Visa Lawyer Blog

Articles Posted in Immigrant Visas

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On August 02, 2017, Republican Senators Tom Cotton (R-AR) and David Perdue (R-GA) introduced a new Act called “Reforming American Immigration for a Strong Economy” before the U.S. Senate, otherwise known as the RAISE Act, which is a new piece of legislation that has recently been backed by President Trump.

The RAISE Act aims to overhaul the employment-based immigration system and replace it with a skills-based system that awards points to immigrants based on the immigrant’s level of education, age, ability to speak the English language, future job salary, level of investment, and professional achievements. In addition, the RAISE Act would terminate the Diversity Visa Program, which awards 50,000 visas to foreign nationals from qualifying countries, and would ultimately reduce the number of family-sponsored immigrants allowed admission to the United States. The Act intends to focus on the family-based immigration of spouses and minor children and would reduce the number of refugees allowed into the United States.

Among other things the RAISE Act would:

  • Terminate the Diversity Visa Program which awards 50,000 green cards to immigrants from qualifying countries;
  • Slash the annual distribution of green cards to just over 500,000 (a change from the current issuance of over 1 million green cards annually);
  • Employment-based green cards would be awarded according to a skill-based points system that ranks applicants according to their level of education, age, ability to speak the English language, salary, level of investment, and achievements (see below);
  • The issuance of employment-based green cards would be capped at 140,000 annually;
  • Limit the maximum number of refugees admitted to the United States to 50,000;
  • Limit admission of asylees. The number of asylees admitted to the United States on any given year would be set by the President on an annual basis;
  • Amend the definition of “Immediate Relative” to an individual who is younger than 18 years of age instead of an individual who is younger than 21 years of age;
  • Adult children and extended family members of individuals living in the United States would no longer be prioritized to receive permanent residence. Instead the focus would remain on the immediate relatives of U.S. Citizens and legal permanent residents such as spouses and children under the age of 18;
  • The Act would allow sick parents of U.S. Citizens to be allowed to enter the United States on a renewable five-year visa, provided the U.S. Citizen would be financially responsible for the sick parent.

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In the United States and across the world, a climate of fear and uncertainty has taken over our day to day lives and crept its way into the politics of the country. This climate of fear has in many ways taken shape because of our President’s harsh anti-immigrant rhetoric, the series of executive orders he has signed on immigration which aim to discourage American companies from hiring foreign nationals, and which ultimately aim to deter undocumented immigrants from attempting to cross the United States border illegally. While the United States has an interest in buying American and hiring American, the President’s stance on immigration has made the best and brightest look elsewhere for the “American Dream.” Another cause for concern is the highly publicized immigration raids taking place across the country against undocumented immigrants. What is perhaps the most unsettling for undocumented immigrants is what is yet to unfold under the Trump administration. In recent weeks, we have seen the President harden his stance on immigration for both undocumented immigrants and foreign entrepreneurs with his plan to dissolve the “International Entrepreneur Rule” and his plan to build a “wall” along the Southern border.

For undocumented immigrants who have lived in the United States for more than 20 years, and who have raised their children as U.S. Citizens, there is much at stake. Living in this climate of fear has become our “new normal.”

The reality is that many families across the country are scared to remain in the United States. Some of these families have willingly returned to their countries of origin or relocated their families to other countries altogether. Still others, are being torn apart. Gone are the days when Dreamers were not made priorities for removal.

If you came to the United States illegally or no longer have a valid status country because you overstayed your visa, or just simply don’t have a status anymore, it is very important for you to take steps to protect yourself, and to realize that you have rights in this country.

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As previously reported, the U.S. Supreme Court recently announced that the court will be hearing arguments in defense of and in opposition to the President’s controversial executive order “Protecting the Nation from Foreign Terrorist Entry into the United States,” also known as the “travel ban” in October of this year.

In the meantime, the Supreme Court has allowed some parts of the President’s executive order to take effect until it makes a final ruling later this year. This means that certain foreign nationals will be prevented from gaining admission to the United States. Today, the Department of State announced that per the Supreme Court’s instructions, the President’s 90-day temporary suspension will be implemented worldwide at 8:00 PM (EST) beginning today, June 29, 2017.

Who will be affected?

Foreign nationals from the six countries of concern mentioned in the President’s executive order, including Syria, Sudan, Somalia, Iran, Libya, and Yemen, who do not have a bona fide relationship with a person, entity (such as a religious or academic institution), or employer in the United States, will not be granted admission to the United States for a period of 90 days, beginning, June 29, 2017 8:00 PM EST, unless the foreign national can demonstrate that they have a credible qualifying bona fide relationship with a person, employer, or entity in the United States. Such individuals may qualify for a case-by-case waiver.

In addition, refugees will not be admitted to the United States for a period of 90 days, beginning June 29, 2017 8:00 PM EST, unless they can demonstrate a legitimate claim of “concrete hardship,” to be weighed against the country’s concern for its national security.

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On June 13, 2017, the American Immigration Lawyers Association (AILA) spoke with Charles Oppenheim, the Chief of the Visa Control and Reporting Division for the U.S. Department of State, to discuss current trends trends and future projections for various employment and family preference categories.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems and priority dates on the Visa Bulletin. Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence. Applicants who fall under family preference or employment categories must wait in line until a visa becomes available to them in order to proceed with their immigrant visa applications. Once the immigrant’s priority date becomes current, per the Visa Bulletin, the applicant can proceed with their immigrant visa application.

Current Trends & Future Projections:

Employment-based preference categories:

EB-1 China and India:  

The final action date imposed on EB-1 China and EB-1 India (January 1, 2012) during the month of June of 2017, will remain and is expected to remain through the end of this fiscal year.

Per Charles Oppenheim, “Due to the availability (through May) of “otherwise unused numbers” in these categories, EB-1 China has used more than 6,300 numbers and EB-1 India has used more than 12,900 so far this fiscal year.”

EB-2 Worldwide:

Good news! EB-2 Worldwide remains current due to a slight decrease in demand in the second half of May and a steady level of demand in the month of June.

Projection: Oppenheim expects a final action cutoff date to be imposed on this category in August which is expected to be significant, however this category is expected to become current again on October 1, 2017.

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In preparation for its legal showdown at the United States Supreme Court, on Wednesday, the Trump administration moved to amend the starting date of the President’s executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” an order which seeks to bar the admission of foreign nationals from Iran, Syria, Sudan, Libya, Somalia, and Yemen for a 90-day period. The Trump administration has moved to amend or change the starting date of the 90-day period of the order’s enforcement to avoid the case becoming “moot” when it reaches the Supreme Court, given that the period of the executive order’s enforcement was set to begin on March 16, 2017, and expire on Wednesday, June 14, 2017 thereafter. This 90-day period would essentially have given the Trump administration enough time to introduce enhanced security measures in its vetting of visa applicants.

Because the executive order was blocked by a federal judge from the state of Hawaii on Wednesday, March 15, 2017 (a day before the enforcement period was set to begin) with the issuance of a Temporary Restraining Order, the President’s executive order did not go into effect on March 16, 2017 as he had planned. The Trump administration’s efforts to halt the admission of Muslim foreign nationals from “countries of particular concern” and refugees was put on hold until the appellate courts ruled on the constitutionality of the travel ban.

Accordingly, the White House recently issued a memo indicating that parts of the executive order that have been placed on hold (pending litigation) cannot expire before they go into effect, and that the start date of the executive order would begin at the time the court injunctions (if at all) are lifted. In doing so, the Trump administration hopes that if the Supreme Court upholds the travel ban, the travel ban will go into effect immediately after the ruling is made.

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The United States Court of Appeals for the Ninth Circuit has dealt yet another blow to President Donald Trump’s embattled executive order entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” an order which temporarily prevented the admission of foreign nationals from six predominantly Muslim countries (Syria, Sudan, Somalia, Iran, Libya, and Yemen) and the admission of all refugees. As previously reported, the case reached the Ninth Circuit Court of Appeals, where a three-judge panel heard arguments against the President’s travel ban, brought by the state of Hawaii as well as other individual Plaintiffs.

Together, Judge Hawkins, Gould, and Paez, grilled the U.S. Solicitor General, Jeffrey Wall, representing the U.S. government, and attorney Neal Katyal, representing the state of Hawaii, concerning the constitutionality of the President’s executive order. Like the Fourth Circuit Court of Appeals, the Ninth Circuit Court once against decided against the President’s executive order, albeit for different reasons. The Ninth Circuit Court’s ruling against the travel ban is the latest in a string of court rulings rejecting the President’s executive order on statutory grounds.

In their 86-page opinion, the Ninth Circuit Court of Appeals rejected the executive order on statutory grounds, stating that the President had exceeded his executive power and made an inadequate judgment call with the issuance of his executive order. “The Immigration and Nationality Act (INA) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show,” stated the Court, referring to the nation’s system of checks and balances. The Court added “we conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.” The Court further stated that the President’s executive order is at odds with various provisions of the Immigration and Nationality Act established by Congress, including a provision that prohibits nationality-based discrimination and a provision that requires the President to follow specific protocol when setting the annual cap on admission for refugees. The lower’s courts injunction on the travel ban will remain in place until a decision is issued by the U.S. Supreme Court.

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John came to our office distraught after receiving a notice of decision from USCIS indicating that his wife’s green card application was being denied, because the evidence John had submitted with the application was not sufficient to establish his wife’s eligibility for adjustment of status. Specifically, John had failed to provide the necessary documents for the I-864 Affidavit of Support, a form that must be filed along with the green card application to show that the U.S. Citizen Spouse or joint sponsor can financially support the intended beneficiary (in this case his wife), as well as to prove that the beneficiary will not rely on the government for financial support. The I-864 Affidavit of Support is very important for adjustment of status petitions. Failure to properly complete the I-864, and provide the necessary documents to prove that the petitioner is capable of financially supporting the beneficiary will result in a denial of the I-485 Application to Register Permanent Residence or Adjust Status.

During our consultation, John, the U.S. Citizen spouse, told us that he completed his wife’s green card application himself, and compiled what he thought were the documents necessary to go along with the application. Much to his surprise, he discovered that he had not completed the I-864 Affidavit of Support correctly, and had not included the proper documentation with the application. Because of this, his wife’s green card application was being denied, even though he did indeed have the financial means to support his spouse and had the necessary documentation to prove it.

Unfortunately, John did not do his homework to research how to complete the I-864 Affidavit of Support properly, and did not understand what documents he needed to include to prove his financial ability to provide for his spouse. Like many people, John thought that it was best to save himself some money and file his wife’s green card application himself without having to pay a lawyer to complete the paperwork. He told himself how hard can it be? While it is true that many people successfully file their green card applications on their own, it is important to know that if you decide to do the application yourself, you must read the instructions of each form to be filed with the I-485 application very carefully. Failure to do so is likely to result in the denial of your application. In that sense, you may be doing yourself a disservice by filing on your own. Lawyers have the knowledge and expertise to file a green card application seamlessly.

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In response to a memorandum issued to United States consulates and embassies around the world by President Trump and his administration on March 6, consular officials at U.S. embassies around the world are now taking tougher measures to enhance security screening of U.S. visa applicants to prevent potential security threats from entering the United States. Enhancing vetting procedures are intended to target individuals from certain “countries of concern” including the six countries of concern listed in the President’s travel ban: Syria, Sudan, Somalia, Yemen, Libya, and Iran, as well as others.

Applicants for U.S. visas from “countries of concern” can expect to undergo additional vetting procedures immediately. The U.S. Department of State has been using a supplemental questionnaire called the DS-5535 since May 25, 2017 which asks both immigrant and non-immigrant visa applicants a series of detailed questions to help consular officials determine whether a visa applicant must go through enhanced vetting to determine whether the individual poses a national security threat, or other potential threat to the United States. The questionnaire has been used as a temporary emergency measure in response to the President’s March memo, which called for enhanced screening of visa applicants, and what he has called “extreme vetting” of foreign nationals admitted to the United States.

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Credit: Mathia Swasik

On May 23, 2017, President Donald Trump unveiled his controversial budget proposal “A New Foundation for American Greatness” for FY 2018 which intends to make good on his promise to crack down on illegal immigration and apprehend undocumented immigrants with a criminal record. In a message accompanying his budget proposal, the President stated, “In these dangerous times, our increased attention to public safety and national security sends a clear message to the world — a message of American strength and resolve. It follows through on my promise to focus on keeping Americans safe, keeping terrorists out of our nation, and putting violent offenders behind bars.” To that end, the President has requested an additional $2.7 billion in funding to bolster border security and immigration enforcement measures. In addition to tightening the southern border, the budget proposal seeks to prevent undocumented immigrants from receiving tax credits by requiring individuals claiming child tax credits to provide a verifiable Social Security Number valid for employment purposes.

The budget also takes aim against “sanctuary cities” throughout the United States which serve as haven communities for undocumented immigrants. One of the proposals seeks to force local governments to cooperate with federal immigration authorities by detaining undocumented immigrants in local jails, and complying with orders from immigration officials to assist federal authorities in holding and detaining undocumented immigrants for removal. Noncompliance would result in withholding of federal grants.

Although federal law requires that local governments allow employees to share information about undocumented immigrants with federal officials, local governments are not required to assist federal law enforcement in the detention process, those that do, do so voluntarily. A provision in the President’s budget proposal attempts to change this by changing federal law to force local government to comply with federal requests to detain undocumented immigrants in local jails. As part of this provision, federal grants would be disseminated only to cities complying with federal authorities.

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The United States Court of Appeals for the Fourth Circuit has handed down a ruling this morning, dealing yet another blow to the President’s embattled travel ban. The Court has refused to reinstate the President’s 90-day travel ban on Muslims from Iran, Syria, Sudan, Libya, Somalia, and Yemen and the 120-day travel ban on refugees. The Virginia court held that the President’s travel ban does not pass constitutional muster, given that it violates the establishment clause of the United States Constitution. The ruling upholds a lower court’s decision to block the President’s revised travel ban. The Fourth Circuit was forced to weigh the importance of the President’s travel ban in relation to our national security against potentially impinging on a person’s freedom of religion. In their decision, the Fourth Circuit stated that they did not believe that the President’s executive order “has more to do with national security than it does with effectuating the president’s proposed Muslim ban.”

As we previously reported, during the month of March, the President revised his travel ban after the Ninth Circuit Court rejected major portions of the travel ban declaring it unconstitutional. The President revised the travel ban hoping that the revised version would pass constitutional muster and would not be blocked by the federal courts. The revised executive order which was set to go into effect March 16, 2017, called for a 90-day travel ban on non-immigrants of six Muslim countries including Syria, Libya, Iran, Somalia, Sudan, and Yemen, and a 120-day travel ban on the admission of refugees into the United States.

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