Immigration and firm news

2017 Family Based Immigration Recap and Plans for 2018

The primary trend for family immigration is a slow down in processing of all petition and application types at USCIS, at the National Visa Center, and at US consulates abroad. And, interviews are taking longer as part of the “extreme vetting” campaign.  I mentioned in an earlier post that mandatory interviews for employment based adjustment of status applicants is impacting processing times for family based adjustment of status and naturalization interviews. Here in Seattle, where once upon a time interviews were set 3-4 months after filing, they are now at around 10 months and are expected to reach a year or more as the employment based cases are added to the scheduling system. In addition, adjustment based work permits and advance parole that used to take 60-90 days to process are now taking about 120-180 days.  Family and fiancé(e) visa petitions are now taking 9-12 months. Consular processing can take more than a year now (from date of filing a petition). This means attorneys and clients need to stay in touch with each other, medical exams may need to be updated, and interim work permits and advance parole may need to be renewed. Patience is a virtue. Have back up or interim plans!

A recap of 2017 changes to family based immigration include:

  • Revised forms are getting longer and longer asking more security and family questions.
  • Adjustment and consular interviews are taking longer and are more in depth about the applicant’s entire immigration and personal history
  • Be prepared to address more questions about intent at time of entry in relation to timing of marriage and filing for adjustment of status, when changes of status were filed, and when unauthorized work began. Expect these questions at time of visa application, at time of admission at the border, and at adjustment of status interviews.  The State Department updated its Foreign Affairs Manual to change the presumption of fraud or misrepresentation from 30 days to 90 days if a person has “inconsistent activities” with the visa type within those first 90 days. (For more information, see my blog post about this misrepresentation FAM.) This mostly affects users of the Visa Waiver Program, B-1/B-2 tourist visa holders, and F-1 foreign students, among others. Many people mistakenly think they can use these visas with the purpose of getting married and staying permanently, changing status right away, or working illegally, when it is a conflict of intentions and purpose with the visa used to enter.  While USCIS does not follow the FAM for now, we don’t know whether USCIS will institute the same policy 10-12 months from now by the time of an adjustment interview. USCIS is not precluded from asking questions about a person’s intent and activities at the time of obtaining a temporary visa or at time of admission to the USA. This Seattle immigration attorney has seen officers ask about intent at adjustment interviews. Even so, a USCIS officer may still approve a case if there was “preconceived intent” to stay permanently, but not if there was a material misrepresentation or fraud, which is a ground of inadmissibility for knowingly making a false material statement.  All of these cases are very fact specific and should be evaluated in a discussion with counsel.
  • Requests for Evidence (RFEs) are prevalent in the family immigration area especially concerning new marriage cases, affidavits of support, and hardship waivers among other issues. In addition, there are frequent application rejections at the lock boxes for idiotic reasons and screw ups.  The most important thing is that time sensitive RFEs be responded to, regardless of how ridiculous the questions are. We see so many DIY cases where people moved, did not keep their addresses up to date with the government or failed to respond to RFEs and their cases were denied for abandonment.
  • Recent case law in the 9th Circuit Court of Appeals and in the 6th Circuit permits TPS holders to adjust status to green card here in the USA (with an appropriate family or employer sponsor) if they last entered without inspection. Given that TPS is ending for several nationalities, people should seek consultations with counsel to determine if they can adjust status in the USA instead of having to consular process an immigrant visa abroad. Further, anyone on TPS who last entered the USA with advance parole should consult counsel if you have a green card opportunity of sponsorship, as case law in that area outside the 9th and 6th Circuits would be an advantage to those whose last entry was with advance parole. If your TPS is expiring this year or next, see my blog post here on other immigration options for TPS holders.
  • I recently created a Facebook Live video about how the quota works and the myths of “chain migration” that President Trump so desperately wants to eliminate based on bald face lies. The video explains the different categories, how to read the Visa Bulletin, and how chain migration is fake news.
  • USCIS issued a new memo on “Criteria for Determining Habitual Residence in the United States for Children from Hague Convention Countries” concerning adoptions of foreign born children.
  • USCIS issued a new memo describing the list of acceptable documents reflecting changed gender designation.

For 2018, prepare for Congressional proposals like a recent Rep. Goodlatte bill that would eliminate various relatives from being sponsored for a green card. Based on the fake theory of “chain migration” (code words for racially biased immigration or no immigration), this bill would eliminate ability to sponsor parents, adult children and siblings. It would use the visa lottery numbers to move the backlogs along in the family and employment based preference categories (I don’t disagree using the lottery numbers for this purpose). Another proposal would use some of the lottery numbers for a merit based immigration category. This is all pretty nasty business.  But, if you plan to sponsor a parent, spouse or child or sibling, I would do it soon in case the law changes.

Expect more media hype on whether immigration should be “merit based” or from specific countries of nationality despite a public opinion poll showing the public does not support this. The problem with the merit system idea that I see is, even with the merit based creme de la creme categories we have now, they are receiving RFEs and denials. Thus, I’m leary that there is really any intent at all for the merit based system to work in reality when we have people like Stephen Miller in the White House who opposes all legal immigration.  Remember that despite the President wanting to cut off “chain migration” and the visa lottery, only Congress can change categories and numbers or caps. The President wants the family and lottery provisions and the Great Wall of Trump (depending upon the day of the week) as extortion for legalizing the DACA recipients. Also, remember that undocumented immigrants are not entitled to most public benefits except those related to emergencies or where State Law permits, despite paying taxes to state and federal governments.  Permanent residents are barred for at least five years from most public benefits.  Refugees are entitled to a limited amount of refugee resettlement benefits.  DACA, TPS and others are prohibited from most public benefits unless authorized by states. We expect to see some legislative proposals cutting legal and undocumented immigrants from other benefits programs like emergency FEMA or hospitalizations.