Tag Archive for: Foreign Affairs Manual

Cyrus Mehta

The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?

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By Cyrus D. Mehta

Several children who filed I-485 applications as derivatives of their Indian born parents under the October 2020 Visa Bulletin are being denied because they turned 21 years before the Final Action Dates became current. The backlogs for India in the employment-based second and third preferences have already caused untold suffering to beneficiaries of approved I-140 petitions who have to wait for over a decade in the never ending backlogs. When the Dates for Filing in the India EB-3 overtook the India EB-2 under the October 2020 Visa Bulletin thousands of applicants filed I-485 applications for themselves, spouses and minor children.   Hence, the denial of the I-485 applications of their children who turn 21 and are not allowed to claim the protection of the Child Status Protection Act through the Dates for Filing exacerbates the problem for these beneficiaries.

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7,  states that only the Final Action Dates (FAD) protects the age of the child under the Child Status Protection Act (CSPA). The State Department too has the same policy of using the FAD for purposes of freezing the age of the child at 9 FAM 502.1-1(D)(4) .

Using the Dates for Filing (DFF) to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD – but USCIS policy erroneously maintains that only the FAD can protect the age of the child. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the FAD becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the FAD becomes available while the child’s application gets denied.

I had first advocated in my blog of September 22, 2018 entitled Recipe for Confusion: USCIS Says Only the Final Action Date Protects a Child’s Age under the Child Status Protection Act that the DOF should protect the age of the child under the CSPA rather than the FAD.

There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:

INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation in the policy manual that makes no sense: “If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, the applicant still will meet the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the FAD becomes available.

Neither the USCIS nor the DOS have considered reversing this policy by allowing CSPA protection based on the DFF. Brent Renison  challenged this policy in  Nakka v. USCIS, details of which can be found on his blog at http://www.entrylaw.com/backlogcspalawsuit.  The plaintiffs in this case not only challenged the CSPA policy but also argued that they were denied equal protection under the Fifth Amendment  on the ground that  children of parents who were born in countries such as India and China that have been impacted by the per country limits have a worse outcome than children of parents born in countries that have not been impacted by the per country limits.  Magistrate Judge Youlee Yim You   found on November 30, 2021 that plaintiffs’ claims that the USCIS Policy Manual and Foreign Affairs Manual dictating the use of the FAD to calculate the CSPA age instead of DOF was not “final agency action” and thus could not be reviewed under the Administrative Procedure Act.   Magistrate Judge You also found that plaintiffs could not claim a violation of equal protection under the U.S. constitution for unequal treatment. The Magistrate Judge’s decision is only a recommendation to the district court judge presiding over the case, who is Judge Simon. The Magistrate Judge’s recommendation also does not pass any judgment on the policy itself and whether it is appropriate to rely on the FAD rather than the DOF. It should also be noted that a Magistrate Judge is not an Article III judge and her findings and recommendations will not be binding leave alone persuasive on another court.

Prior to Nakka v. USCIS, there was another challenge in Lin Liu v. Smith, 515 F. Supp. 3d 193, 199 (S.D.N.Y. 2021) to the policy in the FAM requiring the use of the FAD rather than the DOF to protect the CSPA age. In this case too, Judge Koeltl opined that the policy in the FAM is an interpretive rule rather than a legislative rule. The plaintiffs also claimed that the government unlawfully applied the updated Visa Bulletin to the plaintiff retroactively. Here too the court dismissed the claim because the court held that DOS did not implement a new policy, and therefore there was nothing that could have been applied retroactively to the plaintiff. Judge Koeltl made the following observation:

The Visa Bulletin formerly contained one chart that listed the priority dates that were current for visa number availability. DOS updated the Visa Bulletin to include a second chart showing when applicants could file their applications with the NVC. However, the Final Action Date chart, not the Dates for Filing chart, reflects the information previously listed in the one-chart Visa Bulletin. In other words, the Dates for Filing chart is the new feature in the Visa Bulletin, not the Final Action Date chart. Both before and after the modernization of the Visa Bulletin, DOS used the same information to determine when a visa number became available, namely, when a visa number could be issued legally given the limits set by Congress. While DOS did change the format in which it conveyed this information—posting two charts to the Visa Bulletin rather than one chart—the substantive policy did not change. The newly added Dates for Filing chart reflects useful information for when applicants can begin submitting materials to the NVC, but it does not reflect when visa numbers  are legally available. Therefore, the plaintiff has not pleaded adequately that the defendants changed their policy with respect to tethering visa number availability to when the visa number could be issued lawfully given country and category limits to visa allocation.

Lin Liu v. Smith should not be considered the final word on challenging the USCIS CSPA policy. The plaintiff in this case was a derivative child who was outside the US processing her immigrant visa at the US Consulate. Her father had received a visa under the EB-5 but she had been denied the visa because she was not able to demonstrate that her age had been protected under the DOF and not the FAD. However, Judge Koeltl did not deal with the paradox that is applicable to adjustment applicants in the US. Unlike applicants pursing an immigrant visa at a US consulate, they are allowed to file an adjustment application under the DOF because the USCIS has interpreted the DOF to signify that a visa number is immediately available under INA 245(a)(3). However, the child is then deprived of the ability to demonstrate that the visa is immediately available under INA 203(h)(1)(A) for purposes of protecting his or her age.

The setbacks in Nakka v. USCIS and Lin Liu v. Smith ought not discourage a plaintiff from continuing to challenge the inconsistent USCIS policy of allowing an adjustment application to be filed under the DOF but not allowing CSPA age protection. One  involves the findings and recommendations of a non-Article III magistrate judge, which can be overruled by the district judge presiding over the case. The other decision involves a plaintiff who was applying for an immigrant visa at a US Consulate overseas where the DOF does not have any significance. A child applicant whose I-485 was denied because the age could not be protected when the DOF became current should certainly consider seeking judicial review of the decision under the Administrative Procedures Act. Alternatively, if the child is placed in removal proceedings, the child’s I-485 can potentially be renewed in removal proceedings and he or she should be able to argue that neither the USCIS nor DOS policy regarding the FAD protecting the CSPA age is binding on an Immigration Judge. If the IJ affirms a denial, the decision can be appealed to the Board of Immigration Appeals, and if the BIA reaffirms the IJ’s decision, a petition for review can be filed in a Court of Appeals. Hence, there are two avenues for judicial review – through the APA in federal district court or through a petition for review in a court of appeals – that may be able to reverse the erroneous USCIS policy.

 

Cyrus Mehta

Positive Changes to 90-Day Misrepresentation Guidance in the Foreign Affairs Manual – Especially for Foreign Students

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In September 2017, the State Department abruptly amended the Foreign Affairs Manual to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas.  A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility. I previously blogged on this development here and here,  I am blogging yet again because I am pleased to report on further recent changes,  which are more positive this time especially for foreign students.

In order to presume fraud or misrepresentation, the applicant must have engaged in conduct inconsistent with representations made to consular officers or DHS officers within 90 days of applying for a visa, admission or other immigration benefit. If the foreign national engaged in inconsistent conduct more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule”, the FAM is not codified law or regulation, but merely sub-regulatory guidance for consular officials abroad. Thus, I prefer to call it guidance rather than a rule.

The latest modification at 9 FAM 302.9-4(B)(3)(g)(2) cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

(i)Engaging in unauthorized employment;

(ii) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii)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

(iv)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.

The big change is in (iii) where the words “or F status, or any other” have been stricken. The omission of these few words provides welcome relief to students in F status who study in the US as well as other nonimmigrants in status prohibiting immigrant intent such as J status. A student who travels abroad for vacation, but has planned to get married to a US citizen shortly after the vacation, no longer needs to fear being found to have willfully misrepresented his  or her intentions at the time of admission. Although (iii) contemplates marriage to a US citizen and taking up residence in the United States thereafter, it could encompass other scenarios, such as a student filing an adjustment of status application, based on an approved  I-140 petition with a current priority date, after returning from a brief trip overseas.

This welcome change appears to acknowledge an inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g.Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent).

Such inherent dual intent as established in Matter of Hosseinpour is also applicable to one who enters the United States in B status too, but the B nonimmigrant still seems vulnerable to a charge of fraud or misrepresentation based on conduct inconsistent with what was represented to the consular or DHS officer. Still, there are other positive and sensible changes in the FAM that apply to all nonimmigrants, especially in the  preceding section at 9 FAM 302.9-4(B)(3)(g)(1). For ease of reference, the entire section is reproduced below with the changes reflected in Red Italics.

(U) Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status

  1. (U) In General:
    1. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    2. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    3. (U) The fact that an alien’s subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that the alien’s intentions were misrepresented at the time of either the visa application or application for admission to the United States.  To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).  If the activities happened within 90 days after the visa application and/or application for admission to the United States, please see paragraph (2) below.

(U) Note: The case notes must reflect that, when applying for admission into the U.S. or for a visa, the alien stated either orally or in writing to a consular or immigration officer that the purpose of travel was consistent with the nonimmigrant visa class sought.  (For example: “The officer finds that the applicant told the officer at the port of entry that his purpose of travel was consistent with the visa class held.”)

 

The heading of 9 FAM 302.9-4(B)(3)(g)(1) now reads “Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status” thus suggesting more discretion and leeway before a consular officer jumps to the conclusion that the application misrepresented his or her intention.  Notwithstanding the 90 day period, so long as one initially entered the United States with the intention that was consistent with the visa status, such as to visit the US for tourism, in B-2 status, but then genuinely changed one’s mind and got married to a US citizen within 90 days, the presumption of misrepresentation can be rebutted if it can be demonstration that the intent at the time of admission was consistent with the B-2 status. The guidance goes onto further state that even if the conduct was inconsistent to what was previously represented to the consular or DHS officer,  there should not be an automatic presumption of fraud or misrepresentation. Consular officers are not permitted to go along with a hunch or mere suspicion, the FAM cautions. Rather, consular officers must adopt the reason to believe standard: “To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).”  “Probable cause” is generally associated with a reasonable ground to believe that the accused is guilty, see e.g. Ludecke v. United States Marshall, 15 F.3d 496 (5th Cir. 1994).   Thus, the implementation of “probable cause” gives more room for an applicant to rebut an accusation of misrepresentation.

Finally, the insertion of  “engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status” appears to be in harmony with prong (iv) of 9 FAM 302.9-4(B)(3)(g)(2). Prong (iv) says the same thing: “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.” As I had suggested in the prior prior blog, the applicant should only be penalized if he or she engaged in activities without applying for a change of status or adjustment of status. Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30thday, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the prong (iv) criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. Also, since the salutary change for students in the FAM guidance is for consular officers, a Customs and Border Protection (CBP) officer at the airport may not be guided by it, and may not even know about it. Thus, a foreign student who has resided in the United States for several years coming back from a brief weekend trip from Canada could still be suspected for misrepresenting his or her intentions as a nonimmigrant if there is a plan to marry a US citizen and adjust status in the US.

It is hoped that the change in the FAM guidance benefitting foreign nonimmigrant students will guide USCIS and CBP too. It makes little sense to penalize a bona fide foreign student who plans to marry and adjust status just because of a short vacation overseas. The inherent dual intent wisely recognized by the Board of Immigration Appeals in all nonimmigrant visa categories in Matter of Hosseinpour ought to be part of guiding policy for all the agencies administering the Immigration and Nationality Act. One who enters the United States as a nonimmigrant to pursue the objectives of the visa, but who also desires to immigrate, should not be viewed in the same way as one who commits blatant fraud. Nonimmigrants should be allowed to follow their destiny as it naturally unfolds in the United States without having to worry about being accused of engaging in inconsistent actions within 90 days of their admission.

Cyrus Mehta

Don’t Always Suck Up to Buy American Hire American

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President Trump’s Buy American Hire American Executive Order (BAHA) has little relevance in an economy where the unemployment rate is 4% and the Labor Department has reported that there is a record high of 7.3 million job openings.  BAHA has however been deployed to make life harder for legal immigrants who do their best to remain in status while pursuing lawful permanent residence. They also benefit the United States as their employers need them and follow the law in filing appropriate visa applications.   For example, H-1B visa renewals that were routinely approved previously are now being denied in the name of BAHA. The USCIS has recently released new H-1B data that reflects an increase in requests for evidence and denials in 2019, again pursuant to BAHA.

BAHA aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. BAHA highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries. BAHA, however, is merely an executive order. It should not take precedence over the Immigration and Nationality Act.  Still, the USCIS uses BAHA as justification to refuse otherwise approvable H-1B petitions. Some of these H-1B denials are absurd. The author recently heard that the USCIS denied a petition filed on behalf of a pathologist by an established pharmaceutical company.

Following BAHA, the State Department also swiftly made changes to the Foreign Affairs Manual regarding guiding consular officials in issuing nonimmigrant H, L, O, P and E visas. The changes relating to H and L visas are reproduced below as examples:

9 FAM 402.10-2 Overview of H Visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040210.html

9 FAM 402.12-2 Overview of L visas

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(L) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040212.html

Based on these FAM changes, here have been several anecdotal reports of consular officers asking visa applicants as to how their employment will further BAHA by creating jobs for American workers or not depressing their wages. Some have been questioned whether their employers first tried to hire American workers even when such recruitment is not required under the specific visa. Such questioning is entirely inappropriate and not consistent with the law under which the visa petition was approved.

For example, the remuneration of an intracompany transferee on an L-1 visa can emanate from a US or a foreign source. See Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). The L visa also does not mandate a certain wage or a test of the U.S. labor market.  An E visa treaty trader or investor does not need to be paid wages. Still, under BAHA, this may be viewed as suspect if it does not create higher wages and employment rates for US workers. BAHA was not in existence when Congress created the L, E, H-1B or O visa provisions in the INA. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a) (15) (L) that the purpose of the L visa was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Therefore, if Congress desired the same purpose for the L or the O visa, as it did for the H-2B visa, it would have said so. Even with H-1B visas, unless an employer is a dependent employer, there is no obligation on the part of the employer to recruit for US workers. Regarding wages too, if an employer is legitimately hiring a worker for an entry level position in an H-1B specialty occupation, the employer is under no obligation under the law to pay the highest level wage.

As a result of all visa applications being viewed through the prism of BAHA, attorneys feel the need to advise their clients to answer questions of consular officials relating to BAHA. Some attorney are also indicating in H-1B and other visa petitions (both nonimmigrant and immigrant) as to how the beneficiary will further BAHA. While it may be tempting for us as attorneys to invoke BAHA as if it is a deity with magical powers, it may also lead us down a rabbit hole. Apart from not being law and only an executive order, BAHA sets no standard for the attorney to guide the client. If the attorney indicates that the H-1B worker’s entry into the US will create more jobs, there is no metric to establish this. The only metric we have under current immigration law include specific labor market tests under the permanent labor certification program, the H-2A and H-2B programs and the H-1B program for dependent employers or willful violators. These rigid criteria have not been followed in other visa petitions such as an L-1 or an H-1B (for a non-dependent employer or an employer who is not a willful violator), and they do not need to.

If a client is asked inappropriately regarding whether the position will impact American workers or not, the client should be prepared to answer that the visa petition met all the criteria under the statutory and regulatory provisions, and was approved accordingly. There is no need for the client, or the attorney, to improvise on why the applicant’s employment in the US will result in more jobs for US workers.  Advancing the client’s cause under BAHA will lead to more questions from the adjudicating official, which could be arbitrary and cannot he held up to an objective legal standard.

This is not to say that an applicant should never make a BAHA argument in his or her favor. There may be some instances where the argument in favor of BAHA is clear cut or the official asks specific questions where an answer may be readily available.  The purpose of this blog is to caution against the talismanic invocation of BAHA, when there is no metric or standard, under which an adjudicating official can be held up to. BAHA has also been used most effectively to deny immigration benefits. If an official infuses the adjudication process with BAHA, resulting in a denial, it could be grounds for appeal. Even at the consular level, which is generally immune from administrative or judicial review, a denial of a visa application based on BAHA would potentially allow the applicant to seek an advisory opinion from the Visa Office if the denial was contrary to the statutory provision.  If the applicant already conceded that the official could ask for extraneous evidence under BAHA and provided it, it may be harder to appeal such a denial. Therefore, in the opinion of this author, it is best to not always suck up to BAHA.

 

Cyrus Mehta

State Department’s Change To Public Charge Guidance In Foreign Affairs Manual Will Result in Many More Visa Refusals

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The Trump Administration has opened another front in its war on legal immigration to the United States, which is to broaden the definition of who is likely to become a public charge.  One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of status to permanent residence within the United States.  This proposal is still in draft format and has not yet become a rule. However, if and when it does become a rule, foreign nationals who rely on government benefits will be more at risk of being found inadmissible under the public charge ground. Current policy allows officials to consider only two types of public benefits that would result in a negative public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense.

While the Trump administration’s proposed regulatory change is winding its way through bureaucratic channels, the State Department’s Foreign Affairs Manual (FAM), which is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad, has already made it easier to find visa applicants inadmissible under the public charge ground. The State Department can freely change the FAM at its choosing without even providing notice to the public or an opportunity to comment.

Under INA 212(a)(4), a foreign national seeking to be admitted to the United States as either a nonimmigrant or an immigrant will be found inadmissible if he or she is likely to become a public charge at any time. The law allows officials to look at a foreign national’s age, health, family status, assets, resources and financial status; and education and skills.

Pursuant to INA 213A, a properly executed affidavit of support by a US sponsor, Form I-864, may overcome a public charge determination in all family immigration and in some employment-based cases. An I-864 clearly constitutes a contract between the sponsor and the government. See INA 213A(a)(1)(B).

The State Department at 9 FAM 302.8-2 (amended on 1/3/2018) broadened the ability of a consular officer to make a public charge determination, rendering it easier to refuse an immigrant visa. Specifically, new 9 FAM 3012.8-2(B)(2) provides:

  1. In General:
    1. In making a determination whether an applicant is inadmissible under INA 212(a)(4)(B), in every case you must consider at a minimum the applicant’s:
      1. Age;
      2. Health;
      3. Family status;
      4. Assets, resources, and financial status; and
      5. Education and skills.
    2. These factors, and any other reasonable factors considered relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.
    3. Value of the Affidavit of Support: A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the “totality of circumstances” analysis, which requires the consideration of the factors listed in paragraph (1) above.

Under the new FAM guidance, a properly executed Form I-864 will only be considered “a positive factor in the totality of circumstances” even though it is a binding enforceable contract that allows the government agency to claim reimbursement of the cost of the benefit that was provided to the foreign national. Compare the new language with the January 19, 2017 version of the public charge definition in the FAM,  available at https://web.archive.org/web/20170119231252/https://fam.state.gov/FAM/09FAM/09FAM030208.html, which was just before the start of the Trump administration

The old 9 FAM 302.8-2(B)(3)(a.)(2) stated:

2. These factors, and any other factors thought relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.  As noted in 9 FAM 302.8-2(B)(2), a properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis.  Nevertheless, the factors cited above could be given consideration in an unusual case in which a Form I-864 has been submitted and should be considered in cases where Form I-864 is not required.

See also the old 9 FAM 302.8-2(B)(2)(c):

 Effect of Form I-864 on Public Charge Determinations:  A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to overcome the INA 212(a)(4) requirements.  In determining whether the INA 213A requirements creating a legally binding affidavit have been met, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor – the affidavit is enforceable regardless of the sponsor’s actual intent and should not be considered by you, unless there are significant public charge concerns relating to the specific case, such as if the applicant is of advanced age or has a serious medical condition.  If you have concerns about whether a particular Form I-864 may be “fraudulent”, you should contact CA/FPP for guidance.

Under the new FAM guidance, a non-fraudulent I-864 will no longer be considered sufficient to overcome the public charge requirements under INA 212(a)(4). Pursuant to the old FAM guidance, the credibility of an offer of support from a person who met the definition of a sponsor and who had verifiable resources was not a factor. A DOS official at the Federal Bar Association’s Immigration Conference on May 18 and 19, 2018 in Memphis, TN confirmed that the I-864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors. DOS will look behind the affidavit of support if the consular officer believes that the sponsor is not likely to comply with his or her obligations. By way of an example, according to the DOS official, if a co-sponsor has already executed other I-864s in the past, then that will be viewed as an adverse factor. (See Lily Axelrod’s excellent summary of the proceedings of the FBA immigration conference on the Cool Immigration Lawyers page on Facebook).

The I-864 has always been thought of as a binding contract between the sponsor and the government, and thus discrediting an I-864 that is otherwise non-fraudulent seems to undermine the contractual nature of the I-864. Even if a sponsor has executed other I-864s in the past, that should not result in an adverse credibility determination if the sponsor has sufficient documented income to meet 125% of the federal poverty guidelines based on his or her household size. Under the new FAM provisions, deeming a properly executed I-864 as overcoming public charge will no longer be the case.

Indeed, the change to the public charge definition in the FAM is causing additional havoc to otherwise eligible applicants for immigrant visas. Those who already got approved I-601A provisional waivers to overcome the 3 or 10 year bars under INA 212(a)(9)(B)(i) and have proceeded overseas to process their immigrant visas are now finding themselves being found inadmissible for likely becoming a public charge under INA 212(a)(4). If the visa applicant is found inadmissible for another ground other than under INA 212(a)(9)(B)(i), the I-601A waiver is revoked and the applicant has to file a new I-601 to again overcome the 3 or 10 year inadmissibility bars under INA 212(a)(9)(B)(i) even if the applicant is able to overcome the public charge ground by providing additional evidence. This can cause a delay of at least a year and result in uncertainty until the new I-601 is approved. One suggested way to ameliorate this unnecessary hardship is to issue an INA 221(g) letter requesting evidence to overcome the public charge ground rather than a flat out refusal under INA 212(a)(4).

The new FAM assessment of public charge also appears to run contrary to 8 CFR 213a.2(c)(2)(iv), which provides:

Remaining inadmissibility on public charge grounds. Notwithstanding the filing of a sufficient affidavit of support under section 213A of the Act and this section, an alien may be found to be inadmissible under section 212(a)(4) of the Act if the alien’s case includes evidence of specific facts that, when considered in light of section 212(a)(4)(B) of the Act, support a reasonable inference that the alien is likely at any time to become a public charge.

While it may be permissible under 8 CFR 213a.2(c)(2)(iv), to find public charge inadmissibility despite a proper affidavit of support, it has to be based on “evidence of specific facts” that “support a reasonable inference that the alien is likely . . . to become a public charge.” The new FAM guidance on the other hand considers a non-fraudulent I-864 only as a positive factor in the totality of circumstances, which includes the foreign national’s age, health, family status, assets, resources and financial status and education and skills.

Applicants should no longer assume when they process an immigrant visa at a US consulate that an I-864 will be deemed to overcome a public charge finding. The visa applicant must also demonstrate his or her own history of employment, or ability to obtain employment, along with prior tax filings. The visa applicant must also be ready to demonstrate a meaningful relationship with a co-sponsor, if there is one.  Finally, the I-864 must be accompanied by the required corroborating documentation pertaining to the sponsor such as tax returns, employment documents and evidence of assets, if applicable. Nothing should be taken for granted under the Trump administration, whose avowed objective is to restrict legal immigration to the United States. Until the administration can get its way in Congress by restricting immigration to only a select few under a Merits-Based immigration system, it will try every other way to restrict immigration, including expanding the definition of public charge.

Cyrus Mehta & Sophia Genovese

Reinterpreting the 90 Day Misrepresentation Provision in the Foreign Affairs Manual

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As we previously blogged, the State Department abruptly amended the Foreign Affairs Manual in September 2017 to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.

To reiterate, the updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule ”, the FAM is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad.

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

    1. Engaging in unauthorized employment;
    2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
    3. 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
    4. 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.

A literal reading of the four criteria seem to suggest that the inconsistent activity resulting in a presumption of misrepresentation must have occurred in the absence of filing an application for change of status or adjustment of status that would otherwise authorize such an activity.  The way the FAM provision literally reads is contrary to how this has previously been understood, which is that if a foreign national filed an adjustment or change of status application within 90 days of entry, it created a rebuttable presumption that the person misrepresented his or her intentions upon initial entry. Prior to the introduction of the new FAM provision, it was similarly understood that filing a change of status or adjustment of status application within 30 days created a rebuttable presumption of fraud or willful misrepresentation. If such an application was filed more than 60 days later, there would be no such presumption.

Let’s carefully start our analysis with the fourth criterion under 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv):

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.

Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30th day, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the fourth criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. According to the way 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) literally reads, which a DOS official confirmed recently at a conference,  the 90 day guidance is not implicated if the foreign national files a change of status or adjustment of status application even within 90 days and then seeks to engage in conduct consistent with the new status. The guidance is implicated, rather, if the foreign national engages in conduct that is inconsistent with their present status such as working while in B-2 status without first filing and obtaining a change of status that would authorize such work activity. In other words, filing a change or adjustment of status application within 90 days of entry ought not create a presumption of willful misrepresentation for a consular officer especially if it was approved by the USCIS.

This interpretation, while at first blush appears not to square with the third criterion,  9 FAM 302.9-4(B)(3)(g)(2)(b)(iii) (“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”)  may be harmonized if it is read in conjunction with the fourth criterion at 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv)(“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”).

This nuanced reading may run contrary to the way the presumption of misrepresentation has always been understood, which has meant that a nonimmigrant who entered on a B-2 visa, married a US citizen and applied for adjustment of status within 90 days would presumptively be found to have made a misrepresentation at the time of entry. Such a reading may not be universally accepted and obviously should not be relied upon until it gains more acceptance by all the agencies. It may never gain acceptance since the same language in current 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) existed under the old version of the 30-60 day rule too and was never interpreted in this way previously.   The USCIS has questioned adjustment applicants regarding their intention at the time of admission when they filed soon after entry into the US. Also, when one files a change of status from B-2 to F-1, the USCIS often questions when the applicant contacted the school from the time of admission in order to gage the applicant’s true intention and whether it was contrary to the purpose under the B-2 visa. Still, the literal reading ought to be invoked as a defense to those who have been accused of misrepresentation, but never engaged in inconsistent activity prior to filing an application for change of status or adjustment of status.

This reading also makes perfect policy sense. It makes little sense to penalize a student who has been living lawfully for years in F-1 status, and who after travelling abroad on a brief vacation marries his fiancée and files an adjustment of status application within 90 days. Under a literal reading of the FAM guidance, the presumption of fraud or misrepresentation is not implicated, although under the way it has been traditionally understood, it would be because the student unfortunately took this vacation abroad prior to his marriage and the filing of the adjustment application within 90 days. Moreover, the literal reading does not totally eviscerate the presumption of fraud or misrepresentation. The 90 day guidance would still apply to those who violate immigration laws. Thus, a person who enters as a tourist and starts working within 90 days without filing for a change of status to a nonimmigrant work visa status would implicate the rule when she next visits the US Consulate for a new visa. The prior activity would have resulted in a rebuttable presumption of fraud or misrepresentation, and she may be found inadmissible under INA § 212(a)(6)(C)(i). However, if this same person, like the violinist in our prior example, followed the law and started working only after the O-1B request for a change of status was approved, the 90 day rule ought not be implicated.

Furthermore, a person would not be able to get away when there is obvious evidence of a misrepresentation at the time of applying for a visa or upon admission. For example, if a person applies for a business visa supported by documentation to further a business purpose in the US, and upon entry, does not conduct any business activities whatsoever but instead seeks admission at a school and applies for change of status to F-1, that person would most likely be found inadmissible for misrepresenting that there was a business purpose to visit the US when there was none. A literal reading would only likely eliminate a presumption of misrepresentation where the person otherwise came to the US pursuant to the stated purpose and then applied for a change of status to perform another activity within 90 days.

The literal reading of the 90-day provision in the FAM also supports the dual intent doctrine. Notwithstanding the codification of dual intent in statute and regulation, there is a recognition of inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States upon the occurrence of certain conditions is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g. Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent). Even the most recent change in the F-1 nonimmigrant standard implicitly allows dual intent, specifically stating that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application.” 9 FAM 402.505(E)(1). Thus, persons should not be penalized if they wish to enter the US to engage in activities that may be inconsistent with their initial visa provided they pursued activities consistent with the initial purpose and then successfully file change of status or adjustment of status applications that would permit them to pursue those other activities.

While our blog by no means should serve as a green light for people to file applications to change status or adjust status within 90 days, its purpose is to at least create awareness of another way of reading the 90 day provision that makes perfect sense as it encourages lawful conduct and awareness of a potential defense to those who are found inadmissible when they filed applications within 90 days to seek permission to engage in activities that may have not been consistent with their original visa.

 

Cyrus Mehta

DEPORTING A US CITIZEN CHILD? TAKE A LEAF OUT OF THE STATE DEPARTMENT’S BOOK ON BIRTHRIGHT CITIZENSHIP

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By Cyrus D. Mehta

This week, while we have all been stunned at the way Customs and Border Patrol (CBP) sent a four year old US citizen child packing out of the country to Guatemala, http://edition.cnn.com/2011/OPINION/03/23/navarrette.child.deported/?hpt=Sbin, even though her parents lived in the US, we can take some comfort that the State Department scrupulously adheres to birthright citizenship enshrined in the 14th Amendment of the US Constitution.

Contrary to the common notion -that parents come to the US to give birth to children so that they may become US citizens – some non-US citizen parents do not desire that their minor children remain US citizens, notwithstanding their birth in the US. Their main motivation is that if they choose not to live in the US permanently, they would rather that the child enjoys the citizenship of their nationality so that he or she does not suffer any potential impediments later on in that country, such as the inability to vote, attend educational institutions or stand for elected office. Often times, the country of the parent’s nationality and the United States lay claims on the child’s citizenship, and this may often create conflicts between the citizenship laws of the two countries, particularly if the child will return to its parents’ country and live there.

For instance, a child born to Indian citizen parents in the US can still claim to be an Indian citizen by descent, even though India does not otherwise permit dual nationality, provided that the parents declare that the child does not hold the passport of another country, http://www.mha.nic.in/pdfs/ic_act55.pdf. This may not be possible if the child is born in the US, and thus a US citizen and potentially an Indian citizen, since the State Department’s regulation provides that “[i[t is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid passport.” See 22 CFR §53.1. Therefore, if the child obtains an Indian passport while in the US, it will still need to depart the US with a US passport, and this may conflict with the Indian requirement of submitting a declaration that the child does not hold the passport of another country.

Moreover, even after the child has left the US, unless the child can effectively renounce US citizenship at a US Consulate (and that too could be problematic as a child cannot make a knowing renunciation), the child will most likely have to return to the US on the US passport. Regarding the renunciation of US citizenship by a minor, the State Department’s Foreign Affairs Manual at 7 FAM 1292 clearly states that parents or guardians cannot renounce or relinquish the citizenship of a child who acquired US citizenship at birth. The relevant extract from 7 FAM 1292 is worth noting:

  1. occasionally, CA/OCS or a post abroad will receive an inquiry from the parent of a child born in the United States who acquired US citizenship at birth protesting the “involuntary” acquisition of US citizenship.

  1. Jus soli (the law of the soil) is the rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes. The 14th Amendment states, in part, that: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

  1. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court examined at length the theories and legal precedents on which U.S. citizenship laws are based and, in particular, the types of persons who are subject to U.S. jurisdiction.

  1. Children born in the United States to diplomats accredited to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it [citation omitted].

  1. Parents or guardians cannot renounce or relinquish the U.S. citizenship of a child who acquired U.S. citizenship at birth.

While the FAM leaves open the possibility for a minor to renounce citizenship, there must be a determination by the consul whether the minor had the requisite maturity and knowing intent, free from parental influence. According to 7 FAM 1292(i)(3), “Minors who seek to renounce citizenship often do so at the behest of or under pressure from one or more parent. If such pressure is so overwhelming as to negate the free will of the minor, it cannot be said that the statutory act of expatriation was committed voluntarily. The younger the minor is at the time of renunciation, the more influence the parent is assumed to have.” 7 FAM 1292(i)(2) further states, “Children under 16 are presumed not to have the requisite maturity and knowing intent.” It should be noted, though, that even if a child successfully renounces US citizenship, upon reaching 18 years, the child has a six-month opportunity to reclaim US nationality. See INA § 351(b).

The deportation of the 4 year old child is one recent example. CBP’s sister agency, Immigration and Customs Enforcement (ICE), has also been notorious for detaining and deporting US citizens in recent times, http://stateswithoutnations.blogspot.com/2010/07/us-citizens-detained-and-deported-2010.html despite an ICE memo admonishing its officers to treat claims by US citizens with care and sensitivity, http://www.ice.gov/doclib/detention-reform/pdf/usc_guidance_nov_2009.pdf. In a time when a very vocal minority is advocating for the repeal of birthright citizenship, government agencies in charge of enforcing immigration laws ought not to be swayed by the passions of the day, and must scrupulously ensure that a child born in the US, regardless of the parents’ status, is treated as a US citizen under the 14th Amendment of the US Constitution, like the State Department does.