New DHS Public Charge Rule

On August 14, 2019, the U.S. Department of Homeland Security (DHS) published a final rule governing the public charge grounds of inadmissibility, found at section 212(a)(4) of the Immigration and Nationality Act (INA). Unless litigation halts implementation of the rule, it will go into effect after 60 days, on October 15, 2019. Here is a summary provided by the American Immigration Lawyers’ Association (AILA).

Continue reading “New DHS Public Charge Rule”

Findream LLC Operator Indicted for OPT-Related Scam

The below July 26, 2019, press release is from U.S. Immigration and Customs Enforcement. Huang Weiyun has been indicted on allegations that, among other things, she sold letters falsely verifying that F-1 students were eligible for optional practical training (OPT) based on employment with her company, Findream LLC.

CHICAGO — A Chinese businesswoman was indicted by a federal grand jury Thursday on fraud charges for allegedly providing false verifications of employment for Chinese nationals seeking to stay in the United States on student and work visas.

This indictment was announced by the following agency heads: U.S. Attorney John R. Lausch Jr., Northern District of Illinois; Special Agent in Charge James M. Gibbons, U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI); and Special Agent in Charge Jeffrey S. Sallet, FBI Chicago. 

Weiyun Huang, also known as “Kelly Huang,” 30, of Beijing, China, is charged with one count of conspiracy to commit visa fraud and five counts of visa fraud, according to an indictment returned July 25 in U.S. District Court in Chicago. 

Huang has been in federal custody since March after her arrest in the Northern District of California.  Her arraignment in federal court in Chicago has not yet been scheduled.

An F-1 visa permits a foreign national to study in the United States at a university or other academic institution.  An F-1 visa holder could extend the visa by participating in a program that required the student to obtain temporary employment in their area of study. 

An H-1B visa permits U.S.-based employers to temporarily employ foreign nationals in specialty occupations.  Foreign nationals with an H-1B visa are permitted to stay in the U.S. for three years, with the possibility of extending their stay to six years.

According to the indictment, Huang founded two companies — Findream LLC and Sinocontech LLC — for the purpose of employing foreign nationals in the United States. 

Huang advertised Findream as a “startup company in technology services and consulting,” with clients in China and the U.S. 

Huang used a China-based website, “Chinese Looking for Job,” and a China-based WeChat platform, “Job Hunters of North America,” to advertise Findream and Sinocontech to F-1 visa holders in the U.S. seeking employment and H-1B visas.

In reality, the companies did not deliver any technology or consulting services, nor did they employ any of the individuals who responded to the ads, the indictment states.  In exchange for a fee, Huang and the companies provided written proof of employment to their customers, knowing that the companies did not actually employ them, the charges allege. 

Huang, Findream and Sinocontech also provided false offer letters and verification of employment letters as purported evidence of employment, knowing the forms were bogus, the indictment states.

The fraud scheme allowed at least 2,685 customers to list Findream or Sinocontech as their employer to stay in the U.S. on the visas, according to the indictment.  Huang and her two companies received at least $2 million from customers for whom they agreed to falsely certify employment, the indictment states.

Findream and Sinocontech, which were incorporated in California and Delaware, respectively, are also charged in the indictment. 

Findream is charged with one count of conspiracy to commit visa fraud and four counts of visa fraud; Sinocontech is charged with one count of conspiracy to commit visa fraud and one count of visa fraud.

The public is reminded that an indictment contains only charges and is not evidence of guilt.  The defendants are presumed innocent and entitled to a fair trial at which the government has the burden of proving guilt beyond a reasonable doubt. 

Each count of visa fraud is punishable by up to 10 years in prison, while the conspiracy count carries a maximum sentence of five years.

Assistant U.S. Attorney Shoba Pillay, Northern District of Illinois, prosecuted this case.

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.

Continue reading “Can I Visit the U.S. While Waiting for My Immigrant Visa?”

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”

Visas for Parents to Accompany F-1 Student to the U.S.

The B-2 (visitor for pleasure) visa is as flexible as a world-class gymnast. The State Department has announced that a B-2 visa may be used by parents to accompany a minor with an F-1 (student) visa to the U.S.

As background, its well known that an F-1 student’s spouse and children (under age 21) can get F-2 visas to accompany the student in the U.S. Children in F-2 status are able to attend public school in the United States.  Spouses in F-2 status may not work. Procedurally speaking, F-2 visa applicants will need to obtain a Form I-20 (Certificate of Eligibility for Nonimmigrant F-1 Student Status) from the F-1 student’s school but will not need to pay the SEVIS fee.

But what about other family members of the F-1 student besides the spouse and unmarried children? F-2 visas are unavailable to parents, in-laws, or adult sons and daughters of an F-1 student.

The State Department says that the B-2 classification is appropriate for noncitizens who are members of the household of another person with F-1 or other long-term nonimmigrant status. Other examples include cohabitating partners or elderly parents of temporary workers, students, or diplomats posted to the U.S.

Household members may be allowed to stay in the U.S. for the same period as the long-term nonimmigrant relative they are accompanying. For example, if an F-1 student is admitted to a 4-year high school program in the U.S., the parents may be able to stay in the U.S. for the same period. At the port of entry, they may request that the supervisor initially admit them for a period of one year. Extensions in increments of up to six months are available thereafter.

Here’s the rule:

9 FAM 402.2-4(B)(5) Cohabitating Partners, Extended Family Members, and Other Household Members not Eligible for Derivative Status

(CT:VISA-1; 11-18-2015)
(Previous Location: 9 FAM 41.31 N14.4; CT:VISA-2195; 10-14-2014)

The B-2 classification is appropriate for aliens who are members of the household of another alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien’s visa classification. This is also an appropriate classification for aliens who are members of the household of a U.S. citizen who normally lives and works overseas, but is returning to the United States for a temporary time period. Such aliens include, but are not limited to the following: cohabitating partners or elderly parents of temporary workers, students, diplomats posted to the United States, and accompanying parent(s) of minor F-1 child-student. B-2 classification may also be accorded to a spouse or child who qualifies for derivative status (other than derivative A or G status) but for whom it may be inconvenient or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa, provided that the derivative individual intends to maintain a residence outside the United States and otherwise meets the B visa eligibility requirements. If such individuals plan to stay in the United States for more than six months, they should be advised to ask the Department of Homeland Security (DHS) for a one-year stay at the time they apply for admission. If needed, they may thereafter apply for extensions of stay, in increments of up to six months, for the duration of the principal alien’s nonimmigrant status in the United States. You should consider annotating to indicate the purpose and length of stay in such cases.

While the B-2 visa is flexible, there are important limitations. Most importantly, like F-1 visa applicants, B-2 visa applicants must prove they meet the “nonimmigrant intent” requirement. This means they must have an unabandoned residence abroad to which they intend to return after a temporary stay in the U.S. Generally speaking, a “residence” refers to one’s main home where they sleep most nights and to which they will return after temporary absences. In deciding whether a B-2 applicant meets this requirement, the officer will consider whether they have such strong family, economic, cultural, and other ties to their home country that the consular officer is persuaded the applicant will return home upon completion of the stated purpose of the visit. For details, see Proving Nonimmigrant Intent for a U.S. Visa.

The U.S. Embassy in Beijing posts this FAQ:


Q.6 My child is studying in the United States. Can I go live with him?
While you can use your own B-1/B-2 visa (or travel under the Visa Waiver Program, if eligible) to visit your child, you may not live with your child unless you have your own immigrant, work, or student visa.

That FAQ is a fair interpretation of the law to the extent that a B-2 visa is only for persons who “reside” (live) abroad and are coming to the U.S. just temporarily. For a parent who wishes to accompany an F-1 student to the U.S. for multiple years, it can be hard to draw a distinction between prohibited intent to abandon their foreign residence (living in the U.S.) and permissible temporary stay in the U.S. Yet that’s what the B-2 applicant needs to prove to the consular officer.

Where the B-2 visa applicant seeks to accompany an F-1 student, you can anticipate that a consular officer will also scrutinize the student’s lawful status and nonimmigrant intent. If the student has violated status or lacks nonimmigrant intent, the B-2 visa application will likely be denied.

Another challenge is that B-2 visitors in the U.S. are not authorized to work. So a parent applying for a B-2 visa will need to prove sufficient savings to cover living expenses and the child’s tuition for the entire contemplated period in the U.S.

An example of a strong B-2 visa application may be where there are compelling reasons for the child to study in the U.S., such as in a special education program or a gifted program that is not available in the home country. In such compelling situations, a U.S. consular officer may understand that a parent may be willing to take a prolonged (but still temporary) leave from a job in his or her home country just so the child can take advantage of the unique educational opportunity.

There may be other ways to achieve the same result. For example, the parent may apply for a U.S. work visa, such as an H-1B, J-1, L-1, or O-1, and the child may be able to apply for either the F-1 student visa or the dependent visa corresponding to the parent’s work visa (H-4, J-2, L-2, or O-3).

Feel free to schedule a consultation with our firm to discuss this in further detail.

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”

AmCham China Addresses U.S. Visa Policy in 2018 White Paper

2018 is a historic year for American companies operating in China: as China marks its 40th anniversary of economic reform and opening, AmCham China is issuing the 20th edition of its American Business in China White Paper. This paper is a comprehensive assessment of the operating environment for foreign companies in China.

It was a pleasure to participate in drafting the chapter on U.S. visa policy, which discusses the following topics:

  • Controlling nonimmigrant visa appointment waiting times in China
  • USCIS international entrepreneur rule
  • Subjecting EVUS registrants to questions about social media use
  • Inadequate annual H-1B visa cap
  • Barriers to permanent residents taking assignments abroad
  • Need for a Global Entry enrollment center in Beijing

To read the Visa Policy chapter, see here. To read the entire White Paper, see here.

President Trump Rescinds Obama-Era Goal to Speed Visa Processing

President Trump on June 21 rescinded an executive order issued by former President Obama in 2012 that sought to speed up visa interview wait times for nonimmigrant visa applicants, including visitors for business or pleasure, students, and other temporary visitors. More visa delays and denials are likely as a result of the Trump administration’s reduced emphasis on efficiency as well as new, in-depth vetting questions the administration is putting into place. Continue reading “President Trump Rescinds Obama-Era Goal to Speed Visa Processing”

“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.

H-1B Visas: USCIS and Dep’t of Labor Tighten Rules and Investigate Fraud

While the H-1B petitions submitted for the lottery this cap season were still in transit to the USCIS, both the USCIS and the DOL announced several measures aimed at detecting H-1B visa fraud and abuses. The rules focus on computer programmers, site visits, and protecting American workers. Continue reading “H-1B Visas: USCIS and Dep’t of Labor Tighten Rules and Investigate Fraud”

Tell CBP: Don’t Spy on Chinese Travelers’ Social Media

U.S. Customs and Border Protection (CBP) has published a Feb. 21, 2017, notice of its intent to collect Chinese travelers’ social media account information. There is a 60-day window for public comment. Tell CBP this is a bad idea.

2017-04-12 Update: The American Chamber of Commerce-China has submitted a comment to CBP explaining why they oppose the rule. See here.

Continue reading “Tell CBP: Don’t Spy on Chinese Travelers’ Social Media”

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”