United States through the short-term B-1 visa. The BVC helps companies understand specific requirements from different embassies and consulates and educates organizations about the ways in which partners can qualify for expedited interview appointments. By consolidating these inquires at the BVC, embassies and consulates are able to better focus on processing applications as they come in.  The BVC also makes large international sports events hosted in the U.S. easier, by posting events on the Department of State Intranet, allowing B-1 visa applicants to get approval in a timely fashion.

How does my company contact BVC?

Questions may be directed to the BVC email at: businessvisa@state.gov or by phone at 202-485-7675. Business hours are Monday through Friday, 8:30 a.m.-5:00 p.m. eastern time.

FOIA Requests Now Online

On May 30th, USCIS announced the launch of an online processing system, the Freedom of Information Act (FOIA) Immigration Records SysTem (FIRST). The online platform will allow users to submit, manage, accept FOIA requests online. Previously, FOIA requests only were processed through mail, fax, and email; documents were then transferred via mailed compact disc. USCIS will phase in the new processing system in the next coming months.

FOIA Requests

The FOIA allowed for greater government transparency and provided individuals with greater autonomy with their personal records. FOIA requests can be especially helpful for individuals who need a copy of their personal records, that may have been lost or damaged over the years. A FOIA request can also provide essential evidence for status renewal or adjustment of status. Files received from FOIA requests may also contain notes from adjudicating USCIS officers, which can be helpful for pending cases. Those with a coming appearance before an immigration judge will receive expedited documents if the requester presents evidence of the notice of appearance.

Benefits to Users

Through this new system, those who need to request a file permitted by the FOIA may create an account within myUSCIS to receive their file digitally. Through myUSCIS, users will receive notices regarding the status of their request. This online system will lower the associated costs of receiving and responding to FOIA requests through mail. This service is currently activated for those with myUSCIS accounts

The next phase of implementation, expected to roll out in the coming month, will feature an independent online service. Through this digital delivery option, the system will be open to all FOIA and Privacy Act requests. Once USCIS build out the digital platform, all stages of the FOIA request process will be available online (from initial request to document delivery). The announcement follows a series of initiatives from USCIS to increase paperless processing.

Dealing with a DUI/DWI: Revocation of Status

An arrest or conviction for driving under the influence (DUI) or driving while intoxicated (DWI) may mean big problem for those in the United States under a nonimmigrant visa. Once a U.S. consulate receives notice of the conviction of an alien for a DUI or DWI offense, consular officers will revoke the visa foil or “stamp.” Under most circumstances, an alien convicted of a crime with a maximum penalty of one year will undergo revocation processes. However, with DUIs and DWIs in particular, U.S. consulates may revoke a visa if “an ineligibility or lack of entitlement is suspected, or for virtually any other reason.” Meaning, those arrested, although not convictedfor DUI or DWI, may receive a notice of cancelled visa foil while consular officers determine whether a nonimmigrant is still eligible for their visa.

Visa Revocation

When a person enters the United States, they typically enter lawfully through a nonimmigrant visa stamp issued at a consulate abroad. If that individual is arrested or convicted for a DUI or DWI, the visa stamp is revoked by a U.S. consulate officer under prudential revocation. Thus, the visa foil will no longer be valid, and that individual would not be able to re-enter the U.S. the next time they travel abroad. The consulate should contact the individual once the visa foil has been revoked through email or phone. However, if the U.S. consulate is unable to contact the foreign national, the visa foil may be invalid without the individual’s knowledge making the visa ineligible for future re-entry.

Legal Status

A DUI or DWI will not change the legal status of the foreign national who has been arrested or convicted of a DUI or DWI, as long as they continue to maintain their status in the U.S. Primarily, revocation of a visa stamp impacts a foreign national’s ability to travel outside of the United States and return back using the existing visa. Therefore, those with prudentially revoked visas following a DUI or DWI must be sure to maintain their non-immigrant status.  To travel with a prudentially revoked visa, a foreign national must obtain a new visa to return to the U.S. after a trip abroad.

Social Media Screening Included in State Department Efforts towards ‘Extreme Vetting’

On March 30th, the State Department released a proposal that would greatly slow processing for all visa classifications and provide sensitive data to the State Department officials. In response to the Trump Administration policies towards ‘extreme vetting’ of foreign nationals entering the United States, the State Department announced that it would begin to screen the social media accounts of all visa applicants.

New Procedures

The proposal, if approved by the Office of Management and Budget OMB, would require those who fill out any type of nonimmigrant visa application to list all identifiers (i.e. handles, account names, etc.) used within the last five years. According to The New York Times, applicants would have to provide social media handles used for any of the following social media platforms: Facebook, Flickr, Google+, Instagram, LinkedIn, Myspace, Pinterest, Reddit, Tumblr, Twitter, Vine and YouTube, Douban, QQ, Sina Weibo, Tencent Weibo, Youku,  Twoo, and Ask.fm. The proposed changes would affect nearly 14 million foreign nationals who enter the U.S. annually for a variety of reasons.

Implications

If approved, the new screening procedures would likely slow the visa allocation processes. The data collection processes requires consular officers to collect years of data of social media content. Although the provision would not impact foreign national visitors from countries included in the Visa Waiver Program, it would impact millions of visitors annually. Many groups, like the American Civil Liberties Union ACLU, have openly opposed the new proposal because the screening procedures infringe upon the privacy and rights of foreign nationals. If the State Department receives funds for the new procedure, the change would be yet another move from the Trump Administration to curb legal immigration into the U.S.

USCIS to Destroy Returned Green Cards, EADs, & Travel Documents after 60 Days

USCIS announced recently that, beginning April 2nd, all Permanent Resident Cards, Employment Authorization Cards (EADs), and Travel Documents returned as undeliverable by the United States Postal Service (USPS) will be destroyed after 60 business days unless USCIS is contacted by the recipient. A change of address, without proper reporting to USCIS, could result in a destroyed document

Change of Address

According to the USCIS website, if a non-U.S. living in the United States moves domestically, that individual must report their change of address within 10 days. Exceptions include:

  • Diplomats (visa status A),
  • Official government representatives to an international organization (visa status G), and
  • Certain nonimmigrants who do not possess a visa and who are in the U.S. for less than 30 days.

Those not included in the above circumstance must report any change of address to remain in compliance with U.S. law. Penalties for failure to comply with reporting requirements include a fine up to $200 and a misdemeanor charge. To report a change of address, and to insure that important immigration documents are not destroyed by USCIS, non-citizens must submit a Form AR-11. The form can be completed online, or through mail. If a non-citizen opts to report their change of address through the paper method, USCIS recommends using a certified mailing system. A paper Form AR-11 will not update your address on any pending USCIS applications, so applicants must call USCIS at 1-800-375-5283 to update the address on the pending applications. The online method of reporting an address change allows users to report an address change and also to update it on the pending applications.

The announcement to destroy return documents will prove to be an added burden on foreign nationals. Although the measure ensures security, those who do not contact USCIS to report a problem with receiving sensitive documents will be greatly impacted by a destroyed green card, EAD, or other travel document.

USCIS Processing Times Gain Transparency

USCIS recently announced exciting news for those with pending USCIS cases. A new pilot website now offers a user-friendly platform that estimates the processing time for your application. The website is still in the testing stages and will first offer the service to four types of forms.

Clearer Processing Times

Several factors impact the processing time of any given USCIS application or petition. Location, type of application, backlogs, among other limitations can impact processing times by several months. With the new pilot website, those who file the following forms will have access to automated, personalized processing estimations:

  • Form N-400, Application for Naturalization;
  • Form I-90, Application to Replace Permanent Resident Card;
  • Form I-485, Application to Register Permanent Residence or Adjust Status; and
  • Form I-751, Petition to Remove Conditions on Residence.

For applicants in the above categories, the new USCIS website will provide an approximate processing date range following a series of questions regarding the circumstance of your application. The website generates a range starting with a lower bound estimation, representing the median processing time, and an upper bound estimation, representing the period of time taken to process 93% of cases. For example, an individual would check the processing time for their application for naturalization by entering their type of form (N-400), and processing center location. The website will produce an easy to read range, for example 6 months – 9.5 months, representing regional estimates for processing similar applications. This tool will allow for a more precise timeline for individuals who are often left with vague response regarding the processing time of their case.

Case Inquiries

 According to the USCIS website, the agency asks that applicants wait the entire period of the upper end estimate provided by the new website to make an “outside normal processing time” case inquiry. Drawing from the previous scenario, the individual applying for naturalization would have to wait 9.5 months after filing their N-400 before submitting a service request or contacting USCIS. 

 

Affidavit of Support for Visitor Visa (B-1/ B-2)

An Affidavit of Support can be extremely helpful in most cases, but not when it comes to B-1/B-2 Visitor Visas. If you wish to “sponsor” a friend or family for a B-1/B-2 visitor visa, filing a Form I-134 may cause more harm than good.

What is an Affidavit of Support?

A Form I-134 affidavit of support serves as a visa applicant’s evidence of sponsorship, or evidence that the applicant has financial support and will not become a public charge of the United States. The form documents the personal finances of a sponsor currently in the U.S. and provides that a nonimmigrant entering the U.S. will not become financially dependent on federal welfare programs. Given the nature of the B-1/ B-2 visitor visas, an affidavit of support is not considered by consular officers because the foreign national is not expected to be in the U.S. for an extended period.

Financial Consideration B-1/B-2 Visa

Some family members or friends mistakenly file an affidavit of support for a B-1/B-2 visa applicant due to the financial considerations within the application. The application for B-1/B-2 asks about the financial state of the person or entity financially responsible for the trip to the United States. The purpose of this inquiry is to determine whether the applicant has the financial means to afford the extensive costs of the trip. In addition, consular officers often examine the applicant’s financial information during the interview to determine whether the applicant is an “intending immigrant,” or that the applicant intends to stay in the U.S. permanently.

Affidavit of Support Could Harm B-1/B-2 Application

An application for a B-1/B-2 visa is adjudicated based on visa applicant’s qualification and eligibility. The consular officer makes a determination by focusing on, amongst other factors, applicant’s social and economic ties to his/her home abroad. Since finance is an important part of this process, we do not recommend that a family member or friend submit an affidavit of support for a B-1/B-2 visa applicant unless a U.S. consular specifically requests a Form I-134. If submitted without a request, consular officers may consider the affidavit of support as evidence of the applicant’s inability to pay for the proposed trip.

Scheduling an InfoPass Appointment: Online Services Could Soon End

InfoPass is a free online service that allows individuals to schedule an appointment with a USCIS immigration officer. The online platform offers 12 different languages to make scheduling an in-person appointment easier. InfoPass is accessible from both computers and mobile devices to make scheduling available anywhere. The appointments scheduled through InfoPass are intended for specific inquires, while routine matters are typically handled through the phone or online. Nevertheless, recent reports warn that the InfoPass online scheduler could soon be obsolete. Under the new program, the USCIS National Customer Service Center would first handle all requests for an in-person appointment.

Regional USICIS offices in Hartford, CT; El Paso, TX; Jacksonville, FL; Sacramento, CA; and San Francisco, CA may be the first centers included in the new pilot program for scheduling InfoPass appointments. Under the program, scheduling InfoPass appointments at the above mentioned USCIS field offices will now be facilitated through the USCIS National Customer Service Center. If implemented across the nation, the program would eliminate the self-scheduling InfoPass appointment feature online. The new change comes in conjunction with new efforts to increase efficiency by decreasing self-scheduled InfoPass appointments for inquiries better addressed by the USCIS National Customer Service Center or through the USCIS website.

To make an InfoPass appointment at one of the selected pilot USCIS field offices, one must now first call the Service Center (1-800-375-5283), speak to a Tier 1 officer, and request to schedule an InfoPass appointment. The call will then be escalated to Tier 2 officer who will review the case and will confirm if the issue is appropriate for an InfoPass appointment before scheduling the appointment. The reports of the new pilot program are not yet confirmed online by USCIS; however, we will continue to monitor the situation.