The Proposed Changes to Public Charge: What You Need to Know

Over the weekend, the Trump administration took steps to radically transform a little-known provision of immigration law that could have an outsized impact on legal immigration. In proposed regulations posted on Saturday, the Department of Homeland Security (DHS) indicated that it would redefine the legal term “public charge” to block green cards for low-income immigrants who receive non-cash public benefits such as Medicaid or food stamps. Continue reading “The Proposed Changes to Public Charge: What You Need to Know”

Trump’s Proposed “Public Charge” Rule Intensifies War on Legal Immigrants

On September 22, 2018, the Trump administration announced the upcoming publication of a proposed rule that if implemented as written, would prevent immigrants from securing lawful permanent residence and remaining with their families in the United States, simply because at any time in the past, they received some type of basic health care support, nutrition assistance, or other vital services. Continue reading “Trump’s Proposed “Public Charge” Rule Intensifies War on Legal Immigrants”

What Type of China Birth Certificate Is Required for U.S. Immigration?

If you were born in Mainland China and are applying for a U.S. green card, you will need to submit a China birth certificate. That’s true regardless of whether you are filing a Form I-485, Application to Adjust Status, with USCIS or are applying for an immigrant visa at a U.S. consulate abroad. Both agencies look at specifications in the State Department’s Reciprocity Schedule for what type of birth certificate is required. The Reciprocity Schedule was updated on Apr. 4, 2016. It now states:
Continue reading “What Type of China Birth Certificate Is Required for U.S. Immigration?”

Can I Visit the U.S. While Waiting for My Immigrant Visa?

Here’s a question I’m often asked:

I am married to a U.S. citizen. He has started the process for me to get a green card by filing a Form I-130, Petition for Alien Relative. Once it’s approved by USCIS, I will apply for an immigrant visa at the U.S. Embassy in my home country. Can I visit America while I’m waiting to immigrate? I currently have a valid B1/B2 (visitor for business or pleasure) visa.

One variation on this question is that that the individual doesn’t hold a B1/B2 visa but instead seeks to enter as a visitor under the visa waiver program, also known as Electronic System for Travel Authorization (ESTA).

In most cases, visiting the U.S. with a visa or a visa waiver is OK. Still, there is some level of risk of that you will not be admitted. That risk may be very low or significant, depending on your individual circumstances.

The Requirement of Nonimmigrant Intent

To enter the U.S. as a visitor, you must prove to a Customs and Border Protection (CBP) officer at the port of entry that that you (a) are not an intending immigrant, (b) have an unabandoned foreign residence, and (c) are coming to the U.S. temporarily.[1] This set of requirements is often loosely described as “nonimmigrant intent.” Here’s what these requirements mean:

  • Not being an “intending immigrant” means that on this particular trip you intend to limit your activities to what is allowed for visitors and not immigrate.[2]
  • An unabandoned foreign residence means that you have a home in a foreign country. You need not own the home. You must intend to return there as your principal, actual dwelling place after visiting America.[3]
  • Coming to the U.S. temporarily means for a limited time, not indefinitely.

The CBP Officer’s Concerns

You don’t need to volunteer to the CBP officer that you have a U.S. citizen spouse and a green card in process. But the officer may be able to tell from available databases. If so, the CBP officer’s concern is likely to be that you may be seeking to “jump the line,” i.e., intending to move to the U.S. without waiting the 6-12 months or so it may take to get the immigrant visa. CBP keeps an eye out for people posing as mere visitors who actually intend to move to the U.S. and to file with USCIS a Form I-485, Application to Adjust Status, to get a green card without the need to leave the country.[4] CBP also keeps an eye out for people posing as mere visitors who actually intend to give up their residence abroad and live in the U.S. until their immigrant visa appointment.

Ability to Overcome the CBP Officer’s Concerns

There is no magic list of documents you can show the officer to guarantee your entry. There are no magic words you can say either. That’s because the CBP officer will decide whether you qualify to enter based on the totality of the circumstances. Some key factors include:

  • Your ability to explain the limited purpose and duration of your proposed stay in the U.S.
  • Whether you and/or your U.S. citizen spouse are employed abroad.
  • Whether you have children enrolled in school abroad.
  • Whether you own or rent a home abroad.
  • Holding a return ticket abroad.
  • Prior visa refusals or immigration violations.
  • Whether your travel patterns make it appear that you are trying to live in the U.S. prior to issuance of the immigrant visa. (For example, you previously stayed in the U.S. for the entire period allowed by CBP, left just briefly, and then came back for a long period).
  • Whether it appears you are trying to move your personal belongings to the U.S., either in your luggage or shipped separately.
  • Whether your demeanor and/or inconsistencies in your story cause the officer to doubt your credibility

Weighing the Risks and Benefits

The main risk of trying to enter as a visitor while your green card is in process is that instead of admitting you, the officer may question you in detail in a room called “secondary inspection.” The officer may then ask you to withdraw your application for entry or may order you deported. The legal basis for that decision would likely be one of the following:

  • You have made a willful misrepresentation, i.e., lied to the officer.[5] This could include lying about whether you are married to a U.S. citizen, the purpose of your trip, or how long you intend to remain in the U.S.; or
  • You lack valid entry documents, in that you intend to immigrate but lack an immigrant visa.[6]

If you are ineligible for admission for one of those reasons, the officer may as a matter of discretion ask you whether you are willing to withdraw your application for admission. Or the officer may deport you. That is called “expedited removal,” a procedure that allows CBP officers to official to summarily remove a noncitizen without a hearing before an immigration judge.[7]

Expedited removal carries a 5-year bar to reentering the U.S. This means that you cannot re-enter the U.S. for a period of 5 years unless you apply for and are granted permission to reapply for admission (Form I-212).

If the basis of the expedited removal is misrepresentation, then a lifetime bar to entry also applies, unless you apply for and are granted a waiver.

As mentioned at the outset, the level of risk is different for each person It may be anywhere from very low to significant, depending on your individual circumstances. You should realistically analyze the risks and benefits to determine whether to make the trip. Our law firm is available to help you decide and to advise you about CBP procedures, what evidence to carry, and how to answer the CBP officers’ questions in a way that is both truthful and helpful to seeking entry.

Endnotes

  1. INA § 101(a)(15)(B). See also INA § 214(b) (“Every alien [other than H-1B, L, or V nonimmigrants] shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.”)
  2. Letter, LaFleur, Business and Trade Services, Benefits Branch, INS, HQ 1815-C (June 18, 1996) (approved I-140 “may not be, in and of itself” a reason to deny TN admission). See Matter of H-R-, 7 I. & N. Dec. 651 (Reg. Comm’r 1958) (Applicant withdrew immigrant visa application in order to more quickly obtain visitor’s visa. Six months after entering U.S., he applied for adjustment of status. Held: “The fact that the applicant previously expressed a desire to enter the United States as an immigrant–and may still have such desire–does not of itself preclude the issuance of a nonimmigrant visa to him nor preclude his being a bona fide nonimmigrant” for purposes of adjustment.); Matter of Wellhofer, 12 I. & N. Dec. 522 (Reg. Comm’r 1967) (following Matter of H-R-).
  3. See INA § 101(a)(33) (defining “residence”).
  4. Don’t view your trip to the U.S. as an opportunity to adjust status. As mentioned below, a willful misrepresentation to CBP may lead to a lifetime bar on returning to the U.S. Further, even if you don’t make a misrepresentation to CBP, a preconceived intent to immigrate after entering as a visitor is a negative discretionary factor which could lead USCIS to deny of adjustment. See Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980) (Respondent was admitted as a nonimmigrant visitor for pleasure with a border crossing card. He married a U.S. citizen the same day. Assuming he had a preconceived intent to remain permanently at the time of entry as a nonimmigrant, it is INS policy per OI 245.3(b) that an adjustment applicant should not be denied as a matter of discretion solely on this basis where substantial equities are present in the case. Here, the U.S. citizen wife and child are substantial equities. Notably, the respondent was not charged with any fraud or misrepresentation.); Matter of Ibrahim, 18 I. & N. Dec. 55 (BIA 1981) (limiting Cavazos’ holding to immediate relatives). The State Department takes a slightly different approach to evaluating cases where an individual has entered as a visitor and then files an I-485. According to State Department policy, if within 90 days of entry a person engages in conduct inconsistent with representations made to CBP, such as by engaging in unauthorized employment or filing for adjustment of status, there is a presumption that the individual prior representations were willful misrepresentations.
  5. INA § 212(a)(6)(C).
  6. INA §212(a)(7).
  7. See INA § 235(b)(1).

Applying for a B1/B2 (Visitor) Visa as the Spouse of a U.S. Expat

I’ve been asked several times today about how the spouse of a U.S. citizen expat can apply for a B1/B2 (visitor for business or pleasure) visa. The question typically goes something like this:

I am a U.S. citizen. I have lived in China for 5 years. My wife has been denied a U.S. tourist visa twice, once before and once after we married. We rent an apartment here, she has her own business, and I am employed as an engineer for Ford. We don’t want to apply for a green card because we plan to continue to live in China for the foreseeable future. We just want to visit the U.S. For the first visa application, I wanted to introduce my then fiancée to my parents. (My father has since passed away). For the second visa application, I wanted to bring my wife to Boston to attend my brother’s wedding. Is there anything you can do to help?

Continue reading “Applying for a B1/B2 (Visitor) Visa as the Spouse of a U.S. Expat”

Americans Scrambling to Submit Immigrant Petitions for Relatives

Facing a proposed law that slashes family-based immigration, Americans are scrambling to law firms to petition for visas for loved ones abroad to come here. NPR reports that President Trump wants Congress to limit the number of family members who Americans can sponsor to join them in the United States. The proposal has caused panic in some communities. Continue reading “Americans Scrambling to Submit Immigrant Petitions for Relatives”

Choosing the Best Visa Strategy for a Fiancée or Spouse: K-1, K-3, or CR1/IR1 Immigrant Visa?

A U.S. citizen planning to file a visa petition for a foreign fiancée or spouse who is outside the U.S. may have various strategies to choose from. The most common options are the K-1 fiancée visa, the K-3 visa, and the CR1/IR1 immigrant visa. This article analyzes the factors to be considered in choosing among such strategies. (The article does not discuss less commonly used strategies for foreign fiancées and spouses, such as applying for an H-1B or L-1 work visa). Continue reading “Choosing the Best Visa Strategy for a Fiancée or Spouse: K-1, K-3, or CR1/IR1 Immigrant Visa?”

Erler v. Erler: Enforcement of Form I-864, Affidavit of Support, Obligations

Affidavit of Support Help CenterA wealthy real estate agent must pay to support his immigrant ex-wife per his Form I-864, Affidavit of Support, even though she is now living with and being supported by her adult son. That’s the ruling of the U.S. Court of Appeals for the Ninth Circuit in Erler v. Erler, 2016 U.S. App. LEXIS 10361 (9th Cir. June 8, 2016). Continue reading “Erler v. Erler: Enforcement of Form I-864, Affidavit of Support, Obligations”

Special Considerations for Visa Processing at U.S. Consular Posts in China

Q&ASince our firm’s offices are in China, we are often asked by lawyers in the U.S. to work as local counsel for U.S. visa applications at the U.S. Consulates in Beijing, Guangzhou, Shanghai, Chengdu, and Shenyang. We make it our business to know each consulate’s policies, practices, and procedures. Here are the basic tips we give most frequently to stateside lawyers: Continue reading “Special Considerations for Visa Processing at U.S. Consular Posts in China”