Posts tagged “Immigrant Visas”

By now, you may have heard of the bombshell adjustment of status memorandum released by USCIS last week. In that memo, USCIS emphasizes that the grant of adjustment of status is “an extraordinary matter of discretion” and was not meant to “supersede the regular consular processing of immigrant visas.” While it is unclear how exactly it will be implemented or whether it will be invalidated by the courts, it is clear that, as of today, there is a new calculus in determining whether one should seek to adjust status or consular process. Any nonimmigrant – a visitor (B or ESTA/VWP), student (F), exchange visitor (J-1), professional (H-1B), business executive/manager/specialist (L-1), individual with extraordinary or distinguished ability (sciences, arts, etc.…) (O-1), athletes/cultural workers (P) religious workers (R-1) – who is located in the US and has an interest in and legal basis for immigrating through a family, immediate relative, employment or diversity lottery immigration category must consider the potential ramifications of the new memo.

It seems that every day there is a new announcement from the Department of State and the Trump Administration impacting visa issuance. It’s hard to keep up. So to try to make some sense, we have compiled the below comparative table. This table only relates to new visa issuance; it does not relate to USCIS adjudications. Visa applications that are processed are being refused either under Section 221(g) or 212(f) of the Immigration and Nationality Act. There are also some important exceptions/exemptions to these summary rules. Finally, many of these DOS policies are currently being challenged in courts. In short, the situation is very fluid. 

That is the question that consuls are greeting nonimmigrant and immigrant visa applicants with at their interviews – no matter how many years ago the incident took place. If the answer to the question about when the work started is 3 months or less, the consuls are making 212(a)(6)(C)(i) misrepresentation decisions on the spot. The consul’s accusation? When you entered the US, you lied to the airport or port inspector about the purpose of your visit – you said “tourism” or “to visit a friend” or to “visit a relative,” but because you started working within 90 days of your arrival, the consul presumes that your true intention at the time of your arrival was to work.

With the arrival of Trump, the US consulates are becoming more and more aggressive in applying the 90 Day Rule. Ciudad Juarez? Check. Buenos Aires? Check. San Jose? Check. Just in the past couple of months, we have seen these decisions from these consular posts, even for applicants who just returned to the home country to apply for an immigrant visa after having an approved I-601A waiver for spending years in the US unlawfully. The consequences are particularly devastating for immigrant visa applicants applying to join their US citizen children in the US (Category IR-5). For them, there is no immigrant waiver available and because they have expressed an intent to immigrate, they will not obtain a nonimmigrant waiver for a long time. Similarly, the consequences are devastating for those applying for an employment-based immigrant visa. Usually, they do not have a “qualifying relative” in the US – either a spouse or parent who is a US citizen or green card holder – and so are not eligible for an immigrant waiver. Even when an immigrant waiver is available, it is now taking nearly 3 years to adjudicate I-601 immigrant waiver applications.