Visa Lawyer Blog

Articles Posted in Permanent Residents

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In this post, we discuss the top five reasons applicants are denied at their citizenship interview.

First let’s go over some basics:

In order to become a United States Citizen, you must meet the following general requirements at the time of filing your N-400 Application for Naturalization:

 

You must be:

  • A lawful permanent resident
  • At least 18 years of age
  • Maintained continuous residence in the United States since becoming a permanent resident
  • Be physically present in the United States
  • Have certain time living within the jurisdiction of a USCIS office
  • Be a person of Good Moral Character
  • Have Knowledge of English and U.S. Civics with some exceptions outlined below
  • Declare loyalty to the U.S. Constitution

As part of the citizenship interview, applicants must pass a civics and English test in order to receive United States Citizenship. The Civics test is an oral examination provided in the format of Question and Answer by an immigration officer in which the officer tests your knowledge of United States history and government. During the Citizenship interview, the USCIS officer asks the applicant up to 10 out of 100 civics questions provided by USCIS on their website as part of the study material for the examination. Applicants must answer 6 out of 10 questions correctly to pass the civics portion of the naturalization test.

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On Friday, March 30, 2018, the Department of State published a 60 day notice in the Federal Register entitled “Notice of Proposed Information Collection: Application for Immigrant Visa and Alien Registration,” proposing to require immigrant visa applicants to submit five years of social media history as part of the information requested on the DS-260 Immigrant Visa Electronic Application used by applicants to schedule Immigrant Visa interviews at U.S. Embassies and Consulates worldwide. The DS-260 is an Electronic Form that is completed by immigrant visa applicants and used by consular officials to determine whether the applicant is eligible for an immigrant visa.

Specifically, the Department wishes to, “add several additional questions for immigrant visa applicants. One question lists multiple social media platforms and requires the applicant to provide any identifies used by applicants for those platforms during the five years preceding the date of the application.”

Information provided by immigrant visa applications relating to their social media will be used to enhance “vetting” of applicants to verify their identity, ensure that they meet all visa eligibility requirements, and to prevent individuals from entering the country who pose a threat to the county’s national security, or have been associated with a terrorist organization.

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Andrew, a real estate professional and Vice President of a large real estate firm headquartered in Asia, came to our office to discuss the possibility of filing for an EB-2 National Interest Waiver. To receive a national interest waiver, the applicant must demonstrate a high level of achievements and unique skills pertaining to their position to justify a waiver of the requirements of a job offer and labor certification filing.

The challenge in Andrew’s case was the absence of demonstrated achievements in the real estate business, and various non-disclosure agreements the client had signed restricting the documentation he could provide to demonstrate his exceptional ability in the industry, based on the high net worth projects he had worked on in the real estate industry. There were however other strengths that Andrew possessed that would qualify him for the national interest waiver. Andrew possessed a law degree from his home country, a master’s degree in taxation, a master’s degree in real estate from an ivy league university, and he was licensed to practice law in the United States. In addition to possessing these advanced degrees, two of which were received in the United States, Andrew’s career in the real estate sector spanned nearly 21 years.

The difficulty however remained in that Andrew did not have many documents to present to USCIS demonstrating his achievements as an entrepreneur and real estate investor, and the projects he was working on could not be disclosed based on the confidentiality agreements he had signed. Our experienced staff and attorneys decided that the best strategy in Andrew’s case was to highlight his education and vast experience in the industry having maintained high level positions in the industry, leading international real estate teams, heading overseas real estate and property management implementation strategies across various continents, and initiating/implementing domestic real estate acquisition projects totaling more than $4 billion in investment. We are happy to report that our strategy was successful and Andrew’s national interest waiver was recently approved. Here is how we did it.

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Beginning April 1st New Delhi Will No Longer Process IR1/CR1 or IR2/CR2 visas

The U.S. Department of State announced via their website that the U.S. Embassy in New Delhi will no longer process IR1/CR1 visas for spouse of US Citizens or IR2/CR2 visas for unmarried minor children of US Citizens beginning April 1, 2018. Foreign nationals who are in the process of obtaining an IR1/CR1 visa or IR2/CR2 visa with an interview that has been scheduled on or after April 1, 2018, will have their interview at the U.S. Consulate General in Mumbai. We recommend that petitioners be on guard for any letters from the National Visa Center specifying the location of the intending immigrant’s interview, as well as details about how to prepare for the interview stage.

President’s DACA Deadline Passes

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personal-3108155_128038035946756_590b28ab9a_zIt did not take long for President Trump to capitalize on the terrorist attack which took place several days ago in New York City, to attack the Diversity Visa Program and the process by which US Citizens, and in some cases green card holders, can petition for extended family members to immigrate to the United States.

Following the terrorist attack in New York City, which claimed the lives of 8 Americans, the President fired off a series of tweets calling on Congress to terminate the Diversity Visa Program, claiming that the perpetrator of the attack, Sayfullo Saipov, had gained admission to the United States seven years ago through the diversity immigrant visa program, a congressionally mandated program made possible by section 203(c) of the Immigration and Nationality Act (INA). According to CNN, the Department of Homeland Security has said that Saipov came to the United States in 2010 on a diversity visa. Department of Homeland Security archives confirm that Uzbekistan was a country participating in the Diversity Visa program as early as 2007, and continues to participate in the Diversity Visa Program.

The Diversity Immigrant Visa Program

The Diversity Immigrant Visa program is a program enacted by Congress, which allocates up to 50,000 immigrant visas per fiscal year to a special class of immigrants known as “diversity immigrants.” Each fiscal year diversity applicants register for the visa program electronically at no cost. Applicant entries are selected at random through a computerized “lottery” system to allocate the 50,000 available immigrant visas for the Diversity Immigrant Visa Program. Only diversity immigrants who are natives of countries with historically low rates of immigration to the United States qualify for the Diversity Immigrant Visa program. In other words, to qualify for a diversity visa, essentially a green card, you must be a native of a country participating in the diversity visa program. Countries with historically high rates of immigration to the United States DO NOT qualify.

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On October 17, 2017, federal judge Derrick Watson of the U.S. District Court for the District of Hawaii, issued a temporary restraining order preventing the government from enforcing Sections 2(a), (b), (c), (e), (g), and (h) of the Presidential Proclamation 9645, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” signed by the President on September 24, 2017. These sections of the Presidential Proclamation were to be enforced at 12:01 a.m. eastern daylight time on October 18, 2017.

As a result, foreign nationals from Chad, Iran, Libya, Syria, Yemen, and Somalia will NOT be affected by the restrictions outlined in the Presidential Proclamation and may continue to travel freely to the United States. Visa applications for these countries will continue to be adjudicated in accordance with existing immigration law, and visa processing standards, irrespective of the restrictions outlined in the Presidential Proclamation.

However, the court order does not prevent the government from implementing restrictions on foreign nationals from North Korea and Venezuela. In addition, the order does not prevent the government from scrutinizing the adjudication of visas for Iraqi nationals and their admittance to the United States. Sections (d) and (f) of the Proclamation, outline the provisions that remain in force. Restrictions on the entry of foreign nationals from North Korea, Venezuela, and Iraq began on Wednesday, October 18, 2017 and will continue until further notice. The restrictions on Venezuela as you will see below are the most lenient of the restrictions. 

Restrictions on North Korean nationals: Entry of foreign nationals from North Korea has been suspended for all immigrants and non-immigrants (including diversity visa holders).

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In a continuing saga, the President is maintaining his hardline stance on immigration, this time expanding into the realm of legal immigration. Earlier this month, the Department of State released an amended version of the Foreign Affairs Manual (FAM) used by governmental agencies and other federal agencies as a manual, which directs and codifies information that must be carried out by respective agencies “in accordance with statutory, executive and Department mandates.”

The new amended version of the manual expands the definition of misrepresentation, the types of activities that may support a presumption of fraud, and establishes changes to existing policies that federal agents must follow in making assessments of fraud or material representation.

The manual sets out a list of activities which may support a presumption of fraud or material representation by an individual applying for any immigration benefit:

  • Engaging in unauthorized employment;
  • Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
  • A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
  • Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Old Rule: Previously, the rules set out by the Foreign Affairs Manual and USCIS imposed a presumption of fraud on persons who entered the United States with a non-immigrant visa type (e.g. as a tourist, business visitor, student, trainee etc.) and subsequently married a U.S. Citizen and applied for adjustment of status within the first 30 days of entering the United States.

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On September 24, 2017, the President issued a Presidential Proclamation expanding the list of countries subject to the travel ban outlined in Executive Order 13780 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” As you may recall, as part of that executive order, in March 2017, the President had asked the Secretary of Homeland Security and Attorney General to conduct a worldwide review to assess the dangers that foreign nationals from designated countries of concern pose to the national security of the United States. Under Executive Order 13780, DHS was directed to implement additional security mechanisms and vetting procedures for countries identified as potential threats to national security.

The Secretary of Homeland Security, Secretary of State, and Attorney General identified 16 additional countries which “remain deficient . . . with respect to their identity-management and information-sharing capabilities, protocols, and practices,” and as a result pose a potential threat to our country’s national security.  By proclamation, the entry of foreign nationals from eight of these countries will remain suspended and limited for the time being.

The President has determined that the immigrant and non-immigrant entry of foreign nationals from the following countries would be detrimental to the national interests of the United States, at least until increased security mechanisms can be implemented, and identity and information-sharing capabilities can be improved.

Per Section 2 of the Proclamation

Suspension of Entry for Nationals of Countries of Identified Concern

“The following countries continue to have “inadequate” identity-management protocols, information-sharing practices, and risk factors . . . such that entry restrictions and limitations are recommended:”

The entry of foreign nationals from the designated countries listed below will be suspended and limited to a few exceptions and case-by-case waivers beginning October 18, 2017.

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Now is a good time to file your green card application. Significant wait times are expected given a new policy passed by the Trump administration that will require in-person interviews for LPR applicants filing based on employment sponsorship

In yet another controversial move, the Trump administration has recently adopted a new policy change that will require an in-person interview for individuals wishing to obtain lawful permanent residency based on employment sponsorship. The new policy will be implemented beginning October 1st.
Previously, foreign nationals applying for permanent residency, based on employment sponsorship, were not required to attend an in-person interview, although this allowance was discretionary. In recent years, the in-person interview requirement was typically reserved for individuals applying for permanent residency based on a qualifying familial relationship, and not for individuals applying based on employment sponsorship.

A USCIS spokesperson announced the new policy change on Friday August 25th, a change that will delay the process of obtaining a green card significantly, given the increased number of individuals that will be required to attend an in-person interview. According to USCIS this change in policy will apply to any individual adjusting their status to legal permanent residency from an employment-based visa category.

What’s more, family members of refugees or asylees, holding a valid U.S. visa, will also be required to attend an in-person interview when applying for provisional status.

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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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