Visa Lawyer Blog

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Earlier this week, in a 407-19 vote the House of Representatives successfully passed the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, a bill that seeks to increase restrictions for travelers coming to the United States under the Visa Waiver Program, a program which currently allows citizens from 38 designated countries to travel to the United States without a visa. In order to become law the bill must also pass through the Senate. The bill was introduced following President Barack Obama’s address to the nation, in which he confronted the threat of the Islamic State of Iraq and the Levant (ISIL) and the recent terrorist attacks in Paris and San Bernardino.

In his address, President Obama pledged to work closely with the Department of State and Homeland Security to revise the visa waiver program, under which one of the San Bernardino assailants traveled to the United States. The Problem? The President misspoke—the assailant traveled to the United States with a K-1 fiancé visa and not through the visa waiver program. Instead Obama meant to say that he would work with the DOS and DHS to revise the visa program in general. In light of this innocent mistake, the House continued its support to tighten the visa waiver program, despite the fact that no evidence has been presented suggesting that terrorists and/or their radicalized accomplices have traveled to the United States using this program. This would mean that the government is concerned that terrorists, disguised as refugees, may travel from Syria and surrounding countries, into Europe and in the process acquire European citizenship making it easy for them to travel to the United States through the visa waiver program. The government may also be concerned that ISIL is radicalizing and recruiting European citizens of middle eastern descent to their cause.

As it stands there are no middle eastern countries participating in the visa waiver program. The majority of the countries eligible to participate are from Western Europe with few exceptions including Chile, Taiwan, Australia etc. Individuals who have applied for a United States visa but have been denied, are not eligible to travel to the United States under the visa waiver program, even if their country participates in the program. Such individuals must apply for the appropriate visa at a US embassy or consulate abroad in order to travel to the United States. Critics allege that as a result of such legislation, consular officials and CBP agents will inevitably profile visa waiver travelers.

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Tashfeen Malik, a Pakistani citizen, and her husband Syed Rizwan Farook, a naturalized United States Citizen, are known globally as the couple behind the San Bernardino shootings, which took the lives of 14 people and left 21 injured. Twenty-eight-year-old Syed Farook was identified as an environmental health services inspector employed by the San Bernardino County Department of Public Health. He was attending a holiday party at the Inland Regional Center where he worked. Reports confirm that a dispute occurred between Syed and an attendee of the party causing Syed to leave the party. He later returned with his wife Tashfeen dressed in tactical gear carrying assault weapons and semi-automatic pistols. Days after the attack, it became known that the assault was inspired but not directed by the Islamic State of Iraq and the Levant (ISIL), the terrorist group which claimed responsibility for coordinated attacks that occurred in Paris just last month. Through a radio message disbursed online, ISIL confirmed that the duo were indeed supporters of the group praising them for their efforts, but stopping short of taking credit for the attack. The FBI has since confirmed that the couple had been ‘radicalized’ for some time before the actual attack took place, though it is not clear how the couple became radicalized, how they rehearsed the attack, and whether the couple maintained ties to any other terrorist organizations. It is known that Syed and his wife Tashfeen had visited gun ranges in the Los Angeles area for target practice just days before the December 2nd assault at the Inland Regional Center, a social services facility located in San Bernardino, California where Syed was employed.

Investigations have revealed that Syed and Tashfeen met one another on a Muslim dating site a couple of years ago. The relationship flourished, and eventually Tashfeen Malik obtained and entered the United States legally on a K-1 fiancé visa. Last year, Tashfeen became a United States lawful permanent resident through her marriage to Syed, a naturalized citizen. In response to the recent terror attacks around the world and the Syrian refugee crisis, President Obama delivered a rare address to the nation from the Oval Office yesterday evening declaring the San Bernardino massacre an “act of terrorism designed to kill innocent people.”

In his address, President Obama outlined his administration’s four-tier strategy to defeat ISIL and discussed necessary measures that must be taken by Congress to bring about legislation that will protect our country from extremism and combat the war on terror. Such measures include the following:

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Yesterday, December 2, 2015 the state of Texas brought suit against the federal government and the International Rescue Committee (IRC), before the United States District Court in Texas Health and Human Services Commission V. United States et al., 12/2/15. In its suit, the state of Texas claims that the federal government and the IRC acted unlawfully in their attempt to resettle Syrian refugees without prior consultation and direct cooperation with the state of Texas, as required by federal law. The lawsuit was brought by the Texas Health and Services Commission (THSC) representing the interests of the state of Texas in court. The THSC is an agency responsible for the administration and development of the refugee resettlement program in Texas. The state of Texas discovered in a phone call with the IRC that the Committee intended on resettling 6 Syrian refugees in Dallas, Texas on December 4, 2015 without consent. On December 1, 2015 Texas addressed the Committee in a letter requesting a halt to the resettlement of Syrian refugees until the state would receive security assurances and discuss proper screening procedures for said refugees. The IRC responded on December 2nd that it would continue the resettlement process as planned resettling the refugees in Texas.

Refugee Resettlement Program

Texas administers the refugee resettlement program along with the assistance of local government agencies responsible for the financial costs associated with the refugee’s resettlement and transition to the state of Texas.  In order to accomplish its endeavors, all federal and state agencies must adhere to strict framework’s established by the Refugee Act of 1980, which require collaborative and cooperative efforts between all entities involved in the process of refugee resettlement. According to Texas, “instead of adhering to that statutory framework, the federal government and the Committee have left Texas uninformed about refugees that could well pose a security risk to Texans and without any say in the process of resettling these refugees.”

Arguments for the state of Texas

In its suit, Texas aims to re-assert its sovereignty and obligation to protect the safety of its residents. Texas claims that the government’s failure to adhere by the law has raised legitimate security concerns involving potential complicity between refugees and terrorists.

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Last week, in a 289-137 vote the House of Representatives overwhelmingly voted in favor of a bill that would require a comprehensive background check to be conducted for every Syrian and Iraqi seeking refugee admission to the United States. Among its provisions, the bill, better known as the American Security Against Foreign Enemies Act of 2015 (American SAFE Act of 2015) will require supplemental certifications and background investigations to be conducted before a Syrian or Iraqi refugee can be admitted to the United States. These additional security protocols will require multiple federal government agencies to work together in order to determine whether 1) such an alien poses a threat to the national security of the United States and 2) whether it is in the public interest of the United States to admit the alien based on the findings of the security checks conducted. The bill received overwhelming support from Democrats and Republicans alike amid the recent terrorist attacks claimed by ISIS leaving 129 dead and 353 wounded in the city of Paris. Though the bill will need to pass through the Senate before it can become law, the House’s overwhelming support for the bill has blocked the President from using his veto power.

Specifically, the bill will apply only to Syrian and Iraqi nationals referred to in the bill as ‘covered aliens.’ A covered alien means any alien applying for admission to the United States who is either a) a national or resident of Iraq or Syria b) has no nationality but whose country of last habitual residence is Iraq or Syria c) has been present in Iraq or Syria at anytime on or after March 1, 2011.

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Yesterday night, in a 2-1 vote the United States Fifth Circuit Court of Appeals voted to uphold the lower court’s decision in Texas v. United States blocking President Obama’s extended Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs from going into effect.

The expanded DACA and new DAPA provisions were announced November of last year as part of Obama’s executive actions on immigration giving eligible undocumented individuals a legal status in the United States. The expanded DACA program would have made millions of law abiding undocumented aliens (with no criminal history) eligible for employment authorization and social security benefits. To qualify, expanded DACA applicants would need to provide documented evidence proving their continuous physical presence in the United States from January 1, 2010 onward. In exchange, the United States government would recognize these individuals as law abiding residents and safeguard them against deportation. The move was significant since it would mean that undocumented individuals would no longer need to live on the fringes of society. By granting these individuals an immigration classification, insurance companies would become accessible to them for the first time ever.

Similarly, Obama’s DAPA program would have extended eligibility of deferred action to parents of US Citizens and Lawful Permanent Residents born or or before November 20, 2014 the date of the DAPA program’s announcement. As part of the application process, DAPA applicants would be required to undergo extensive background checks and prove continuous residence since January 1, 2010 among other provisions. Click here for more information on DAPA.

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Secretary of Homeland Security Jeh Johnson

On October 28, 2015 sixteen Democrats from the House of Representatives including —Zoe Lofgren, Michael M. Honda, Judy Chu, Katherine M. Clark, Elijah E. Cummings, Anna G. Eshoo, Tulsi Gabbard, Luis V. Gutierrez, James A. Himes, Ruben Hinojosa, Eddie B. Johnson, James P. McGovern, Frank Pallone Jr., Jared Polis, David E. Price, and Alma S. Adams — issued a letter addressed to the Secretary of Homeland Security, Jeh Johnson concerning drastic revisions made to the Visa Bulletin on September 25, 2015.

In the letter, House Democrats argue that the revisions to the Visa Bulletin have compromised the integrity of the immigrant visa process, and resulted in a lose of faith in our immigration system. More over they argue that these revisions have adversely impacted the lives of thousands of immigrants, the American businesses who employ highly skilled workers, and our economy which benefits from retaining highly skilled workers.

As previously reported, the Department of State had published a dual chart system on September 9, 2015 with the addition of a new ‘date of filing chart’ which first appeared on the October Visa Bulletin. This new ‘date of filing’ chart was implemented in an effort to modernize and streamline the immigration process, as part of President Obama’s executive actions on immigration reform.

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It is our pleasure to bring you the latest in immigration news including recent USCIS announcements, workload updates, tips, and important reminders to avoid delays in application processing or rejections. For more information please contact our office.

Comment Period for Proposed USCIS Form Revisions:

The Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) have proposed changes to the following USCIS forms. DHS and USCIS invite the general public, organizations, and federal agencies to submit comments on the proposed revisions by the deadlines outlined below:

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Senate

On October 20, 2015 Democrats in the Senate successfully blocked the Republican backed bill S. 2146: Stop Sanctuary Policies and Protect Americans Act from moving forward with a vote of 54-45. At its core, the bill aimed to hold sanctuary jurisdictions accountable for noncompliance of federal orders including detainment of undocumented immigrants, increasing penalties for individuals caught re-entering the United States after their removal, and providing protection to state and local law enforcement officials cooperating with federal law enforcement officials. The bill was introduced by Republicans after an act of violence took the life of a San Franciscan woman at the hands of an alleged undocumented immigrant with a felony record, who had also been the subject of multiple removals. Public outcry ensued after the city sheriff released the perpetrator despite a federal immigration detainment order. According to Republicans, San Francisco is one of hundreds of sanctuary cities that refuse to comply with federal immigration orders to facilitate the detainment and removal of undocumented immigrants.

Among its provisions, the bill aimed to crackdown on so called ‘sanctuary cities’ notorious for their noncompliance by limiting government funding. By cutting necessary funding, Republicans hoped that this would force cooperation between local law enforcement officials and federal law enforcement officials including ICE officers. Republican Senator Vitter who introduced the bill, argued that the violent crime that occurred in San Francisco was just one example highlighting the magnitude of compliance concerns. According to Vitter, ‘sanctuary cities’ like San Francisco have repeatedly refused to comply with orders of detainment issued by the Department of Homeland Security. Prior to the vote, the White House had warned Senate Republicans that if the bill did pass with the 60 necessary votes, they could expect the President to veto the bill. Although the bill was criticized by Democrats for stereotyping undocumented immigrants and making sweeping allegations against the undocumented immigrant community, the bill raises serious competence and compliance concerns.

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The Gillard Government made a commitment in 2010 to release all children from immigration detention by June 2011, but still 1000 children languish in the harsh environment of immigration camps around Australia. The Refugee Action Collective organised a protest on July 9, 2011 outside the Melbourne Immigration Transit accommodation which is used for the detention of unaccompanied minors.

In the federal register released on October 16, 2015 President Barack Obama announced refugee admission numbers to be allocated for fiscal year 2016, based upon Section 207 of the Immigration and Nationality Act and Congressional oversight.

According to the federal register, up to 85,000 refugees will be granted admission to the United States during fiscal year 2016 in the national interest and as a result of growing humanitarian concerns in Africa and the Near East/South Asia, regions where the majority of admission numbers have been allocated—a total of 59,000 altogether.The 85,000 cap will be distributed among specified regions that pose special humanitarian concerns to the United States. Africa is to be allocated 25,000 admissions; East Asia, 13,000; Europe and Central Asia, 4,000; Latin America/Caribbean, 3,000; Near East/South Asia, 34,000; and 6,000 refugee admissions will remain unallocated in order to address regions where future necessity may arise.

The 6,000 unallocated refugee admissions will be allocated according to ‘regional ceilings’ that will be imposed by Congressional Judiciary Committees as needed. In addition, unused refugee admissions in one region may be transferred to other regional areas of concern as needed.

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Photograph taken at Ellis Island

Further changes have been made to the November Visa Bulletin published earlier this month by the Department of State. The dual chart system remains in place including the ‘final action date’ chart and ‘date of filing’ chart. So what has changed? USCIS has become more involved in the application process for family-sponsored and employment-based immigrant applications since the introduction of the date of filing chart. A disclaimer has now been added to the November Visa Bulletin above the date of filing chart which instructs applicants to visit the USCIS website for more instructions on how and when the chart is to be used. USCIS has created this new web page to notify applicants whether they can proceed with applications for permanent residence based on the date of filing chart published monthly on the Visa Bulletin. The website will be updated within about a week of the publication of the Visa Bulletin every month. The webpage is intended to provide applicants information in regards to visa availability for family-sponsored and employment-based immigrant visas for each fiscal year, letting applicants know whether the filing date chart is enforceable. So far, USCIS has indicated that the filing date chart for October and November 2015 is enforceable.

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