Posts Tagged ‘department of state’

The Heightened Vetting of Legal Immigration Applicants

Saturday, March 3rd, 2018 by W. Scott Railton

The Administration is moving forward with its goal to increase vetting of all applicants for immigration benefits. We’re seeing this play out in a number of immigration settings. The most immediate effects we are seeing are longer delays for applications. Higher request for evidence and denial rates are also being reported. Immigration processing is not business as usual.

This month, the National Vetting Center was created by the White House. The National Vetting Center will be run out of the Department of Homeland Security, and will coordinate with other agencies like the Department of State and Federal Bureau of Investigation.

The announcement states, in part:

The NVC, which will be led by the Department of Homeland Security, will help fulfill the President’s requirement that departments and agencies improve their coordination and use of intelligence and other information in the vetting process.

The Federal Government’s current vetting efforts are ad hoc, which impedes our ability to keep up with today’s threats. The NVC will better coordinate these activities in a central location, enabling officials to further leverage critical intelligence and law enforcement information to identify terrorists, criminals, and other nefarious actors trying to enter and remain within our country. The NVC’s operations will adhere to America’s strong protections for individuals’ privacy, civil rights, and civil liberties. The Administration’s top priority is the safety and security of the public, and the NVC will empower our frontline defenders to better fulfill that obligation.

Other immigration-related agencies have also instituting increased vetting measures.

U.S. Citizenship and Immigration Services announced that it will interview all or most applicants who apply to remove the conditions on their permanent residence. This will be after one or more interviews previously to get the immigration benefit initially. In the past, a couple could mail in their application, with proof of marriage (e.g. shared home ownership or lease; kids had together; shared bills), and usually the agency would mail the green card after several months. Now, in addition to sending in these materials, the agency is calling people in for a second interview, and also in some cases conducting family home visits, even at odd hours if fraud is suspected. While combating green card is a necessary and vital part of USCIS’s mission, there has been no additional funding for all these interviews, which probably means lots of delays moving forward for all sorts of applications, as the agency reassigns resources.

USCIS has also said that it will move forward with interviewing beneficiaries of employment based immigration cases. While the agency has always had this authority, the practice has been to only interview where fraud concerns were triggered. Now, the agency is calling people in, and in some cases revisiting earlier I-140 approval adjudications. These are complicated applications, and the concern among some practitioners is that the field office adjudicators are not typically trained in the legalities, as are Service Center employees. Also, the added interview creates the potential for additional bias to be introduced in to the process, and again more delays.

USCIS also indicated this past year that it will no longer apply deference to renewals of approved petitions. This longstanding practice led to somewhat predictable results for employers with employees on occupational visas. We haven’t seen a rash of readjudications, but the guidance is now in place for adjudicators.

At the Consulates, there is reportedly an increase in the use of “administrative processing,” which the Department of State will not typically provide reason for. While cases usually are resolved in due time, it’s not unheard of for nonimmigrant visa renewals to suddenly take much longer (e.g. weeks), as they go through this process. This can be a real headache for visa renewal applicants, as well as for their families and employers who want them back.

At the border, it seems like there has been an increase in the use of expedited removals in the past year.  On the northern border, we most commonly see this with cases of misrepresentation, which occur after a lengthy interview. It was recently reported that searches of digital media are up by about 60% from 2016.

A safer America is a better America. However, finding the right balance between safety and practicality is also at issue. Applicants need to be aware that processes are slowing down. Changes are on-going, and we will continue to publish updates as circumstances and practices change.

Tags: , , , , ,
Posted in General, Scott Railton |

Pittsburgh Pirates Jung Ho Kang’s Denied Visa for DUI Arrests

Friday, March 24th, 2017 by W. Scott Railton

The news is reporting that Jung Ho Kang, the Pittsburgh Pirate’s starting third baseman from South Korea, was denied a visa to play ball this year in the United States due to his past DUIs. The news reports that he has been sentenced to 8 months in jail, which has been suspended, for a December 2016 DUI arrest. Additionally, it is reported that he has two past DUI arrests. Mr. Kang is not a client of ours, and so all comments here are based the hearsay of reported news. His high profile case is illustrative for all persons facing DUI issues, and so I thought I’d type out a few comments.

A single Driving under the influence conviction is not typically a basis for inadmissibility. A single offense may create an admissibility issue if there are aggravating factors. However, the Immigration and Nationality Act renders inadmissible anyone who is deemed a “habitual drunkard”. The habitual drunkard standard does not mean anyone who has ever been arrested for DUI or who, say, is a member of Alcoholics Anonymous. Inadmissibility is established on health-related grounds, and out of concern that a person may be a threat to the “property, safety, or welfare of the alien or others.”

Here’s how it plays out.  A person goes into a visa interview at a foreign consulate, and on the forms acknowledges the past arrests and/or convictions. The Consular Officer then evaluates the whole of the visa application, and probably would refer the person to a Panel Physician, to evaluate whether there is a “habitual drunkard” or other threatening health condition. Panel Physicians are government approved physicians, who are trained to conduct medical examinations related to admissibility issues. They make determinations based on Technical Instructions issued by the Center for Disease Control.

The Department of State has been cracking down in the last year or so on DUI issues. They have implemented a policy of “prudentially revoking” visas for persons who have been arrested for DUIs, and have required that such persons re-apply for visas before seeking to re-enter the U.S.

Nonimmigrant waivers may be available, as need be. A person in Mr. Kang’s situation would first need to obtain a recommendation for a nonimmigrant waiver, if required. This recommendation is forwarded to U.S. Customs and Border Protection’s Admissibility Review Office for further review. CBP will apply a balancing test weighing the need for entry, rehabilitation, and the threat of harm to the U.S. Waivers are easier to obtain after the passage of time from the underlying event(s).

Department of State’s 9 FAM 403.11-5(B) (U) on Prudential Revocations

c. (U) Prudential Revocation for Driving Under the Influence: Either Post or the Department has the authority to prudentially revoke a visa on the basis of a potential INA 212(a)(1)(A) ineligibility when a Watchlist Promote Hit appears for an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years. This does not apply when the arrest has already been addressed within the context of a visa application; i.e., the individual has been through the panel physician’s assessment due to the arrest. This does not apply to other alcohol related arrests such as public intoxication that do not involve the operation of a vehicle. Unlike other prudential revocations, consular officers do not need to refer the case to the Department, but can prudentially revoke on their own authority. Post should process the revocation from the Spoil tab NIV and add P1A3 and VRVK lookouts from the Refusal window.

Immigration and Nationality Act excerpt:

Sec. 212. [8 U.S.C. 1182]
(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(1) Health-related grounds.-
(A) In general.-Any alien-
(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; 1b
(ii) 1except as provided in subparagraph (C) 1a who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,
(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-
(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.
(B) Waiver authorized.-For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).

Tags: , , , , , , , ,
Posted in Scott Railton |

P-1’s and Pennants

Tuesday, October 25th, 2016 by Abtin Bahador

As Major League Baseball’s (“MLB”) World Series gets under way, let us take a moment to remember a simpler time before the season started, when the hopes of all 30 MLB teams and fans were at their highest. While fans in the U.S. were dreaming of the season ahead, many foreign-born players were getting ready for the season by working out to lose off-season weight, packing their bags, and standing in lines at consulates around the world to apply for visas.

As the American pastime increasingly becomes the Central American pastime, more and more of our favorite major league players are born outside the U.S. The Cleveland Indians and Chicago Cubs both field several foreign-born players from the Dominican Republic, Venezuela and even Brazil.

All foreign workers, including baseball players, require approvals from the Department of Homeland Security and the Department of State before they can play ball in the U.S.

Many foreign-born players come to the U.S. and apply their skills in P-1 status. The P-1A classification is designed for Internationally Recognized Athletes to come to the United States temporarily to perform as an athlete, individually or as part of a team, at an internationally recognized level of performance.

As with most employment-based classifications, the P-1 is employer specific. The individual MLB teams apply to the United States Citizenship and Immigration Services (“USCIS”) during the offseason. The teams need to time the filing of the application to ensure it is approved with enough time to allow for the player to attend a visa interview at a U.S. Consulate or Embassy in their home country before the season starts.

While the actual visa interview itself is typically short, the administrative processing surrounding the issuance of the physical visa can delay things significantly, especially if there are criminal or medical issues that require further information. This can mean weeks of waiting for players to join their teammates.

While you may not own a baseball team, your business can acquire its own foreign-born “heavy-hitter” by applying for one of several non-immigrant employment visa categories. The process to sponsor a foreign employee is similar to the P-1 process described above. Select the applicable category, apply to USCIS for approval, and depending on the employee’s country of origin apply to the Department of State for a Visa.

For further information regarding non-immigrant employment options, please visit, http://www.cascadia.com/resources/temporary-immigration/.

Tags: , , , , , ,
Posted in Abtin Bahador |

The Department of State’s 2018 Diversity Visa Program (DV-2018) registration is now open!

Thursday, September 29th, 2016 by Heather Fathali

Online registration for the DV-2018 Program begins on Tuesday, October 4, 2016 at 12:00 noon, Eastern Daylight Time (EDT) (GMT-4), and concludes on Monday, November 7, 2016 at 12:00 noon, Eastern Standard Time (EST) (GMT-4).

The entry form must be submitted during this period, and entries may only be submitted online at https://www.dvlottery.state.gov/.

Section 203(c) of the Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants,” born in countries with historically low rates of immigration to the United States. A limited number of diversity visas (DVs) are available each fiscal year, which traditionally begins on Oct. 1. The DVs are distributed among six geographic regions (Africa; Asia; Europe; North America; Oceania; and South America, Central America, and the Caribbean) and no single country may receive more than seven percent of the available DVs in any one year. Entrants are “chargeable” according their country of birth, not their current country of residence or citizenship. For example, if a person was born in Iran but is a citizen of Canada and resides in Canada, they remain chargeable to Iran for DV purposes; and may apply for the program despite the fact that Canada is not a DV country.

The U.S. Department of State provides a helpful step-by-step guidance on the program and how to submit an entry at https://www.youtube.com/watch?v=tOQlh2d2EbQ&feature=youtu.be. Instructions are also available at https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2018-Instructions-Translations/DV-2018%20Instructions%20English.pdf.

DV-2018 Entrants will begin to be able to check their entry status starting May 2, 2017. Entrants may only check their status by entering their confirmation information at https://www.dvlottery.state.gov/; the U.S. government will not mail out a notice regarding an Entrant’s status, and embassies and consulates will not provide a list of selectees. DV-2018 Entrants should keep their confirmation number until at least September 30, 2018.

The list of DV-2018 countries is available in the official DV-2018 Program Instructions, and is also copied below:

 

LIST OF COUNTRIES/AREAS BY REGION WHOSE NATIVES ARE ELIGIBLE FOR DV-2018

The list below shows the countries whose natives are eligible for DV-2018, grouped by geographic region. Dependent areas overseas are included within the region of the governing country. USCIS identified the countries whose natives are not eligible for the DV-2018 program according to the formula in Section 203(c) of the INA. The countries whose natives are not eligible for the DV program (because they are the principal source countries of Family-Sponsored and Employment-Based immigration or “high-admission” countries) are noted after the respective regional lists.

 

AFRICA

Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cabo Verde, Central African Republic, Chad, Comoros, Congo, Democratic Republic of the Congo, Cote D’Ivoire (Ivory Coast), Djibouti, Egypt*, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, The Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, South Sudan, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, Zimbabwe

* Persons born in the areas administered prior to June 1967 by Israel, Jordan, Syria, and Egypt are chargeable, respectively, to Israel, Jordan, Syria, and Egypt. Persons born in the Gaza Strip are chargeable to Egypt; persons born in the West Bank are chargeable to Jordan; persons born in the Golan Heights are chargeable to Syria.

In Africa, natives of Nigeria are not eligible for this year’s Diversity Visa program.

 

ASIA

Afghanistan, Bahrain, Bhutan, Brunei, Burma, Cambodia, Hong Kong Special Administrative Region**, Indonesia, Iran, Iraq, Israel*, Japan, Jordan*, Kuwait, Laos, Lebanon, Malaysia, Maldives, Mongolia, Nepal, North Korea, Oman, Qatar, Saudi Arabia, Singapore, Sri Lanka, Syria*, Taiwan**, Thailand, Timor-Leste, United Arab Emirates, Yemen,

*Persons born in the areas administered prior to June 1967 by Israel, Jordan, Syria, and Egypt are chargeable, respectively, to Israel, Jordan, Syria, and Egypt. Persons born in the Gaza Strip are chargeable to Egypt; persons born in the West Bank are chargeable to Jordan; persons born in the Golan Heights are chargeable to Syria.

**Hong Kong S.A.R. (Asia region), Macau S.A.R. (Europe region, chargeable to Portugal), and Taiwan (Asia region) do qualify and are listed here. For the purposes of the diversity program only, persons born in Macau S.A.R. derive eligibility from Portugal, and must select Portugal as their country of eligibility.

Natives of the following Asia Region countries are not eligible for this year’s Diversity Visa program: Bangladesh, China (mainland-born), India, Pakistan, South Korea, Philippines, and Vietnam.

 

EUROPE

Albania, Andorra, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark (including components and dependent areas overseas), Estonia, Finland, France (including components and dependent areas overseas), Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kazakhstan, Kosovo, Kyrgyzstan, Latvia, Liechtenstein, Lithuania, Luxembourg, Macau Special Administrative Region**, Macedonia, Malta, Moldova, Monaco, Montenegro, Netherlands (including components and dependent areas overseas), Northern Ireland***, Norway (including components and dependent areas overseas), Poland, Portugal (including components and dependent areas overseas), Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan, Vatican City

**Macau S.A.R. does qualify and is listed above and for the purposes of the diversity program only; persons born in Macau S.A.R. derive eligibility from Portugal, and must select Portugal as their country of eligibility.

***For purposes of the diversity program only, Northern Ireland is treated separately. Northern Ireland does qualify and is listed among the qualifying areas.

Natives of the following European countries are not eligible for this year’s DV program: Great Britain (United Kingdom). Great Britain (United Kingdom) includes the following dependent areas: Anguilla, Bermuda, British Virgin Islands, British Indian Ocean Territory, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, South Georgia and the South Sandwich Islands, St. Helena, and Turks and Caicos Islands.

 

NORTH AMERICA

The Bahamas

In North America, natives of Canada and Mexico are not eligible for this year’s DV program.

 

OCEANIA

Australia (including components and dependent areas overseas), Fiji, Kiribati, Marshall Islands, Micronesia, Federated States of Nauru, New Zealand (including components and dependent areas overseas), Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu

 

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN

Antigua and Barbuda, Argentina, Barbados, Belize, Bolivia, Chile, Costa Rica, Cuba, Dominica, Ecuador, Grenada, Guatemala, Guyana, Honduras, Nicaragua, Panama, Paraguay, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay, Venezuela

Countries in this region whose natives are not eligible for this year’s DV program: Brazil, Colombia, Dominican Republic, El Salvador, Haiti, Jamaica, Mexico, and Peru.

Tags: , , , , , , , , , , , , , , , , , , , , ,
Posted in General |