Why It is Critical to Understand the New 90-day Rule Regarding Misrepresentation Based on Conduct

Posted on by Ruby Powers in Immigration Law Leave a comment

Immigrants now face stricter rules regarding misrepresentation. The Department of State (DOS) revised the section of the Foreign Affairs Manual (FAM) guidelines that deal with misrepresentation. Section 9 FAM 302.9-4(B)(3) applies to foreign nationals in the US “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.”
The FAM now includes an updated section called “Inconsistent Conduct Within 90 Days of Entry.”

The exact language is as follows:

If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.

If a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit” they should “bring the derogatory information to the attention of the Department for potential revocation.”

Why this is of critical importance:
This means that DHS and DOS will look now closely at an individual’s activity in the first 90 days after entry to the US. If an individual indicated that their intent to travel to the US was for tourism and within the first 90 days takes action to change their status (i.e., applies to change status to a student or a non-immigrant worker or marries a US citizen, etc.) it could result in severe repercussions, including being barred from entry to the U.S. for life. (See section 212(a)(6)(C) of the Immigration and Nationality Act). Thus, it is crucial that foreign nationals and immigration attorneys fully understand the new FAM guidelines.

What to keep in mind:

Inconsistent Conduct
Conduct that violates or is otherwise inconsistent with a foreign national’s nonimmigrant status
includes:

  • Enrolling in a course of academic study if unauthorized to do so;
  • Engaging in unauthorized employment;
  • Marrying a U.S. citizen or Legal Permanent Resident (LPR) and taking up residence in the U.S. after entering on nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and
  • Any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

 

Presumption of Willful Misrepresentation Based on Timing of Conduct
The FAM states that there will be a presumption of willful misrepresentation based on an alien’s activity within 90 days after entry to the U.S. The burden of proof falls on the alien, meaning that he or she must “establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.” Consular officers will give an alien “the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.” However if an alien engages in conduct inconsistent with their nonimmigrant status more than 90 days after entry into the U.S., then there is no presumption of willful misrepresentation (though U.S. consular officers may still seek to revoke the visa upon “reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission.”)

Exercise caution when filing for adjustment of status.
From the updated guidelines, it seems that DOS is targeting aliens who enter through the Visa Waiver Program (which permits travel for tourism or business for stays ≤ 90 days) or on a B-1/B- 2 visitor visa and apply to adjust to LPR status. Please note that USCIS’ Adjudicator’s Field Manual has not been updated to match the new FAM guidance.

It should be noted that the Board of Immigration Appeals has established that in the case of adjustment of status of immediate relatives, the equity of the immediate relative relationship takes precedent over “preconceived intent.”  However, foreign nationals who have entered the U.S. on a B or F visa or any other nonimmigrant visa that prohibits immigrant intent should take caution regarding the risks of filing an adjustment of status, extension of status, or change of status within 90 days after entry.  Even if such filings are made 90 days after entry, the individual should demonstrate that something happened to cause them to alter their original plans and thus to want to change their immigration status.

But what happened to the 30/60 Day Rule?
The updated FAM has done away with the “30/60 day rule” regarding adjustment of status after entry on a nonimmigrant visa.  The 30/60 day rule can be summed up as follows:

  • If an alien files for adjustment within 30 days of entry, the government can presume that the person misrepresented their intention in seeking a visa or entry. A finding of misrepresentation or fraud can result in a lifetime bar to US entry.
  • If the act occurs more than 30 days but less than 60 days after entry, no presumption of misrepresentation results. However, if there is reasonable belief that of misrepresented intent, then the alien must present evidence to the contrary.
  • If the act occurs more than 60 days after admission into the US, there is generally no basis for a misrepresentation or inadmissibility finding.

 

USCIS’ policy manual has not been updated with the 30/60 day rule, but it may be in the future. The FAM makes no mention of retroactive application of the change but stated that it is effective September 1, 2017.

Foreign nationals who depended on on the 30/60 day rule and have pending adjustment of status applications should consult an immigration attorney to plan how to best handle their cases.

Is consular processing for an immigrant visa a better option for me?
Although there is no certainty that USCIS will adopt this new DOS rule, securing LPR status through consular processing abroad is becoming the preferred option over filing for adjustment of status, especially considering potential delays from USCIS expanding in-person interviews for adjustment of status applications. While cases vary, it may be advisable to withdraw your adjustment of status application and file a Form I-824 to request that the approval notice of the underlying immigrant visa petition be sent to a U.S. consular post.


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Posted on by Ruby Powers in Immigration Law Leave a comment





DACA may be down, but it is not yet out

Posted on by Ruby Powers in Immigration Law Leave a comment

By Attorney Jose Aponte, Powers Law Group

Ever since the story hit the newswires that the Trump Administration was rescinding the Deferred Action for Childhood Arrivals (DACA) program, much has already been said and written by pundits on both sides of this debate. For those few who still don’t know, the DACA program allowed some individuals who entered the country illegally, as minors, to receive a renewable two-year period of deferred action from deportation and to be eligible for a work permit. These individuals were brought into the United States as young children by their parents or by others. Deportation would mean, for many if not most, going to a country you do not know, where they communicate in a language you cannot speak.

The DACA program was started by the Obama administration in 2012. However, the program was commenced through an executive order and not through congressional action. To many, this was an unconstitutional overreach by President Obama. The attorney generals of several States, led by Texas, brought suit against the DACA and its companion Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). A temporary injunction was issued in February 2015, blocking DAPA from going into effect while the lawsuit proceeded. In his statement announcing the Trump administrations rescission of the program, Attorney General Jeff Sessions stated that they agreed that DACA, as it was implemented, was unconstitutional. Attorney General Sessions then announced that while it would end the program, it would do so gradually within a six month period. This was intended to give Congress the opportunity to decide whether or not it chose to enact any legislation. As of September 5 th , no new initial DACA-related applications filed would be acted on. DACA renewal requests for beneficiaries whose benefits are set to expire between September 5, 2017 and March 5, 2018 would be adjudicated, as long as applicants submitted their applications by October 5, 2017.

According to a recent poll, 54 percent of Americans say they are in favor of Congress passing legislation that would allow DACA recipients to remain in the United States. The greater debate is whether these individuals should eventually be allowed to become eligible for legal permanent residence or citizenship. This apparent support for DACA recipients seems to be getting the attention of Congress.

Recently, Congressional leaders have expressed support in passing some form of legislation. The question is whether a DACA fix would be proposed as standalone legislation or should it be part of a larger immigration reform bill. U.S. House of Representatives Speaker, Paul Ryan, has said that he believes that fixing the DACA program should be part of larger immigration changes. Congressional Democrats seem to be willing to have DACA legislation stand on its own.

President Trump has expressed support for the “Dreamers” although has been short on specifics. With his administration’s September 5 action ending DACA, most concluded that he had bowed to the wishes of his far right base. However, on September 13 it was announced that, the President had invited Democratic Senator Chuck Schumer, and Congresswoman Nancy Pelosi to the White House for dinner. One of the topics apparently in the agenda – DACA. Later that night, Democrats issued a statement announcing that they had reached an agreement with the President that would save DACA. However, the Administration later responded by saying that while the two sides were close to a deal, none had yet been reached. Whether or not a deal has yet been reached it is encouraging that lawmakers in Washington D.C. seem to be giving the subject matter its due consideration. The question remaining is what, if anything, must each side be willing to give in order to reach a compromise.

While “dreamers” still have reason to be nervous, recent actions do suggest that while DACA, as we have come to know it, is on its way out, Congress may have a more permanent solution just below the horizon. Their American Dream may still be within reach.


New Interview Requirements

Posted on by Ruby Powers in Immigration Law Leave a comment

by Attorney Michele L. Strickland, Powers Law Group

Beginning October 1, 2017 Immigration (USCIS) will require in person interviews for green card applicants who are sponsored by employers and who are refugee/asylee relatives. In the past an interview was not required for these applicants. This change will likely slow the process and create larger backlogs.

In fiscal year 2015 (the latest data available from USCIS) approximately 168,000 applicants received their green cards in these categories. Most of these applicants (122,000) were sponsored by their employers.

The change is made as part of Executive Order “Protecting the Nation From Foreign Terrorist Entry Into the United States.” Under this, and other Executive orders, USCIS is attempting to improve its detection and prevention of fraud. Conducting interviews will allow USCIS Officers to verify information provided on applications, discover new information and assess the credibility of applicants.

USCIS plans to require interviews for more green card application categories in the future.


Trump’s New Cuba Policy: Implications for Americans and Cubans

Posted on by Ruby Powers in Immigration Law Leave a comment

By Jose Aponte, Immigration Attorney at Powers Law Group

Changes are coming for the U.S. policy towards the Caribbean island of Cuba, a policy that Trump administration had criticized as “one-sided deal.” On June 16, 2017 the President announced that the administration sought to: 1- Enhance compliance with U.S. law; 2- hold the Cuban regime accountable for oppression and human rights abuses; 3- Further the national security and foreign policy interests of the United States and those of the Cuban people; and 4- lay the groundwork for empowering the Cuban people to develop greater economic and political liberty.

So what did change?

The new policy, according to officials, is said to channel economic activities away from Cuba’s Grupo de Administración Empresarial (GAESA), an organization that the U.S. government describes as a “Cuban military monopoly.” American individuals and entities will be allowed to develop economic ties directly with the private, small business sector in Cuba.  It is thought that this approach will have the effect of encouraging American commerce with free Cuban businesses while putting pressure on the Cuban government to allow the expansion of the Cuban private sector.

The policy does place travel restrictions that are said to “better enforce the statutory ban on United States tourism to Cuba.”  Some of the changes include, limiting to group travel all who are not traveling for non-academic educational purposes. All self-directed, individual travel permitted by the Obama administration will be prohibited. Cuban-Americans, however, will still be able to visit relatives in Cuba and send them remittances.

American officials stated that any further improvements in the United States-Cuba relationship will depend entirely on the Cuban government’s willingness to improve the lives of the Cuban people, including the promotion of the rule of law, respect for human rights, and taking concrete steps to foster political and economic freedoms.

The policy memorandum directs the Treasury and Commerce Departments to begin the process of issuing new regulations within 30 days.  The policy changes will not take effect until those Departments have finalized their new regulations, a process that may take several months.  The Treasury Department has issued Q&As that provide additional detail on the impact of the policy changes on American travelers and businesses.

What Remains Unchanged?

Not all U.S. policy towards Cuba was reset. Some provisions from the previous Obama administration will remain unchanged. For instance, embassies in both countries will remain open. Although more restricted, direct commercial flights as well as cruise ships from the U.S. will continue to operate.

Travelers will still be able to spend unlimited amounts of money on the island and can still bring back Cuban rum and cigars to the United States. Americans will continue to be free to send unlimited amounts of money to Cubans on the island. Bilateral agreements penned on issues such as combating drug trafficking and mitigating oil spills will remain in place. Most noticeably, however, what has been at the center of U.S.-Cuba relations for the last half century — the U.S. economic embargo— also remains.

What does this all mean for Cuban Immigrants?

What, if anything, do these changes in United States policy towards Cuba mean for the Cuban immigrant that decides to leave the island and sets for U.S. shores?  The first question that arose quickly after the changes were made public was whether the Trump administration would reinstate the so-called “wet foot, dry foot” policy, the name given to the revised application to a provision of the Cuban Adjustment Act. “Wet foot, dry foot” allowed those Cuban individuals who managed to make it to U.S. shores a chance to remain in the country and become a legal permanent resident after one year. All those who were detained in U.S. territorial waters were sent back to Cuba or a third country. Back in January 2017, the Obama administration put an end to “wet foot, dry foot,” as well as the Cuban Medical Professional Parole Program.

It is important to note that the Cuban Adjustment Act (“CAA”), passed by Congress in 1966, remains law in the United States. The CCA gives the Attorney General the discretion to grant permanent residence to Cuban natives or citizens applying for a green card if: 1) They have been present in the United States for, at least, 1 year; 2) They have been admitted or paroled; and 3) They are admissible as immigrants. The CCA also provides other ways for Cubans to legally migrate to the U.S. through an immigrant visa issuance, refugee admission, the diversity lottery and the Special Cuban Migration Program (“SCMP”), also known as the Cuban Lottery.

It is difficult to anticipate how much longer any of these programs towards Cuba will remain U.S. policy and/or law. What is certain is that as U.S.-Cuba relations continue to evolve, immigration attorneys will need to be able to anticipate these changes and quickly assess how they may affect their Cuban clients.

 


USCIS Reminds Beneficiaries of Temporary Protected Status for Guinea, Liberia, and Sierra Leone of May 21 Termination

Posted on by Ruby Powers in Blog from Other Experts Leave a comment

USCIS is reminding the public that the designations of Temporary Protected Status (TPS) for Guinea, Liberia, and Sierra Leone terminate effective May 21, 2017.

To provide sufficient time for an orderly transition, the Department of Homeland Security gave beneficiaries under these three designations 8 months advance notice of the expiration by publishing 3 notices in the Federal Register on Sept. 22, 2016 (one for each country). These notices urged individuals who did not have another immigration status to use the time before the terminations became effective in May to prepare for and arrange their departure from the United States or to apply for other immigration benefits for which they may be eligible.

Although TPS benefits will no longer be in effect starting May 21, 2017, TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. Individuals with no other lawful immigration status on May 21, 2017, will no longer be protected from removal or eligible for employment authorization based on TPS.

TPS-related Employment Authorization Documents issued under the Guinea, Liberia, and Sierra Leone designations are only valid through May 20, 2017, and will not be renewed or extended.

After reviewing country conditions and consulting with the appropriate U.S. government agencies, former Secretary of Homeland Security Jeh Johnson determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their designations for TPS. The widespread transmission of Ebola virus in the three countries that led to the designations has ended.

Additional information about TPS is available at uscis.gov/tps. For more information about USCIS, visit uscis.gov or follow on Twitter (@uscis),  YouTube (/uscis), Facebook(/uscis), and Instagram(/uscis).

Read the full article in USCIS


CONOZCA SUS DERECHOS SI ES PARADO/A POR LA POLICÍA, AGENTES DE INMIGRACIÓN O EL FBI

Posted on by Ruby Powers in Immigration Law, Video Blog Leave a comment

Cuáles son Sus Derechos y Responsabilidades si se Enfrenta con Inmigración.

 

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The 9th Circuit’s Ruling Denies Stay on Trump’s Travel Ban and the Department of Homeland Security Memorandums—what this Means for Immigrants

Posted on by Ruby Powers in Immigration Law Leave a comment

The 9th Circuit’s Ruling Denies Stay on Trump’s Travel Ban and the Department of Homeland Security Memorandums—what this Means for Immigrants

By: Texas Board Certified Immigration Attorney, Ruby L. Powers Read more


H-1B Cap Season is Getting Closer

Posted on by Ruby Powers in Immigration Law Leave a comment

H-1B Cap Season is Getting Closer

By: Texas Board Certified Immigration Attorney, Ruby L. Powers

February 17, 2017 Read more


Texas Rep List to call aboutSB4

Posted on by Ruby Powers in Immigration Law Leave a comment

The Texas Senate gave preliminary approval to an amended version of SB4 (often referred to as “sanctuary cities” bill.) tonight (2/7/2017). We fully expect that this bill will be voted out of the Senate upon final reading on Wednesday morning (2/8/2017). Read more


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