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?”

Death by a Thousand Cuts: Naturalization Backlogs

The Trump administration’s war on immigration has included an array of tactics. There have been full frontal assaults, such as the Muslim ban, cancellation of DACA, the border wall, and the RAISE Act. Simultaneously, the Trump administration is using the tactic of death by a thousand cuts: numerous assaults in the administrative agencies and courts intended to make immigration slower, more expensive, and painful. Here’s but one example. Continue reading “Death by a Thousand Cuts: Naturalization Backlogs”

Guide to Acquisition of U.S. Citizenship by Birth Abroad

Our newest publication is now available: Guide to Acquisition of U.S. Citizenship by Birth Abroad covers the legal requirements for a child born abroad to automatically acquire U.S. citizenship at birth, as well as the procedures to apply for a U.S. passport, consular report of birth abroad (CRBA), and/or U.S. Citizenship and Immigration Services (USCIS) Certificate of Citizenship. Continue reading “Guide to Acquisition of U.S. Citizenship by Birth Abroad”

What Counts as an American Institution of Research or International Organization for Purposes of Expeditious Naturalization?

You may qualify for expeditious naturalization in the United States if your U.S. citizen spouse is employed abroad by a listed American research institution or international organization.

Check out the below lists to see if you may qualify. Then, for more on expeditious naturalization, see here. Continue reading “What Counts as an American Institution of Research or International Organization for Purposes of Expeditious Naturalization?”

The RAISE Act Would Harm U.S. Families and Businesses

The Reforming American Immigration for a Strong Economy Act (RAISE) Act – introduced by Senators Tom Cotton and David Perdue, with the support of President Trump – would eliminate the immigration system that we know today and replace it with a points-based system that ignores the benefits of family unity and the needs of U.S. employers. Continue reading “The RAISE Act Would Harm U.S. Families and Businesses”

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.

Members of Congress Probing Potential EB-5 Related Securities Fraud by Kushner Companies

Members of Congress from both parties are investigating whether Kushner Companies’ EB-5 fundraising activities constitute securities fraud.

As has been widely reported, Kushner Companies recently put on a roadshow to market to Chinese investors a New Jersey real estate project called One Journal Square. The investments are structured such that investors may qualify for green cards through the EB-5 program, which requires a minimum $500,000 investment resulting in the creation of at least 10 U.S. jobs.

Initial reporting about the roadshow led the Kushner Companies to apologize for boasting about their ties to White House adviser Jared Kushner during the roadshow. “In a sector where investors are wary of failing projects and policy changes that would jeopardize their visas,” writes Alexandra Harney for Reuters, such boasts are meant to “reassure potential investors their EB-5 projects will be successful.”

Reuters subsequently reported that Kushner Companies’ activities may have crossed the line from boasting to misrepresentation. This perhaps makes the company vulnerable to charges of securities fraud by the U.S. Securities and Exchange Commission (SEC).  Specifically, advertisements by the company’s marketing agent in China contain multiple misrepresentations about the safety of the investment.

Continue reading “Members of Congress Probing Potential EB-5 Related Securities Fraud by Kushner Companies”

Kushner Companies EB-5 Activities Reported by Reuters and NY Times May Constitute Securities Fraud

As has been widely reported, Kushner Companies recently put on a roadshow to market to Chinese investors a New Jersey real estate project called One Journal Square. The investments are structured such that investors may qualify for green cards through the EB-5 program, which requires a minimum $500,000 investment resulting in the creation of at least 10 U.S. jobs.

Initial reporting about the roadshow led the Kushner Companies to apologize for boasting about their ties to White House adviser Jared Kushner during the roadshow. “In a sector where investors are wary of failing projects and policy changes that would jeopardize their visas,” writes Alexandra Harney for Reuters, such boasts are meant to “reassure potential investors their EB-5 projects will be successful.”

Reuters and the New York Times are now reporting that Kushner Companies’ activities may have crossed the line from boasting to misrepresentation. This perhaps makes the company vulnerable to charges of securities fraud by the U.S. Securities and Exchange Commission (SEC).  Specifically, advertisements by the company’s marketing agent in China contain multiple misrepresentations about the safety of the investment.

Continue reading “Kushner Companies EB-5 Activities Reported by Reuters and NY Times May Constitute Securities Fraud”

AmCham China 2017 White Paper: Visa Policy

AmCham China just published its 2017 White Paper on American Business in China. “With uncertainty stemming from political and economic transitions in both the US and China, perceptions of a deteriorating investment environment for foreign companies in China, and a slowing economy, 2017 will likely be one of the most challenging years in decades for U.S. companies in China,” it says. The Visa policy chapter focuses on: Continue reading “AmCham China 2017 White Paper: Visa Policy”

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”

CBP Handout on Inspection of Electronic Devices

U.S. Customs and Border Protection has a handout on Inspection of Electronic Devices, available here.  There is a section on “Why You May Be Chosen for an Inspection,” but it omits any mention of CBP’s legal position: that a person may be chosen for any reason or no reason at all: no reasonable suspicion is required. The notice also explains the procedures for return of seized devices.

 

 

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”