Presidential Memo on Visa Overstay: B-1 & B-2 Visitor Visas

The White House has released a memorandum outlining President Trump’s strategy to curtail the overstay rate for all nonimmigrant visas, with particular focus on B-1 and B-2 nonimmigrant visas. According to recent Department of Homeland Security DHS statistics, B-1 and B-2 visa overstay rates grew beyond 10 percent. President Trump has ordered the DHS to engage with the governments of countries with larger rates of overstay in the United States.

Potential Changes

President Trump’s memo suggests “suspending or limiting entry of nationals of those countries who hold B-1 or B-2 visas; targeted suspension of visa issuance for certain nationals; limits to duration of admission, to be implemented by the Department of Homeland Security; and additional documentary requirements.” As such, those nationals of countries with higher rates of overstay could be barred from entering the United States for a short stay effective immediately. The memo does not, however, clarify the types and quantity of “additional documentary requirements,” nor does the memo explain how the country suspensions would be determined by DHS officials. For countries that have only a small quantity of nationals under the B-1 and B-2 visas each year, a system based on “overstay rate” would come as an extreme disadvantage. For example, the country Chad, which had over a 30% overstay rate, had only 536 nonimmigrants come into the United States for business or pleasure purposes. Therefore, there were only a total of 165 suspected overstays during fiscal year 2018.

Similarities to Buy American, Hire American

Like the Buy American, Hire American memorandum, this recent memo out of the Trump White House seeks to increase scrutiny over problems in the immigration system. However, the memo does not present an extensive plan to fix or improve the immigration system. While the issue of overstayed visas impacts the United States, this new Trump memo may cause a lasting negative impact on current immigration.

USCIS & DHS Takedown Immigration Fraud Scheme Directed at Families

In Florida, federal prosecutors and the United States Attorney Maria Chapa Lopez announced indictment charges for Erika Paola Intriago, of Tampa, Florida. Intriago stands accused of four counts of wire fraud and three counts of wrongfully using government seals. Allegedly, Intriago posed as an immigration attorney through social media, manipulating immigrants and immigrant families from Florida to Illinois. If proven guilty, Intriago could face a penalty of 20 years for each count of wire fraud and up to five years in prison for each count of unauthorized use of governments seals.

Alleged Scheme

According to the indictment released by the Department of Justice (DOJ), Intriago posed as a licensed and qualified immigration attorney, despite holding no license to practice law in the state of Florida or any state for that matter. Intriago operated a business under the name of “EPI Services, INC” that purportedly helped assist individuals and families with all legal immigration matters. Through social media platforms like Facebook, Intriago advertised her services as a qualified legal expert in immigration matters to Hispanic immigrants around Florida. She particularly targeted vulnerable Spanish-speaking families, claiming to be a licensed immigration attorney. Victims of Intriago’s scheme needed assistance with matters before the United States Citizenship and Immigration Service (USCIS) and other agencies and payed Intriago to communicate between immigration agencies and the immigrant families both domestically and abroad. Intriago manipulated many of her victims by promising to secure her clients legal status if the victims payed through cash or money order. Intriago promised to pay USCIS fees directly, and instead pocketed the money without submitted forms or payments to the government. Intriago also stands accused of unauthorized use of government seals as a part of her scheme. Intriago would allegedly “create, copy, and affix seals of government agencies of the United States, including DHS and USCIS, to email messages, letters, and other documents created for and sent to her client-victims as purported proof that she was and had been acting on their behalf in immigration proceedings.” For some victims who had completed paperwork, Intriago either abandoned the immigration paperwork or did not inform her victims about notices of denial. Those victims who complained to Intriago were further victimized as Intriago would threaten to report undocumented clients to the U.S. Immigration and Customs Enforcement (ICE) Agency for deportation.

If you suspect someone is unlawfully posing as a licensed attorney, or you are someone or are aware of someone who is a possible victim please contact 1-866-DHS-2ICE.

I-94 Format Change: Arrival/Departure Form Number

The United States Customs and Border Patrol (CBP) updated guidance for I-94 and I-94W Arrival and Departure forms. Beginning May 2019, I-94 records will be alphanumeric, a change from the strictly numeric 11 digit system.

Depletion of Numeric-Only I-94s Codes

The record numbers for form I-94s are essential in any immigration application. While I-94 remain largely electronic, these forms are evidence of legal entry or exit into/from the United States. Those with past I-94s can access there I-94 information via the CBP website. The new system of record keeping will now involve both numbers and letters, and will remain an 11 digit code with 9 numeric digits, a letter in the 10thposition, and a digit in the 11thposition. This change will allow the CBP issue I-94 numbers for a much longer period without changing to a new coding system. Those who have a currently active form I-94 with solely numeric characters will maintain a valid I-94 until the “Admit Until Date” printed on paper copies of I-94s or as found on the I-94 website. Starting May 2019, all new I-94 form numbers will have this alphanumeric coding system.

I-94 Website

The CBP website allows foreign nationals the ability to track their current arrival status and check records of all previous arrivals and departures. To complete a new visa application, foreign nationals are required to have records of their entry, therefore the I-94 website can prove to be quite helpful. While most entry and departure records are maintained online via CBP, applicants remain responsible for finding their own records. The I-94 website provides the arrival or departure date and port of entry or exit for the passport entered through the online access forum. The records expand for only the last 5 years, and include documentation for passports that have since expired. The website does not, however, provide information for all land border arrivals/departures, closed loop cruises, or any other visa status. The website notes that the platform is only for information purposes and does not reflect a legal record of entry and exit. Eligible visa holders may use the website as a hub to check their compliance with the time terms of their visa.

Revised Form I-539 (H-4, L-2, F-2, B-1, B-2, etc.) Available March 11th

United States Citizenship and Immigration Service (USCIS) announced new changes to the Form I-539, Application to Extend/ Change Nonimmigrant Status. On the cusp of the H-1B filing season, this new change will swiftly alter form requirements for several visa petitions, including the dependents of H-1B visa holders.

Change to Form

On March 11, 2019 and beyond, all filed Form I-539 documents must reflect changes made in February, less than 30 days from the roll out. Those who submit older versions of the Form I-539, without a revision notation of 2/04/19, will receive a rejection. The new form includes requirements that every applicant and co-applicant pay a $85 biometrics fee. This requirement extends to all children, regardless of age (e.g. H-4 dependents, L-2 dependents, F-2 dependents). The change comes without a grace period nor a 90-day period for public comment.

Those dependents must sign and submit a separate Form I-539A, available on the USCIS website on March 11. The Supplement A form will no longer be available, and each individual dependent or co-dependent will submit a separate form. Parents or guardians may sign forms for those under the age of 14 or for any co-applicant who is not mentally competent to sign. All applicants and co-applicants must pay the $85 biometrics fee unless included in the exemptions to be listed on the USCIS website come March 11th. USCIS notes that “Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number.” These non-immigrant applications will now require these applicants and co-applicants to complete biometric screenings.

USCIS Introduces Online Fee Calculator

Regardless of the visa application, calculating total fees for filings can be a hassle. But what many don’t realize is that an improperly calculated fee payment would result in rejection of the complete application thereby leading to a longer application process. This tedious process has left many with rejected applications due to citing and submitting the incorrect or incomplete total filing fee. To amend this, USCIS now offers a free Online Fee Calculator to assist those filing their forms through a USCIS agency lockbox facility.

Calculating Fees

From the Immigrant Petition for Aliens Worker (Form I-140) to Applications for Naturalization (Form N-400), applications and petitions for citizenship and immigration benefits require payments to fund processing costs. While a significant sum, these fees enable USCIS to operate as the service almost entirely relies on application and petition fees. Often these fees change to adjust to changing processing costs and inflation. Through the new online calculator, applicants and petitioners can find out the exact filing and biometric fees required for their particular application. The Online Fee Calculator is up to date, and reflects any recent adjustments to fees. The online calculator matches up-to-date filing fees with the forms selected by the drop down menu found on the website. By selecting your form, the fee calculator will either present you with a flat fee rate, or if you filing fee varies, prompt additional information to determine your category or age group. Those who wish to file concurrent forms can multiple form calculations to receive a total filing amount. However, the tool does not currently offer a feature to calculate fees for multiple individuals. Once users have responded to the questionnaire, the Online Fee Calculator will include biometric fees, if necessary, as well as the total fee amount. This total represents the amount that should be filed with applications and petitions submitted to USCIS.

Improper Fees

Each year, USCIS processes millions of applications and petitions. Those which require fees are sometimes submitted with out-of-date and incorrect payments. Those applications are automatically rejected. For those filing at Lockbox facilities, checks, money orders, and credit card payments for applications may include the incorrect fee total. With the new Online Fee Calculator, applicants can rest assured that their fee payment is up-to-date to avoid rejections.

Government Shutdown: EB-5 Program & Immigration Agencies

In the absence of congressional authorization, the EB-5 foreign investors visa program was set to end on December 21st of 2018. However, following the government shutdown that began on December 20th of 2018 and continues into the 2019, the United States Citizenship and Immigration Service (USCIS) announced that the future of the EB-5 program will remain pending until funding legislation passes in Congress. However, the shutdown will not drastically impact other application processes for visa benefits.

Impact on EB-5 Applications Prior to December 21st

USCIS notes that any Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, will not be accepted as of December 21st. Those Form I-924 applications still pending will remain on hold until funding is either allocated or denied to the EB-5 program. USCIS notes that it will continue to accept regional center-affiliated Form I-526s,  Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status submitted before close of business on December 22nd. However, the aforementioned applications will remain on hold until the end of the government shutdown.

Additional Visas Impacted

As reported during the last government shutdown, most vital functions of the United States government will continue while the government is shutdown. In particular, the US Customs and Border Patrol (CBP) will continue to function at ports of entry. Therefore, foreign nationals need not cancel travel plans abroad during the shutdown. The US Citizenship and Immigration Service (USCIS) will additionally remain open during the shutdown. Thus, any applications or petitions that include fee processing, will continue to be processed through the shutdown (e.g. adjustment of status, etc.). Visa processing services provided by US consulates, and managed by the Department of State, will also continue while the government is shutdown. The Department of Labor, which received funding in September of 2018, will continue Labor Condition Application processing. Although these essential government agencies will remain open during the shutdown, it is unclear when the shutdown will end, and whether programs like the EB-5 visa program, will continue into 2019.

Planning Travel to the United States: ESTA 72 Hour Minimum

During one of the busiest travel seasons of the year, it is important to take note of strict time cut offs for applications for entrance into the United States. Those eligible to enter into the United States through the Visa Waiver Program (VWP), in particular, should apply for Electronic System for Travel Authorization (ESTA) at least 72 hours before departure to avoid any possible entry denials. Maintaining awareness of important deadlines will prevent any unnecessary delays to entry.

ESTA Eligibility

The VWP allows citizens from several eligible countries to enter the United States without a visa for up to 90 days for either business of pleasure. Eligible countries include countries within the European Union, Chile, Taiwan, and many more. Those who wish to enter through the VWP must not be currently in possession of a visitor’s visa and must hold a valid passport. As of 2018, the fee for ESTA is $14.

ESTA Purpose

Since the early 2000s, the ESTA program has enabled the Department of Homeland Security to gather important security information about travelers entering the United States from both air and sea. Previously, ESTA application processing was allowed on the same day of travel. However, to increase security and processing efficiency, all applications should be submitted three days before departure. Those that attempt to apply the same day of departure could be denied authorization to enter the United States, and therefore will be unable to board their flight. To avoid any mishaps, Customs and Border Patrol suggests applying for ESTA at the time of booking your flight. Once submitted and approved, applicants may check the status of their ESTA or make any changes if necessary. Families traveling to the United States may file group applications and pay all required fees through the ESTA application management system. If you have any questions about assisting family members traveling to the United States, or require assistance yourself, please feel free to request a consultation.

DHS Proposed Rule: New Changes to Public Charge Inadmissibility

The Department of Homeland Security (DHS) has released a new proposed rule which would outline the ways in which the agency determines a foreign national is inadmissible due to risk of becoming a public charge. Foreign nationals who wish to enter the U.S. or adjust their immigration status must provide evidence of financial stability, and establish that they will not become a ‘public charge,’ or dependent on government assistance, during their stay. Public charge inadmissibility does not, however, currently apply to naturalization proceedings or other protected classes of nonimmigrants. The new proposal seeks to require foreign nationals seeking extensions of status or adjustment of status “to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits.” The new proposal seeks to more clearly define the term ‘public charge’ for the purpose of determining admissibility.

Major Changes

The proposed rule would change current standards for determining admissibility due to the risk of becoming a future public charge. Additionally, DHS would define the types of public benefits that make a foreign national subject to public charge inadmissibility while including a designated threshold of benefits allowed for all nonimmigrants receiving such benefits. DHS also seeks to make it more difficult for current foreign national public charges to gain approval for a change of status or extension of stay application. The rule would apply to all individuals seeking to adjust their status to that of a lawful permanent resident. However, USCIS notes that “lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.”  

Those seeking entrance as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles would be excluded from inadmissibility based on likelihood of public charge. Those applicants with “financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines” or those applicants with an income larger than 250 percent of the Federal Poverty Guidelines, are more likely to be excluded from inadmissibility on the ground of public charge status.

Digital Border Search Under Federal Scrutiny: CBP

Last month, a federal suit brought forth new questions surrounding individual property rights at the U.S. border. Two months ago, an American woman filed a federal suit against the Department of Homeland Security after Customs and Border Patrol (CBP) agents seized her smartphone upon return to the United States and made copies of the data found on the device. Rejhane Lazoja, a Muslim-American woman, asked a federal judge to compel border officials to erase all data copied from her iPhone following the February seizure. On October 30th, Lazoja was granted her request when DHS settled the case by deleting all of Lazoja’s data collected by CBP. However, the lawsuit sheds new light on the continued uncertainty surrounding digital property rights at the border.

Border Doctrine

Unlike inside the U.S., CBP officers may search and seize property from individuals entering the country without a warrant. This “border doctrine” allows CBP officers to take property, including cellular devices, without approval from a judge. At the border, CBP agents may seize cellphones for an extended period of time, during which data is collected from the electronic device. In the case of Lazoja v. Nielson, the plaintiffs stated that the “seizure, retention, and any sharing of [Rejhane Lazoja’s] property without reasonable suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth Amendment of the U.S. Constitution.”

Although Lazoja received her cellphone 130 days after re-entering the U.S., DHS retained data collected from her device, including confidential correspondence with Lazoja’s attorneys. By retaining the American woman’s property for a period longer than 120 days, without a warrant or reasonable suspicion, the representatives for Ms. Lazoja argued that her Constitutional rights had been violated. Although the case was settled before adjudication, the problem surrounding data seizure, and retention, at the border remains. CBP maintains full discretion to seize and copy data from electronic devices belonging to individuals crossing the border, regardless of their citizenship status. As CBP agents become more strict under the direction of President Trump, there may be a rise in property and data seizures in the coming months.

CBP Issues Travel Reminder: Departure Date

This year, the United States Customs and Border Protection (CBP) launched a new electronic reminder system for foreign national travelers. The new emailing system sends reminders to travelers about the period of time remaining for their particular travel visa. Not only does the email reminder system help travelers keep track of their period of stay, the CBP email reminder will provide notifications for travelers who have overstayed their period of admission.

Email Notification

Within 10 days of the end of a traveler’s admissions period, travelers may receive email notifications from CBP counting down the remaining days left of their stay in the United States. If a traveler overstays, they will continue to receive notice of an overstay violation. In addition to email notifications, travelers may refer to the I-94 website to check their compliance with period of stay limitations. Via the website, travelers may click the “view compliance” tab and enter their personal information to receive updates on their remaining period of stay.

Phishing Warning

Phishing, or email scams, are forms of electronic correspondence that attempt to exploit online users through false email correspondence. Often, travelers receive fake emails from users pretending to represent the federal government of the United States. These emails may falsely notify travelers of urgent notices to their period of stay. Never provide your personal information to an online source claiming to represent the CBP unless you are sure the notification is legitimate. Email notifications should come only from travelerscompliance@cbp.dhs.gov. As fraudulent emails are quite common, it is always advised to check the email address of any notification sent by an official agency.

Stages of Notification

CBP will gradually launch the new travelers notification system. Certain Visa Waiver Program (VWP) recipients are the first to receive email notice from CBP, and most classes of admission will soon be added to the notice system.