Cambridge Immigration Law
Cambridge Immigration Law

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Executive Proclamation About Immigration

April 23, 2020

Yesterday, the White House issued the Executive Proclamation against immigrants/immigrants. The order is at https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/ .

What does the Executive Proclamation actually do? Right now–NOTHING! For weeks most US embassies and consulates have been closed for visa processing, with certain emergency exceptions including visas for health care workers. Thus, unless a case fit an embassies criteria for emergencies, the applicant was not going to get a new immigrant or nonimmigrant visa.

That situation at the embassies has no end date. In contrast, the Executive Proclamation is currently set to expire in 60 days. In 60 days, it is possible that the embassies would have been closed anyway.

The Executive Order is a pointless, useless order that serves to stoke xenophobic politics.

What could the Executive Order do? Once the embassies and consulates reopen, they should begin processing cases as “normal” (Trump “normal” includes the Travel Ban). That won’t happen if the Executive Order is in effect. The Executive Order will bar most employment-based immigration (except for EB5 investors) and most family-based immigration (except for spouses of US citizens and children of US citizens).

Who is NOT affected by the order? The order applies to people who as of April 22, 2020 are outside the US, do not have an immigrant visa, and do not have some non-visa documents to allow them to enter the US. It appears that the order does not apply to people seeking “nonimmigrant” visas.

Further exceptions to the order are lawful permanent residents of the US, medical professionals coming to the US to provide COVID healthcare services, EB5 investor visa applicants, spouses and children of US citizens (but NOT parents of US citizens) visa applicants, families of members of US armed forces, SI and SQ visa applicants, and others whom the US government deems to be worthy of entering.

If you have a case with my firm, please feel free to contact me to talk about the impact of this order. If you are not a client, please contact the office to set up a consultation about how this order affects you.

American Immigration Lawyers Association: Talking Points about Tweet

April 22, 2020

Below are excerpts from a publication released yesterday by the American Immigration Lawyers Association in response to Trump’s “tweet” about limiting “immigration into the US.” All bullet points below are authored by AILA, although edited down to the most important points for my firm’s clients.

From AILA:

  • Unfortunately, this announcement is not a surprise. In the face of growing questions and criticism about his handling of the COVID19 crisis, it was only a matter of time before President Trump resorted to distraction, blame, and fearmongering.
  • There are no details and no language because this isn’t a policy, it is a political strategy. If or when the Administration turns this into a policy, it would be nothing short of a disaster. It would divert attention from the crisis at hand and would be a waste of precious time and resources that should be focused on the health and safety of the American people.
  • During this crisis we have seen first-hand the importance of the agriculture workers who put food on our table, healthcare workers who care for the sick, scientists and researchers searching for a cure, and the factory workers and truck drivers providing critical supplies. Regardless of where we were born, we all have an important role to play in building a better future.
  • Now is the time for us to stand shoulder to shoulder and work toward the day that this crisis is behind us. Isolation won’t make America stronger; fear and division can’t take the place of unity and determination.”
  • To restore the health of the country, both physically and economically, we need to keep our focus on moving forward together. Trump’s tweet, if policy, would do nothing to keep us safe from the virus and would be catastrophic for our economy.
  • The President of the United States has a lot of authority over immigration and we have seen that power used by the Trump administration to cause human suffering and economic pain. But, the power of the President is not unlimited and if the administration were to attempt a power grab of this magnitude it would be far beyond anything that has ever been attempted or contemplated in our lifetime.
  • We have seen the human and economic pain caused by the President’s previous efforts to assert his power over immigration. Now is not the time for another battle over executive overreach. If this were actually turned into a policy, the administration will have pushed past the brink of what the Constitution allows.
  • The President is playing fast and loose with his executive authority. We’ll wait to see what the Order says, but it’s more likely his tweet was a campaign message and in the form of a questionable exercise of executive authority.
  • Since the outbreak began, we have seen a renewed sense of interdependence and mutual care rise from all corners of our nation. We have learned the key role that U.S.- and foreign-born essential workers play to keep our society moving and our families safe.
  • America is facing a public health crisis unlike any we’ve faced in our lifetimes. We desperately need a more robust public health response so that we can get our society and economy back on track. This is a distraction from that priority. It’s all of us against the Coronavirus and people across America must stand together and resist extreme policies and politicians that seek to separate us in a moment of national crisis. Despite how uncertain this moment feels, America is at her best when we band together and take care of one another.
  • This is a sign of what is to come in the months ahead. Americans are tired of polarization and division and should not allow politicians to sow fear and mistrust. We must stand together and defend our country against this virus.

Cite as AILA Doc. No. 20042109.

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Green card approval without USCIS interview?

April 21, 2020

 

AILA-Practice-Alert_-USCIS-Waiving-In-Person-Interview-Requirement-in-Some-Instances-During-COVID-19-PandemicDownload

Yesterday, the American Immigration Lawyers Association reported that based on a survey of AILA members, it appears that in some cases USCIS is approving some family-based and employment-based green cards without an interview. Interviews, which are normally a requirement for most green-card cases, cannot be conducted until at least May 4 because USCIS is closed due to COVID. Waiving the interview requirement would be tremendously helpful to applicants awaiting decisions on their cases. Further, waiving the requirement will help USCIS reduce the backlog that it will inevitably face once USCIS re-open for in-person business.

If you have questions about this issue, please contact my office to set up a consultation.

Unknown: The Implications of Last Night’s “Presidential” Tweet about Immigration

April 21, 2020

Last night, Trump tweeted that he was closing immigration to the US. No one knows what that means. USCIS is the agency that processes immigration in the US. The Department of State’s embassies and consulates process US immigration from outside the US. The worst case scenario is that Trump actually effect a closure of both agencies’ immigration operations. While there is no “best” case scenario following such a hateful, incoherent xenophobic statement, the least worst thing that could happen is that Trump does not actually issue an order/proclamation doing what he claimed. With his record of inconsistency, that is possible. If he does make such an order, the “best” case scenario would be for the order to only affect one agency and for that order to be enjoined by a court, allowing operations to continue until the legal case goes to court.

My plan is to continue filing applications until USCIS and/or DOS tell us not to. Unfortunately, many cases will be stalled due to USCIS’s and DOS’s current in-person closures and restrictions. Nonetheless, USCIS continues behind the scenes processing of cases and in recent weeks has given indications that it is looking for creative solutions such as waiving in-person interviews and new biometrics, in order to allow cases to continue to process and be adjudicated.

If you have questions about immigration, please contact me to set up a consultation to discuss.

COVID & Change/Extension of Visa Status

April 13, 2020

USCIS/DHS just published the following statement about COVID Related Change/Extension of Visa Status:

The Department of Homeland Security (DHS) recognizes that there are immigration-related challenges as a direct result of the coronavirus (COVID-19) pandemic. We continue to carefully analyze these issues and to leverage our existing resources and authorities to effectively address these challenges. DHS also continues to take action to protect the American people and our communities, and is considering a number of policies and procedures to improve the employment opportunities of U.S. workers during this pandemic.

Generally, nonimmigrants must depart the United States before their authorized period of admission expires.  However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19.  Should this occur, the following options are available to nonimmigrants: 

Apply for an Extension.  Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS).  U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing.

If You File in a Timely Manner.  Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

Flexibility for Late Applications. USCIS reminds petitioners and applicants that it may excuse a nonimmigrant’s failure to timely file an extension/change of status request if the delay was due to extraordinary circumstances.

Under current regulations, and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS may excuse the failure to timely file if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate in its discretion on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.

Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.

Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure.  To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center at 1-800-375-5283. 

For More Information

USCIS will provide further updates as the situation develops and will continue to follow the Centers for Disease Control and Prevention’s guidance. Please visit uscis.gov/coronavirus for the latest facts and other USCIS updates.

Education and precautions are the strongest tools against infection. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.

Noncitizens Divorcing During COVID

April 10, 2020

Divorcing During COVID

At any given time I represent clients who are in the process of divorcing a spouse. My representation on these cases ranges from joint I-751 petitions with notice to USCIS of the pending divorce to I-751 waiver petitions based on divorce to I-360 self-petitions based on abuse to an immigrant who wants to marry a US citizen but who still is married to someone else.

Right now COVID presents many challenges to clients who want to process the divorce. Family courts in MA as closed to the public, except for emergencies. However, the courts have expanded filing options and even options for obtaining judicial orders without a hearing. At this point, it does not appear a final order of divorce can be obtained without a hearing.

I work with many family law attorneys around Massachusetts who represent my immigration clients on family matters. One of my favorite parts of my job is collaborating with attorneys who specialize in other areas of law.

If you have legal needs related to immigration and divorce, contact me. I will be happy to discuss representation on immigration matters and collaboration with your family law attorneys.

H1B to Marriage Green Card?

April 8, 2020

Right now uncertainty is a part of life. Will I stay healthy? Will the people I love stay healthy? Will I keep my job?

For people in the U.S. on nonimmigrant visas tied to their employment, this is an especially uncertain time. For example, individuals in the US on H1B visas must keep their employment in order to keep their H1B status and lawfully remain in the US. What should you do if your H1B employment may be at risk?

Every week I meet couples made up of a US citizen and an H1B holder. They are in love and they plan to get married, but they are not sure when or where they will get married. Usually by the time they are in my office, they are getting closer to getting married, and a talk with me sometimes is all is takes for people to take the final step to tie the knot. It’s a fun part of my job!

Some people worry about getting married “just for a green card.” Correct–that is not allowed and I won’t help you with your case if the marriage is “just for the green card.” However, getting married now, instead of this summer or next year, because you need to maintain immigration status is not getting married “just for the green card.” It is making a decision for your future based on what is going on right now.

I give couples the example of healthcare. What if immigration status were not an issue? What if you were in a serious relationship with someone who has healthcare through employment but then loses the employment and therefore will lose healthcare soon? What if your partner needs prescription medication? Care for chronic illnesses? Or, an emergency? With these uncertainties, you and your partner decide to get married so that your partner can get healthcare through your employment-based healthcare plan. That is not getting married “just for the health insurance.” It is doing what you need to do to protect someone you love.

That’s the way to look at getting married now so that you can protect your partner’s ability to remain lawfully in the US.

If you or your partner risk losing H1B status in this uncertain time, you should consult with an immigration attorney to find out if there are ways to help you or your loved one stay living and working in the U.S.

USCIS Offices will remain closed until 5/4/2020.

April 3, 2020

USCIS offices have been closed since mid-March and were initially scheduled to reopen in early April. USCIS just announced that USCIS in-person services will remain closed until at least 5/4/2020.

Your case may still continue to process with USCIS. In some cases, USCIS will reuse previously obtained biometrics and apply them to currently processing cases. That would allow USCIS to approve certain types of applications, such as I-765 Application for Employment Authorization and I-131 Application for Advance Parole.

However, without biometrics, USCIS is unable to approve other types of cases such as I-485 Application for Adjustment of Status, N-400 Application for Naturalization, and I-589 Application for Asylum. Further, many of those applications (plus others) require in-person interviews, and unless USCIS establishes alternatives to in-person interviews, USCIS will not be able to approve applications for citizenship, asylum, and most applications for adjustment of status.

I have a green card. Can I be a “public charge”?

March 30, 2020

The new public charge rules implemented by this Administration are causing extreme stress and confusion among immigrant communities and their advocates.

A question that frequently has arisen in my practice is whether a “green card” holder is subject to public charge rules. The answer is, generally, no. A green card holder with a ten-year green card or a two-year (conditional) green card is not subject to the public charge rules. This means that the green card holder’s income does not matter after s/he obtains her green card, and does not matter at the time the green card holder files Form I-751 to remove the conditions of the two-year card. Also, public benefits for which the green card holder is legally eligible will not affect her/his eligiblity to maintain the green card.

There are two important exceptions. First, if the green card holder did not disclose prior use of public benefits at the time of obtaining the green card and was required to disclose such benefits, those benefits could come back to bite the green card holder from the perspective of misrepresentation. That means that USCIS may allege that the green card holder lied to get the green card.

The second important exception is a green card holder who leaves the US for more than 180 days. Upon returning to the US, CBP (and USCIS) can inquire about the green card holder past use or future use of public benefits. See https://www.federalregister.gov/documents/2019/08/14/2019-17142/inadmissibility-on-public-charge-grounds, which states: “DHS notes that a person who is already a lawful permanent resident has already undergone a public charge inadmissibility determination, unless she or he was exempt from such a determination at the time of application for such status. Such a person would not undergo another public charge inadmissibility determination unless U.S. Customs and Border Protection (CBP) determines, upon the alien’s return from a trip abroad, that the returning lawful permanent resident is an applicant for admission based on one of the criteria set forth in section 101(a)(13)(C) of the Act, 8 U.S.C. 1101(a)(13)(C), such as the alien has been absent from the United States for more than 180 days. “

Why Misrepresenting Yourself is an Immigration No-No

March 23, 2020

 

A top priority for the U.S. Citizenship and Immigration Services is to identify people who are attempting to abuse the U.S. immigration process. As a result, if USCIS finds that you are misrepresenting yourself or your history to try to get into, or stay in, the United States, the penalties are severe. 

According to 8 U.S.C. §1182(a)(6)(C)(i), “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible.” What does this mean? Lying to an immigration officer, lying on any immigration application, or submitting fraudulent or even minorly altered documents to an immigration agency, subjects you to a lifetime ban from the United States.

Some examples of situations that may create a lifetime ban:

  • When seeking a marriage green card, if USCIS determines that the marriage wasn’t bona fide, meaning it was a marriage entered solely to obtain a green card, this can subject you to a lifetime ban.
  • If you abuse a tourist visa, USCIS may subject you to a lifetime ban. For example, you are not permitted to seek permanent residency by entering the U.S. on a tourist VISA. If you enter the United States on a temporary VISA with the intention of filing for a green card, you risk the agency finding that you were intentionally abusing your temporary visa and may subject yourself to a permanent ban from the U.S.
  • If you misrepresented yourself on a prior application, this could cause problems even if you didn’t fill out the form yourself. For example, if you hired an attorney in a foreign country to complete an application on your behalf, any misrepresentation on the prior application, whether approved by you or not, can subject you to a lifetime ban.
  • Immigration agencies often considers omissions from your application as intentional misrepresentation. For example,  USCIS may charge you with misrepresentation if you you don’t include your prior marriage, an earlier arrest, or you don’t include all of your group memberships, thinking they aren’t necessary.  

The immigration application process can be fraught with pitfalls. That’s why it’s a good idea to consult an experienced immigration attorney before filing an application with the USCIS. Even if you have a criminal or organizational history that you think may disqualify you, or if you believe you have engaged in misrepresentation, I may be able to help. I have helped people from around the world overcome small and large obstacles during the U.S. immigration process. I would love to help you too.

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