Students and Exchange Visitors Face Harsh New “Unlawful Presence” Rule from Trump Administration

May 3, 2019 Update: The U.S. District Court for the Middle District of North Carolina today issued a nationwide preliminary injunction that temporarily prevents the Department of Homeland Security (DHS) from enforcing the U.S. Citizenship and Immigration Services (USCIS) August 8, 2018 policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status. The preliminary injunction temporarily halts enforcement of the 2018 policy while the underlying case, Guilford College v. McAleenan, is resolved.

Continue reading “Students and Exchange Visitors Face Harsh New “Unlawful Presence” Rule from Trump Administration”

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”

Congressional Report Raises Concerns: Could Chinese Students and Scholars Association Members Be Denied Green Cards?

A new Congressional report asserts that Chinese Students and Scholars Associations (CSSAs) at U.S. colleges appear to be directly subordinate to and receive political direction from the Chinese Embassy and consulates. This report raises concerns: could the U.S. government deny green cards to CSSA members?

The report, entitled China’s Overseas United Front Work: Background and Implications for the United States (Aug. 24, 2018), was prepared by staff of the U.S.-China Economic and Security Review Commission, a bipartisan commission made up of 12 congressional members. Continue reading “Congressional Report Raises Concerns: Could Chinese Students and Scholars Association Members Be Denied Green Cards?”

More Chinese Student Visa Applicants Will Be Subject to Security-Related Delays

A State Department official has spoken on background to the Associated Press, saying that more Chinese applying for F-1 visas as graduate students in fields related to science and technology will need “special clearance from multiple U.S. agencies” and that such clearances are “expected to take months for each visa application.” Other nonimmigrant visa applicants seeking to visit or work in the U.S. who have backgrounds in science or technology may be subject to the same security checks. Continue reading “More Chinese Student Visa Applicants Will Be Subject to Security-Related Delays”

National Vetting Center Established by Trump Administration

A new National Vetting Center is being established pursuant to National Security Presidential Memorandum 9, signed by President Trump on February 6. The Center will coordinate the way agencies use biographic, biometric, and other data used to vet applicants for visas, admission to the United States, and immigration benefits, and in enforcement and removal (deportation) actions. The Center will be housed within the Department of Homeland Security (DHS). Continue reading “National Vetting Center Established by Trump Administration”

“Administrative Processing”: a Black Hole for Visa Applicants

For the uninitiated, “administrative processing” is State Department-speak for a temporary visa refusal pending further investigation of a visa application. (9 FAM Appendix E, 404). The applicant typically learns of the temporary refusal when, at the conclusion of the interview, the consular officer issues a written notice stating that under section 221(g) of the Immigration and Nationality Act no visa can be issued until additional administrative processing has been completed.

Security Advisory Opinions

Administrative processing may involve a request by the consular officer for a Security Advisory Opinion (SAO) from the Department as to whether the applicant poses a risk to the United States. Before issuing the SAO, the Department may in turn consult with other government agencies, such as law enforcement and intelligence agencies. There are various types of SAOs, such as:

(1) Condor SAOs, which are based on national security concerns, including a concern that the applicant may intend to engage in terrorist activity;

(2) Mantis SAOs, which are based on the applicant’s suspected access to sensitive technology with a potential military application and the unlawful exportation of that technology;

(3) Donkey and National Crime Information Center (NCIC) SAOs, which are based on name matches or “hits” occurring in various databases; and

(4) SAOs related to Communist Party members applying for K-1 or immigrant visas. Consular officers are warned not to reveal to applicants that a case has been referred to the Department for an SAO. (9 FAM Appendix E, 404).

An example of the SAO process gone awry: According to a 2017 report of the State Department’s Office of Inspector General (OIG), when the U.S. Embassy in Beijing sought SAOs on whether individuals were ineligible for visas under 8 U.S.C. 1182(e) because of involvement in forced abortion or sterilizations, the State Department “sometimes waited several years” before providing responses. More than 200 such SAO requests were stuck pending in the Bureau of Democracy, Human Rights and Labor. That Bureau, in turn told the OIG that it lacked the resources to completed the SAOs.

Other Types of Administrative Processing

Apart from SAOs, the term “administrative processing” may also be used by the State Department in various other contexts, such as

(1) when the consular post has decided to perform an investigation to verify information or to check for fraud, on issues such as the legitimacy of a marriage, an applicant’s education or work experience, the authenticity of a marriage or birth certificate, etc;

(2) after the interview if the consular officer’s decision is chosen for review by a supervisor at the consulate; or

(3) after an applicant has withdrawn his or her visa application.

Prevention

If you live abroad, apply for your visa as early as possible so that administrative processing is less likely to disrupt your travel schedule.

If you are in the U.S. as a nonimmigrant, such as a student or temporary worker, consider applying to renew your visa before it expires rather than afterwards. If you are subject to administrative processing, your unexpired visa normally will not be cancelled and can be used to apply for admission to the U.S., regardless of whether it is in the same or different visa category. (AILA DOS Liaison Q&As, Q13 (Oct. 19, 2017, AILA Doc. No. 17102030). That way you may be able to return to the U.S. on your existing visa while you wait for administrative processing of your new visa application.

How Long Does It Take?

According to the State Department’s website, applicants should wait 60 days for administrative processing to be completed before inquiring further with the Consulate:

Some visa applications require further administrative processing, which takes additional time after the visa applicant’s interview by a consular officer…. Most administrative processing is resolved within 60 days of the visa interview…. Before making inquiries about status of administrative processing, applicants or their representatives will need to wait at least 60 days from the date of interview or submission of supplemental documents, whichever is later.

During administrative processing, you can check your case status at the Consular Electronic Application Center (CEAC). You status will show as something like this:

But administrative processing may take much longer than 60 days. Administrative processing is a black hole because the reason for the temporary delay is obscured and the length of that delay is uncertain. Our firm usually follows up to check on the status of administrative processing after 60 days. We typically first contact the consular post, then if no timely response is received, we consider the actions described below.

Taking Action

If you are facing delayed administrative processing, consider the following actions:

  1. escalate the inquiry to a supervisor within the consular post
  2. contact the Department’s Visa Office
  3. follow up through the committee that provides liaison between the Department and the American Immigration Lawyers Association
  4. if the case involves a student, scholar, or professional in the sciences applying for a nonimmigrant visa to engage in science-related activities in the U.S., ask the International Visitors Office of the National Academies of Sciences, Engineering, and Medicine to file an inquiry with the State Department
  5. file a Congressional inquiry through a member who is willing to be helpful
  6. file a second visa application: while it may be an opportunity to include new supporting evidence, it may also result in slowing down the processing of both visa applications
  7. proactively filing a Form DS-5535, Supplemental Questions for Visa Application, to provide biographic data that may be helpful for any background/security check
  8. file a mandamus action in federal court.

Mandamus Actions in Federal Court

A mandamus action is a lawsuit filed to compel administrative agencies to act. The Mandamus Act, codified at 28 U.S.C. § 1361 says, in its entirety:

Action to compel an officer of the United States to perform his duty.

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

A mandamus plaintiff must demonstrate that: (1) he or she has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available.

Mandamus can be a relatively simple and quick remedy in situations where the government has failed to act when it has a duty to do so.

In cases where a visa applicant is seeking to compel a consular officer to process a visa application, the government likely will argue that such a claim is barred under a doctrine called “consular nonreviewability.” Although the law is not firmly settled, the courts generally have held under this doctrine that they lack authority to review consular decisions. See, e.g., Kerry v. Din, 135 S. Ct. 2128, 2140 (2015); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60 (D.C. Cir. 1999).

Still, the filing of a mandamus action often prompts the government to take whatever action is requested–such as issue a visa–and the case ultimately is dismissed.

Client Alert: State Dep’t Begins Stricter Vetting of Visa Applicants

U.S. Secretary of State Rex Tillerson sent four cables to consular officers between Mar. 10 and 17 with preliminary instructions for stricter vetting of U.S. visa applicants. The cables emphasize that “all visa decisions are national security decisions” and that additional screening may “may cause interview appointment backlogs to rise.” Continue reading “Client Alert: State Dep’t Begins Stricter Vetting of Visa Applicants”

President Trump Signs Revised Executive Order on “Protecting the Nation from Foreign Terrorist Entry”

President Trump has signed a revised Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States.” It goes into effect March 16. The ban fails to address the original version’s flaws and its thinly veiled scapegoating of Muslims and refugees. Continue reading “President Trump Signs Revised Executive Order on “Protecting the Nation from Foreign Terrorist Entry””

Trump’s Executive Order on “Protecting the Nation from Terrorist Attacks by Foreign Nationals”: Latest News and Summary

The Latest

Enforcement and interpretation of President Trump’s Executive Order (EO) on “Protecting the Nation from Terrorist Attacks by Foreign Nationals” are evolving rapidly, so check back here for updates.

2017-02-16: The Trump administration plans to unveil a revised EO on immigration next week and rescind the president’s initial travel ban, which has been entrenched in legal battles throughout the country, as reported in The Hill. President Trump said during a news conference on Thursday that he would unveil a more tailored travel ban “next week sometime.” The U.S. Department of Justice similarly informed the U.S. Court of Appeals for the Ninth Circuit, in the Washington v. Trump litigation: “Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.”

2017-02-09:  The U.S. Court of Appeals for the Ninth Circuit has denied the government’s motion for stay of the district court’s temporary restraining order (TRO). Translation: The TRO suspending implementation of the EO remains in place. The government may appeal to the U.S. Supreme Court. Continue reading “Trump’s Executive Order on “Protecting the Nation from Terrorist Attacks by Foreign Nationals”: Latest News and Summary”

Crimes Involving Moral Turpitude: Judge Posner’s Blistering Concurrence in Arias v. Lynch (7th Cir. 2016)

posnerJudge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is perhaps the most-cited legal scholar of the twentieth century. His reputations for brilliance and for rudeness are both on display in his concurring opinion in Arias v. Lynch (7th Cir. 2016). Continue reading “Crimes Involving Moral Turpitude: Judge Posner’s Blistering Concurrence in Arias v. Lynch (7th Cir. 2016)”

Communist Party Membership Makes Some Ineligible for U.S. Green Card and Citizenship

NPCDid you think the Cold War was over? The U.S. Immigration and Nationality Act still makes ineligible for permanent residence and citizenship certain persons who have been members of or affiliated with the Communist Party. The Chinese Communist Party (CCP) has some 80 million members, so this ground of ineligibility is a key issue for immigration lawyers representing Chinese clients.

Continue reading “Communist Party Membership Makes Some Ineligible for U.S. Green Card and Citizenship”

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”

Univ. of Northern New Jersey: a Federal Sting Operation Targeting Student Visa Fraud

unnjIn a first-of-its-kind sting operation, U.S. Immigration and Customs Enforcement (ICE) established a sham school in September 2013. The University of Northern New Jersey offered no classes or instructors. But for a price it offered to shady recruiters an opportunity to obtain fraudulent student visas for foreign customers. Continue reading “Univ. of Northern New Jersey: a Federal Sting Operation Targeting Student Visa Fraud”