Articles Posted in Consulates and Visas

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I had the privilege of seeing the Seattle Opera perform “The Consul.” This Gian Carlo Menotti opera, which runs through March 7, 2014, deals with the frustration and torment of freedom and opportunity seekers everywhere trying to apply for visas and the bureaucracy they face. Althoughneither the location nor the government involved is mentioned in this opera, it is set in the 1940s or 1950s. Menotti’s idea for the opera was inspired by a New York Times article about a woman from Poland who committed suicide at Ellis Island after she was refused admission to the USA.

The issues in The Consul are the same today and accurately reflect what I hear from people every day who have been denied visas around the world: they feel they are treated briskly (“Next!”); no amount of paperwork is ever enough; their personal stories are not heard (only do you qualify or not); and that visas tend to be issued to the wealthiest of individuals. In the opera, the consular Secretary pronounces: “These photos are not the right size.” “This paper must be notarized.” “No one is allowed to see the Consul. The Consul is busy.” “I don’t see how we can help you.” “I can’t make an exception. It would upset our system.”

The music is interesting though it can be a bit disconcerting given the somber story. However, the lyrics are spot-on from my perspective based on what I know about the visa application process.

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The US State Department has announced the start of registration for the DV-2015 Visa Lottery program. Visas will be available for processing between October 1, 2014 through September 30, 2015. This means that all selected applicants must receive their visas no later than September 30, 2015. This Diversity Visa Lottery allocates up to 50,000 visas to individuals and their dependents from countries with low immigration rates to the US. The registration process will begin October 1, 2013 at noon EST and will end on November 2, 2013 at noon EST. Registration is done electronically (“E-DV”) at www.dvlottery.state.gov. (Note, if you go online to this site prior to October 1, 2013, you will only see information for the most recent lottery already held for DV-2014, not the upcoming DV-2015 mentioned above.) If rejected in the lottery, applicants will not be notified. However, applicants can begin checking status to see if selected beginning May 1, 2014 by logging onto the site above. Selected winners of the lottery will be notified by the US State Department via email.

Ineligible Countries And Exceptions

For DV-2015, applicants must have been be born in any country EXCEPT the following countries: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, the Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, the United Kingdom (excluding Northern Ireland) and its dependent territories, and Vietnam. (Nigeria is newly added to the exceptions list from years past). Hong Kong, Macau, and Taiwan remain eligible.

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USCIS recently issued a new final regulation that goes into effect on February 1, 2013 specifying that Immigrant Visa recipients must pay a new and additional “Immigrant Fee” of $165.00. Applicants who receive Immigrant Visas at US consulates and embassies abroad will be required to pay the new fee online before they travel to the US. See www.pay.gov. The $165.00 fee covers the cost of green card production and other visa related services by USCIS associated with State Department visa processing.

Once an Immigrant Visa is issued on or after February 1, 2013, the visa holder has six months to use the visa to enter the US. Upon admission with the visa, a plastic green card is received within a few days to a couple of weeks. The individual arrives at the border with a package from the State Department that will now include a notice about payment of the fees or a receipt for having previously paid the fees. Although failure to pay the fee will not stop a person from being admitted into the US as a new permanent resident, the actual green card production will be held up until the fee is paid. Fees must be paid out of a US bank account and are to be paid online.

Exempt from the Immigrant Fee are Hague Convention adoptees. Stay tuned for more details about how to make this payment.

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CNN reports on a heartbreaking story Dangerous path to legal status about a young woman, Tanya Nava, who applied for her immigrant visa or green card at the U.S. Consulate in Ciudad Juarez, and now regrets that she ever did. Her husband, Jake Reyes-Neal, an American citizen and father of their child, had sponsored Tanya, only to be killed in the process while waiting with his wife to get her visa. Because Ms. Nava evidently had been in the U.S. illegally since she was a young girl, her physical departure from the U.S. to get her green card at the consulate triggered the 10-year bar to her return to the U.S. To come back earlier than 10 years, she filed for a waiver of the unauthorized stay bar. This additional application was filed at the consulate and then routed to USCIS which processes the waiver application. The only problem is that it can take weeks, months and even years in some cases for the waiver to be processed. While waiting in Ciudad Juarez, Mr. Reyes-Neal was shot to death. This is why the government’s proposal to allow for stateside processing of waivers, mentioned in my blog post on Provisional I-601 Waiver Update, could provide relief for some families facing long periods of separation.

Although an extreme situation for a family facing separation due to the bars or waiver processing, this family’s situation is not uncommon. Undocumented applicants for visas include people from other dangerous locales, including Nigeria, Syria, Egypt, Somalia and more. Even families not from dangerous countries face months and months of hardship due to family separation. Often the breadwinners must leave the country and cannot find work in their home country while they wait. Applicants who spent most of their lives in the U.S. may not speak the language, have resources or know anyone in their home countries. Relatives might be ill or face other undue hardships. Families have to decide whether to separate during the long process or whether the American sponsor must give up everything to join family members in a country the sponsor may not know. The plight of the waiver seekers has been made into a film, Tony and Janina’s American Wedding, about a Polish-American family facing the long hardships due to separation during the waiver process.

When this Seattle immigration attorney began practicing immigration law over 25 years ago, if someone was out of status, the penalty was to return to the home country and seek a visa at a US consulate. The applicant would be back in a few days or weeks with valid status and an immigrant visa. However, in the 1990s, Congress downsized consulates and beefed up security at facilities worldwide. At about the same time, Congress enacted one of the most onerous provisions in immigration law, the three and 10-year bars to return due to unauthorized stay. Perhaps an unintended result, today we have the largest number of undocumented immigrants in the U.S. ever, many of whom have been living long term in the U.S. with a legal route to lawful status, but who are not willing to risk the separation, hardships and unpredictability inherent in consular processing visa and waiver applications. Thousands of families are caught between a rock and a hard place: whether to remain in the U.S. illegally or whether to gamble one’s life, family, and/or job by consular processing a visa. The irony is that now Ciudad Juarez is the largest consulate in the world, handling 10,000 immigrant visas/green cards per month because Congress chose to ding immigrants in unauthorized stay. Although the $66 million facility is supported in part by immigrant-paid processing fees, the facility handles other law enforcement and diplomatic relations functions as well as services for American citizens in Mexico, all at taxpayer expense.

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Today, I attended a USCIS Public Engagement Teleconference at which USCIS and State Department officials provided further details about the January 6, 2012 USCIS Notice of Intent to issue regulations, discussed in my earlier blog post, USCIS Proposes Stateside Processing of I-601 Waivers: Know Before You Go?. Recapping briefly the USCIS proposal, regulation will be issued for public comment describing new procedures for how and where immigrant visa applicants will file their waiver applications if they are subject to the three or ten-year unlawful presence bars to inadmissibility. The proposed regulation would change the place of waiver filings to the U.S. from the current rule of filing at the U.S. consulate while abroad. This would allow applicants to file before going to their green card visa interviews at U.S. consulates abroad. The purpose of the teleconference was both to further inform stakeholders as well as to solicit ideas for the proposed regulation.

USCIS plans an education push on the subject. Already, they say, notarios and other legal consultants are advertising a new law, a new benefit or other nonsense that simply isn’t true. Anti-immigrant advocates mischaracterize this as President Obama’s attempt to carry out a “back-door amnesty” or is “an abuse of his administrative authority,” when in fact this is just a procedural change in the place of application. It would not be a change in the qualifications for waiver applications that already exist by Congressional statute. Others note that this is just a political ploy by the Obama administration to appeal to Hispanic voters. Nonetheless, USCIS has the regulatory authority to determine how to carry out a statute enacted by Congress.

Here are some highlights from the public engagement teleconference:

1. USCIS anticipates issuing proposed regulations “in the Spring” with a 60-day comment period and final rule “by the end of the year.” The goal is to implement the regulation “this calendar year.” Note, this is an election year; therefore, whether the regulation will really be implemented “by the end of the year” may depend upon the outcome of the Presidential election in November. Nonetheless, the agency will still exist and be responsible for the waiver adjudications unless Congress changes the overall structure of the bars and waivers before then.
2. Presently, there are 23,000 waiver applicants abroad around the world, which includes all waiver types, not just waivers for the unlawful presence bars. 75% of those are applicants for immigrant visas at the U.S. consulate in Ciudad Juarez. These are the people who have decided to take the risk to pursue their employment or family based green cards abroad (because they are ineligible to do so in the U.S.), knowing they may be separated from families while waiting for waiver applications or fulfillment of the three or ten years residence abroad before they can return. Meanwhile, millions of people eligible to immigrate at consulates abroad who need waivers have chosen to remain in the U.S. illegally despite being eligible for visas and potentially eligible for waivers. They are unwilling to take the risk of lengthy family or job separation under the current process.
3. USCIS wants ideas and comments now to help with rule formulation. Suggestions should be sent to: public.engagement@dhs.gov. Note that this process for input is no substitute for formal comments once the proposed rule is published. At that time, that’s when public comments will really count, but suggestions submitted now can go into the initial rule formulation process.
4. USCIS reiterated that the purpose of the rule change is to reduce the separation period facing U.S. citizens and their families while immigrant visa applicants continue with the existing immigration process. This has the added benefit of saving the government money from inconsistent procedures, adjudication and constant routing of files between the State Department and USCIS. Note again, that this is strictly a procedural change, not a legislative change, amnesty or qualification change. See USCIS Q&A. Many stakeholders at the meeting commented on why USCIS was not including U.S. citizen parent beneficiaries since they are immediate relatives; permanent resident petitioners with U.S. citizen relatives who are qualifying family members for waiver hardships; and U.S. citizens with permanent resident family members suffering hardship who also qualify for waivers. All of these categories are waiver eligible and affect U.S. citizens.
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Today, U.S. Citizenship and Immigration Services (USCIS) announced a “Notice of Intent” that it is considering issuing a rule change to allow a narrow class of specified immigrant visa applicants to process their I-601 waivers of inadmissibility in the U.S. This means that they would have a provisional decision about their waiver eligibility BEFORE they leave the U.S. to complete interviews at U.S. consulates abroad. The rule itself has not been issued. There will most likely be a period for public comment before the rule is implemented. Therefore, it could be a few months before this procedural change goes into effect, and the nature of the final rule could change based on public feedback. Meanwhile, next week, USCIS will hold a teleconference with stakeholders.

The proposal would be a procedural change only. It is not a change to qualifications. It is not amnesty or another new benefit, as the anti-immigrant folks will surely claim. USCIS intends this rule to make the overall process more efficient and a cost saver for the government by reducing the back and forth of applications between the State Department (consulates) and USCIS. Most importantly, the change would reduce the amount of time some families are separated and promote family unity, something desperately needed in our immigration laws and procedures. However, the proposal is limited to a very, very narrow group of applicants. One has to ask why the government doesn’t want to save more money by broadening the group of people to whom this procedural change should apply and suffer the same family hardships. Nonetheless, for the limited group to which it will apply, the change is a welcome assist to applicants for immigrant visas abroad who are presently in the U.S. Presently, they have to decide whether or not to take the risk of leaving the U.S. to complete processing their family based green card applications at U.S. consulates not knowing if their waiver applications will be approved. This change will presumably make that decision making process for families easier.

About Unlawful Presence Waivers
Briefly, if an applicant has been unlawfully present in the U.S., whether by unlawful entry or other visa violation, for six months or more, the very act of leaving the U.S. to legalize status by obtaining an immigrant visa abroad triggers the three or ten-year bar to returning to the U.S. Once the bar is triggered, a waiver of the unlawful presence bar is required to come back earlier than three or ten years. Not everyone who has been in the U.S. unlawfully needs to consular process or is subject to the unlawful presence bar. Examples include unlawful entrants who are eligible for section 245(i) adjustment of status in the U.S., or certain immediate relatives who entered with lawful visas who may have overstayed. Whether one is or is not subject to the bar or must consular process should be determined in consultation with an experienced immigration lawyer.

Because waivers are decided by USCIS and not the consulate, applicants can be stranded abroad, separated from families and jobs while waiting for waivers to be decided. Once the waiver is approved by USCIS, the applicant returns to the consulate for issuance of the visa. If the waiver is not approved, the applicant remains outside the U.S. until the three or ten-year period ends. This separation creates huge hardships for families. Wouldn’t you want to know the likelihood of your waiver application being granted BEFORE deciding whether to leave the U.S. for the final visa interview?

The U.S. consulate in Ciuadad Juarez, Mexico is the largest consulate in the world. It has the greatest number of visa applicants waiting for waivers. Many applicants or their families have suffered from the violence in Mexico while waiting for the outcome of their visas. Similar fates await visa applicants in other countries such as Nigeria, Sudan and places where there is internal conflict. There are immigrant visa applicants all over the world currently waiting for waiver decisions while being separated for months or years from their U.S. citizen or green card holding family members.

Waiver eligibility weighs heavily into the applicant’s risk/benefit analysis for deciding whether to leave the U.S. Unpredictability in the waiver adjudications puts applicants into a Catch-22 situation and is one reason why many people in the U.S. who could regularize their status remain unlawfully in the U.S. The proposed rule change, however, will not impact waiver requirements or adjudication variables. It only affects whether one applies for the waiver before or after leaving the U.S. USCIS acknowledges this irony in its proposal, thanks to Congress, who in 1990 enacted the bars and waivers: “The action required to regularize the status of an alien, departure from the United States, therefore is the very action that triggers the section 212(a)(9)(B)(i) [unlawful presence ground of ] inadmissibility that bars that alien from obtaining the immigrant visa.” As I have mentioned in prior blog posts, eliminating the unlawful presence bars should be an essential element of immigration reform that would also save the government lots of money. The government bureaucracy devoted to waiver adjudications has mushroomed over the years as has the cottage industry of psychologists, doctors, country condition experts and others who often weigh in on the hardships an applicant will face.

Narrow requirements for stateside processing of waivers

If and when the rule becomes effective, unfortunately, it will be very limited as currently proposed. First, it would apply only to immediate relative visa applicants (spouses, minor unmarried children under 21, and parents of U.S. citizens) and some self-petitioners (widows/widowers of U.S. citizens). It would not apply to the same family members of green card holding sponsors or other family member combinations, nor to employment based visa applicants. The rule is only intended to modify the time of family separation among U.S. citizen family members during waiver processing. It does not change the extreme hardship qualifying standard or statute.
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Most people are confused about green card quotas and how they impact application processing times. Permanent immigration through a relative or work can take many, many years. This is because our legal immigration visa allocation system was established in 1965 and has only been amended a few times since, mostly dealing with how unused numbers spill into other categories. In 1965, Congress changed the visa allocation system from race based to country based calculations, designed in part to prevent any one country from monopolizing available immigration numbers. It is the system we still use today. This post attempts to explain the quota system more simply and provides some references to further explanations and background for what is otherwise a complex subject. The terms “permanent residence” and “visa” are used here interchangeably to refer to green card status obtained by 1) seeking an “immigrant visa” at a U.S. Consulate abroad, or 2) through “adjustment of status” in the U.S. at a USCIS office. There are differences in the two processes, but they both lead to permanent residence and they are based on the same family and work related categories. Both procedures require the applicant to be at the front of the line in the quota system in order to complete the application process and receive a green card.

What is the quota?

The quota is the annual allocation of permanent visas or green cards by country of birth and category. It should not be confused with bureaucratic processing delays or “agency processing times” that have more to do with available agency personnel, resources and priorities. Congress established a finite number of visas per country and per category. However, annual demand for green cards usually outweighs supply, thus creating a backlog. For FY2012 that began October 1, 2011, the annual worldwide limits are 226,000 family-based green cards and 140,000 employment-based green cards.

I tell my clients to think of the quota like a movie theater. Suppose there are only 100 seats in the theater but more than 100 people want to see the movie. Once the 100 seats are sold out, everyone standing in line has to wait until the next show. In the case of visas, that means waiting for the next month, or perhaps the next fiscal year to determine if a new group of visas (tickets) are available. Visas are allocated annually by category and country via a formula determined by Congress. Estimates, (note the word “estimate”), of visa availability are published monthly by the U.S. State Department in the “Visa Bulletin.” The State Department refers to categories that are backlogged as being “oversubscribed.” Where visas are available, the categories are said to be “current.” Oversubscribed categories are referenced by a date, called a “priority date.” The priority date is the date in which the applicant first got in line. If the Visa Bulletin shows dates, it means it is issuing visas to applicants who were in line prior to that date. Current quotas are reflected in the visa bulletin by a “C”. If visas are not available at all, the category is noted by a “U.” Priority dates are discussed in more depth below.

The annual “diversity visa” lottery also has a maximum limit. Generally, more applicants are notified than visas are available because many people will turn out not to qualify or will change their minds. But nonetheless, the demand exceeds the supply and creates a backlog or quota that is also reported monthly in the Visa Bulletin. The State Department has published a more detailed explanation of how the quota system works. For academic readers, data crunchers and historians, there are additional statistical reports on historical data, country, category and regional reports published by the State Department here.

Why is the quota important?

In order to receive an immigrant visa abroad at a U.S. consulate, or in order to apply for adjustment of status in the U.S., a visa must be “immediately available.” In other words, the quota must be current in order to complete immigrant visa processing or to file for adjustment of status in the U.S. (Form I485). When there is a backlog in any visa category, the applicant cannot get into the theater and has to stand in line waiting for the next show, using the movie theater analogy above.

Thus, one could have filed initial labor certification (PERM) and/or visa petitions to start a case months or years before, but be unable to file the last set of paperwork due to the quota backlog. The quota need not be current to file PERM or visa petitions to start the immigration process. Another scenario that sometimes occurs is that one may have filed for an immigrant visa or adjustment of status when the quota was current, but while the application was being processed by USCIS or the State Department, the quota retrogressed or became backlogged. In that unfortunate situation, the State Department or USCIS can process the application but cannot grant it until the quota is current again. Therefore, it’s important to track the quota in the Visa Bulletin on a monthly basis.
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Two new electronic procedures have been introduced by the U.S. State Department (DOS) concerning visa processing at U.S. Consulates abroad. One is new final rule that allows DOS to require applicants to use a new web-based online DS 260 form. This form will eventually replace the hard copy DS 230 form used for processing immigrant visas. For the last several months, temporary non-immigrants have been using a web-based online DS160 form for non-immigrant visas.

While the State Department may find web-based submissions easier to use because they receive electronic data ahead of time before the applicant’s interview, it is more cumbersome for applicants and attorneys to use. A host of logistical, not to mention ethical, issues come into play because the new rule requires only the applicant to hit the enter/submit button attesting that all information is truthful. Applicants are often not in the same city or country as the attorney. Not everyone is computer literate around the world. Often, people have to go to internet cafes or use travel agents to help fill out the forms. Lawyers have ethical duties for the content they prepare for forms, while travel agents do not. Secondly, attorneys prefer to discuss the questions and answers with their clients BEFORE data is submitted to the U.S. Consulate. Every question has a legal consequence, and online editing and saving can be cumbersome, or the program can time-out if the applicant and attorney get tied up in a phone conversation about the form. Because the applicant is the one with the account, it makes it more difficult for attorneys to prepare their clients if they are abroad.

The second new program is actually a pilot program for applicants processing permanent immigrant visas abroad. The National Visa Center (NVC) coordinates the paperwork between the applicant and the Consulates around the world. Now, applicants in Ashgebat, Turkmenistan, Montreal, Quebec, Canada and Guangzhou, China will submit required documents via scan and email with originals brought to the interview. This will hopefully speed up processing by the NVC and help to prevent mailing delays, especially the time needed to get original foreign documents sent to the U.S. Now, applicants eligible for the pilot program can just hold on to their original documents until the interview and email them ahead of time upon request by the NVC.