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Executive Order Suspends (at Least Parts of) the Visa Interview Waiver “Dropbox” Program

By Dimo R. Michailov, Esq.|February 2nd, 2017|

There has been a tremendous amount of discussion and comment on President Trump’s executive order banning certain travelers from the seven countries; however, one provision of the executive order which has a significant impact on many visa holders from all countries is the suspension of the interview waiver program (commonly called “dropbox”) which allows visa stamp renewals to be processed as U.S. consulates abroad without having to appear for a personal interview.      However, based on the exceptions in the executive order and in the Immigration and Nationality Act, at this time, a notable number of visa stamp applications are still eligible for interview waiver.

What is the Visa Interview Waiver Program (or “Dropbox”)

The Visa Interview Waiver program allows stamp applicants seeking a U.S. visa stamp in their passports (and who are deemed to meet certain criteria) to submit a visa stamp application without having to appear for a personal interview with a U.S. consular officer.    The program is commonly called “dropbox” and has allowed U.S. consulates to prioritize and process certain visa stamp applications much faster which has resulted in much more efficient visa stamp processing across many other visa categories.

It should be noted that the Visa Interview Waiver program is different than the Visa Waiver program.   The Visa Waiver program allows nationals of certain countries to travel to the U.S. without having to obtain a visa stamp in their passport.    The Visa Interview Waiver program allows applicants who need a visa to obtain one without having to attend the interview with a consular officer.

President Trump’s Executive Order Suspends the Interview Visa Interview Waiver Program

Section 8 of the executive order (Protecting the Nation from Foreign Terrorist Entry into the United States) reads in relevant part that,

(a)  The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.

The same section also calls for the increase of personnel who would be available to process visa applications (and interviews) in order to avoid increase in the visa interview wait times.

A Substantial Portion of Visa Stamp Applications Are Still Eligible for Visa Interview Waiver (or “Dropbox”)

Despite the broad call for immediate suspension of the Visa Interview Waiver program, the executive order allows for exceptions to this suspension, when permitted by law.   We have been monitoring closely the actual implementation of this provision across U.S. consulates around the world and our experience – based on reports from clients and based on our contacts with the government – has been that notable portions of the Visa Interview Waiver program are still operational.

First, it is important to note that the executive order specifically states that there are specific statutory exceptions.    On February 1, 2017, the Department of State’s Visa Office confirmed that the majority of Visa Interview Waiver program cases are still eligible to process under the program without an interview.   Specifically, cases covered by Immigration and Nationality Act (INA) section 222(h)(1)(A) and 222(h)(1)(B) are still eligible.

222(h)(1)(A):    Includes foreign nationals who are: “(i) within that class of nonimmigrants enumerated in subparagraph (A) or (G) of section 101(a)(15) [diplomatic visas]; (ii) within the NATO visa category;  (iii) within that class of nonimmigrants enumerated in section 101(a)(15)(C)(iii) (referred to as the `C-3 visa’ category) [transit visas]; or (iv) granted a diplomatic or official visa on a diplomatic or official passport or on the equivalent thereof.”

222(h)(1)(B):   Includes foreign nationals who are applying for a visa:  “(i) not more than 12 months after the date on which such alien’s prior visa expired;  (ii) for the visa classification for which such prior visa was issued;  (iii) from the consular post located in the country of such alien’s usual residence, unless otherwise prescribed in regulations that require an applicant to apply for a visa in the country of which such applicant is a national; and (iv) the consular officer has no indication that such alien has not complied with the immigration laws and regulations of the United States.”

What this means that, in addition to the enumerated visa categories in section 222(h)(1)(A) (mostly diplomatic-type visas), the “dropbox” Visa Interview Waiver program continues to apply and be in force and effect for visa renewals where the existing visa has expired within the last 12 months or less and where the applicant is applying in their country of usual residence.

Our office has been in contact with various agencies and applicants over the past several days and our experience confirms that as of the date of this article, the Visa Interview Waiver program is still operations and available to many applicants, especially those renewing their visa stamps.     However, we caution anyone who is planning to travel abroad and appear for a visa stamp at a U.S. Consulate to carefully consider the most recent reports from the specific consulate and be prepared for sudden changes to the process.

Visa Stamp Processing Times Likely to Increase

We expect that as a result of the suspension of the Visa Interview Waiver program, at least as it pertains to some candidates,  the wait times for an interview and for visa stamp processing will increase.   The executive order calls for hiring additional staff in order to handle such increase in volume in interviews; however, we urge visa stamp applicants, even those who are still eligible for the Visa Interview Waiver program, to plan carefully ahead of time and be prepared for longer processing visa stamp times.

Conclusion

There has been a substantial amount of confusion over the last few days over all of the provisions of the executive order.  The situation remains fluid and we caution our clients and readers to carefully consider and possible risks of traveling abroad and/or going for stamping.   However, our recent reports and intelligence suggests that as of the date of this article, at least major portions of the Visa Interview Waiver program remain valid and in effect.

Our office will continue to monitor developments related to immigration executive orders or congressional legislation efforts and we will be providing updates as soon as they are available.  Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Can Biometrics be Completed at a USCIS Office Outside of US?

By Dimo R. Michailov, Esq.|January 5th, 2017|

Many USCIS applications (normally those which result in the production of a “secure document”) require the applicant provide digital biometrics at a USCIS office.   In most cases, the biometrics process includes digital fingerprinting and a digital photo.

Many applicants who need to submit to the required biometrics are able to do so in the closest USCIS application support center (“ASC”) in the U.S.   However,  some applicants, especially those applying for I-131 Reentry Permit, often have very limited options to stay or travel to the U.S. for the required biometrics appointment.    USCIS has recently announced that in “rare circumstances” they will use their discretion and try to accommodate taking biometrics appointments at a USCIS Field Office outside of the U.S.

The Need for Completing Biometrics on Time

As noted above, certain applications which result in the issuance of a “secure document” by USCIS require the applicant to submit to biometrics as part of every application.    Among the most common USCIS application types which require biometrics are I-485, Application to Adjust Status, I-131, Application for Travel Document (Reentry Permit) (please see our specialized Expedited Reentry Permit site), and I-90, Application to Replace Permanent Resident Card.

Following the filing of such application, USCIS will normally schedule the applicant for an appointment to submit biometrics at an ASC in the U.S. (normally closest to the address of the applicant).   USCIS has indicated that failure to complete the biometrics process will be considered an abandonment of the application and lead to a denial.   For many applications, such as Reentry Permits, USCIS will allow 120 days after the filing of the application for the biometrics to be completed.     Therefore, the requirement to complete the biometrics and the timing must be considered carefully when making travel plans.

Can Biometrics be Completed Outside of US?

Until recently, USCIS refused to permit biometrics to be completed abroad.   They used to cite the lack of the specialized equipment at foreign field offices.   Starting late 2016, USCIS has announced that they have very limited ability to process biometrics at certain USCIS field offices outside of the U.S.

First, USCIS has indicated that they will allow biometrics to be processed outside of the U.S. only in rare and exceptional circumstances and each case will require exercise of the local field office’s discretion and specific permission.   Each international USCIS field office will, on a case-by-case basis, make a determination whether to allow biometrics to be completed outside of the U.S. after review of the case’s circumstances.

How to Request Biometrics to be Processed Abroad?

While there is slight variation among various USCIS international field offices, the process generally involves reaching out to the field office via email and presenting a compelling case as to why the biometrics cannot be completed at an ASC in the U.S.   The request will have to demonstrate (and document) the circumstances of the case.

While most of the field offices are very responsive, not all requests for biometrics abroad are granted.   If the request is granted, the international field office will provide instructions on how to complete the biometrics.  Often, they will advise the applicant to schedule an appointment at the international field office and then confirm the appointment date and time.

What are the Criteria for Requesting Biometrics Collection Outside of U.S.?

USCIS takes the position that only rare and exceptional circumstances will warrant biometrics collection outside of the U.S.   Generally, the criteria for successfully asking for biometrics abroad for applicants who reside in the U.S. are:

  • the applicant must have an application pending and with an outstanding ASC appointment in the U.S. (in other words, the case must be ready for biometrics collection);
  • the applicant must be able to explain and document the exceptional circumstances and hardship which prevent the applicant from completing the biometrics in the U.S., including the need for departing the U.S. and inability to travel to the U.S. for biometrics;
  • the applicant must also be able to show that a request for expediting the biometrics was made prior to departing the U.S. or, if such request was not made, the applicant must explain the failure of making such request.

USCIS warns that the expense of having to travel to the U.S. for biometrics, in and of itself, will not normally be considered a sufficient hardship to grant such a request.

When our office files such requests, we normally attempt to present a background of the case, including description of the application process and our attempts to secure biometrics on an expedited basis (which we almost always do for our clients).   We also provide evidence of the exceptional circumstances preventing the applicant from being able to travel to the U.S.   Most of our successful international biometrics cases have been health- or personal circumstance-related.

Recommendation:   Focus on Completing Biometrics in US; Rely on Biometrics Abroad as Last Resort Only

Since USCIS has made the international biometrics option available, our office has been able to assist a number of reentry permit clients complete their biometrics abroad.   However, our experience confirms that USCIS will grant such requests only in rare and exceptional cases.    As a result, our recommendation is for applicants who must travel abroad, especially in reentry permit cases, to plan the application and biometrics well in advance in order to complete the required biometrics in the U.S. prior to departing.     In many cases when expedited biometrics are requested, the biometrics can be completed within two or three weeks after filing or the biometrics may be postponed for a future U.S. trip.   We urge applicants to rely on international biometrics only as a last resort.

Conclusion

Our office has a special reentry permit division where we handle reentry permits on a daily basis for a variety of green card applicant situations and we will be delighted to discuss and, possibly, help throughout the application process.    Please do not hesitate to contact us with any questions or comments or complete the case evaluation and quote form if we can be of any assistance with this or related immigration-related issues.  We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Never Give it Up? Relinquishment of U.S. Citizenship

By Aleksandra Michailov, Esq.|October 17th, 2016|

In recent years, the U.S. government has been more efficient in reaching its citizens living abroad in order to collect U.S. taxes. Those efforts seem to have spurred a growing trend of U.S. citizens choosing to relinquish their U.S. citizenship. Burdened with ever-increasing tax compliance regulations, onerous reporting obligations and mounting professional fees to accountants and advisors, ordinary Americans residing aboard are taking steps to simplify their lives by giving up U.S. citizenship.

Voluntary Renouncement

The so-called “Voluntary Renouncement” is the most common process used to relinquish U.S. citizenship. Typically, the applicant has two interviews with an officer at a U.S. consulate or embassy. The first interview is an information meeting designed to confirm the person’s U.S. citizenship, as well as discuss the consequences of renunciation. After the initial interview, any individual who decides to proceed will be required to undergo a waiting period to make sure that he or she has enough time to adequately ponder the irreversible decision.  After a period of time, a second interview is scheduled to complete the process.

During the second meeting, the individual will be interviewed to assess whether he or she is acting intentionally and voluntarily. Consular officers follow guidelines to assure that the intent is truly voluntary. If so, the consular officer administers an oath of renunciation, and the soon-to-be former U.S. citizen signs an oath or affirmation of renunciation of nationality and a statement of understanding of the consequences and ramifications of relinquishment or renunciation of U.S. nationality. After the oath, the officer prepares a Certificate of the Loss of Nationality that is filed with the Department of State for final approval. Once approved, the Certificate is mailed to the U.S. Citizenship and Immigration Services, as well as the now officially former U.S. citizen.

Parents Can Not Relinquish on Behalf of Children

Relinquishment of U.S. citizenship has profound and irreversible consequences. Therefore, it is required that the candidate has a voluntary intent to undergo the process and such intent cannot be expressed by another party. A minor child requesting relinquishment would likely be doing so due to parental influence and it is impossible to ascertain whether the child’s intent is completely voluntary.

In fact, consular officers are instructed in the Foreign Affairs Manual that “Children under 16 are presumed not to have the requisite maturity and knowing intent.” It is important to note that parents cannot renounce citizenship on behalf of a child once the child has US citizenship.  The regulations generally require that a child wait until age 18 to renounce his or her own citizenship if this is the path the child chooses to take

Immigration Consequences

After relinquishing U.S. citizenship, the former citizen immediately begins to be treated as any other foreign national. For example, in order to enter the U.S. to travel or visit family and friends, the person would need to apply for a visa or a visa waiver. Similarly, in order to work in the U.S., the individual would need to apply for work-authorized status such as H-1B or L-1, or receive an Employment Authorization Document (“EAD”), if eligible. It is important to note that former citizens do not received preferential treatment when applying for admission to the U.S.

For those with minor children, a U.S. passport or green card may open up opportunities for the child in the future.  It is important to note that if a U.S. citizen renounces citizenship he or she no longer has the legal right to transmit citizenship to minor children.

Moreover, relinquishment of U.S. citizenship is irreversible. Once citizenship is relinquished, any individual wishing to become a U.S. citizen again will need to follow standard immigration procedures: become a legal permanent resident first and apply for naturalization at a later time.

Non-Immigration Consequences

Relinquishment of citizenship may also have unintended consequences affecting taxes, for example an exit tax levied on the person’s global assets. Therefore, it is crucial that anyone contemplating citizenship renunciation should also seek advice from an experienced tax professional.

How Can We Help

Capitol Immigration Law Group PLLC offers a wide range of immigration law services. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments. We stand ready to help analyze any time-sensitive cases. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

U.S. Implements Changes to the Visa Waiver Program

By Aleksandra Michailov, Esq.|January 28th, 2016|

As of January 21st, 2016, the U.S. began implementing changes under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (the Act). Under the Act, travelers in the following categories are no longer eligible to travel or be admitted to the United States under the Visa Waiver Program (VWP):

  •     Nationals of VWP countries who have traveled to or been present in Iran, Iraq, Sudan, or Syria on or after March 1, 2011 (with limited exceptions for travel for diplomatic or military purposes in the service of a VWP country).
  •     Nationals of VWP countries who are also nationals of Iran, Iraq, Sudan, or Syria.

Travelers in the above categories will be able to apply for a visa using the regular immigration process. People who need a visa for urgent travel, may be able to have their application processed on an expedited basis.

In addition, also as of January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and have previously indicated holding dual nationality with Iran, Iraq, Sudan, or Syria on their ESTA applications will have their current ESTAs revoked.

The above restrictions may be waived by the Secretary of Homeland Security on case-by-case basis. A waiver may be granted if it in the law enforcement or national security interests of the U.S. For example., a waiver may be granted to:

  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty;
  • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes;
  • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and
  • Individuals who have traveled to Iraq for legitimate business-related purposes.

How Can We Help

The new Act does not ban travel to the United States, but rather brings restricts the Visa Waiver Program eligibility for some travelers. If you are a national of Iran, Iraq, Sudan, or Syria, or have visited those countries since March 2011, you may need to apply for a nonimmigrant visa before traveling to the United States. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments. We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

 

The Automatic Visa Revalidation Program Allows Travel to Contiguous Territories Without Needing a Visa Stamp

By Dimo R. Michailov, Esq.|November 11th, 2015|

Foreign nationals who are in the U.S. on a nonimmigrant status are aware (we hope) that normally they need to have a valid U.S. visa stamp in order to reenter the U.S. after a trip abroad.    Every day our office fields questions by nonimmigrant status holders about the process of renewing their U.S. visa stamp due to an upcoming trip but the reality is that sometimes people simply do not need a new visa if their destination is one of the Caribbean islands or Canada and they are planning a short trip.    We hope to help our readers understand how the automatic visa revalidation program can help them with traveling and reentering the U.S. without getting a new U.S. visa stamp. (more…)

Travel Alert: Passport Validity Date May Affect Duration of Authorized Stay (I-94) Upon Entry into the U.S.

By Dimo R. Michailov, Esq.|May 14th, 2015|

The summer has traditionally been a busy traveling season and as the summer start to approach and many of our clients and readers start making international travel plans, we see an increased flow of inquiries and consultations regarding travel and passport expiration dates.  Most often the question is, What should be the duration of the passport for purposes of (re)entering the U.S. after travel abroad?

At Least Six Months Passport Validity Required

As an initial matter, the Customs and Border Protection (“CBP”) requires that passports be valid for six months beyond the date the traveler will exit the U.S., however, the U.S. has signed agreements with a number of countries to waive this requirement.  When such an agreement is in place, the passport must be valid for the entire period of the visitor’s intended stay, but the additional six month validity period is not required.   Please read our article on the Six-Month Club for more information.

Passport Expiration Date Before Petition Expiration Date

The question then arises for travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc.  For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days.  However, if the passport has an expiration date which is before the H-1B petition expiration date, CBP, by regulation, should issue a Form I-94 card with expiration date equal to the passport expiration.

Note: CBP no longer issues paper I-94 cards upon entry into the U.S. Effective May 2013, the only evidence of status would be the passport stamp and status expiration date endorsement on the actual passport. The I-94 card is electronic and can still be printed by going to https://i94.cbp.dhs.gov/. In fact, we encourage our clients and readers to always try to print (on paper or save electronic copy for your records) their Form I-94 information any time they enter the U.S.

However, CBP is inconsistent in the application in this rule and they often disregard the earlier passport expiration date.  This, unfortunately, creates confusion among many travelers who seem to get arbitrary Form I-94 expiration dates during different travels.

My I-94 Expiration Date Is The Same as My Passport Expiration and Earlier than My Petition Expiration — What Should I Do?

As discussed above, where the passport expiration date is before the petition (Form I-797) expiration date, CBP should issue Form I-94 (and endorse the passport) with expiration of status date equal to the passport expiration.  As a result, the foreign national is allowed to remain in the U.S. for a period which is shorter than the period they (and their employer) expected.   In such cases, it is important to understand the options for obtaining a Form I-94 with expiration date equal to the petition expiration.

Option 1 – Form I-94 “Correction” by CBP.  Normally, CBP allows travelers who have been issued erroneous Form I-94 cards to visit a CBP office (normally at international airports) and, after obtaining a new passport, to request that they be issued a corrected I-94 card.    This approach has worked for some of our clients in the past.  However, some CBP offices refuse to issue such corrections because, technically, the  initially issued Form I-94 had the proper expiration date.

Option 2 – Application for Extension of Status.  Alternatively, an application to extend status may be filed with U.S. Citizenship and Immigration Service (“USCIS”) to request that a new Form I-94 card be issued to match the Form I-797 petition expiration date.  This option must be pursued before the Form I-94 expiration date or the extension of status application may be denied.

Note that USCIS does not require that a passport has a validity for the entire period of requested extension of stay — all USCIS needs is a passport valid at the time of filing of the application to extend status.  8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire period of time requested in the extension of status application as the regulations only require that the individual “agree[s] to maintain the validity of his or her passport.”

Option 3 – Leave the U.S. and Reenter with a Renewed Passport.  Finally, the foreign national may leave the U.S. and after obtaining a new passport, travel back to the U.S.   If a U.S. visa has been issued on the passport that has expired, the foreign national should carry both the new passport and the expired passport containing the valid visa. There is no need to re-apply for a new visa unless the visa term has itself expired.

The best option would certainly depend on each individual case’s circumstances, especially whether or not the I-94 status validity date has already expired, and we certainly recommend careful analysis and review before selecting one of these options.

Consequences of Overstaying Form I-94 Expiration

It is very important to understand that any corrections of Form I-94 card, extensions of status applications or travel abroad be attempted before the Form I-94 expiration date, as issued and determined by CBP.  Overstay of the Form I-94 expiration date starts the period of unlawful presence which has severe consequences.

First, overstaying the end date of the authorized stay, as provided by the CBP officer at a port-of-entry and noted on the Form I-94 card would automatically void or cancel the visa stamp.   In addition, filing for an extension of status after I-94 expiration has a significant chance of denial.    We have been able to obtain successful “nunc pro tunc” (with retroactive date) status approvals, but not every situation may allow this kind of filing and successful approval.   Finally, overstaying the I-94 expiration by more than 180 days may trigger the 3-year ban of entering the U.S. (overstaying by more than one year may result in a 10-year ban).

Travel Preparations — Ensure Passport Has Sufficient Validity

We urge our readers and clients, especially those who plan to enter the U.S. on the basis of a USCIS-approved petition, to ensure that their passport has validity greater than the expiration date of their petition approval notice.    Also, we always recommend that when a traveler arrives into the U.S. and during border control, to verify his or her passport stamp (and later, their online Form I-94 card) expiration date, as noted by the CBP officer, and to address any questions or concern at that time with the CBP officer.    Addressing issued at a later time is usually complicated (and often, costly).

Conclusion

The status validity date stamp and endorsement in the passport is extremely important and it should be checked upon every entry into the U.S. and, ideally, while at the CBP agent station.   If you feel that you have not been issued status validity (and Form I-94) with a correct date, ask the CBP agent or ask to speak with a supervisor.  Foreign nationals should not assume that because they are entering on a visa and pursuant to a I-797 petition approval which has a certain expiration date, that the authorized period of stay in the U.S. on their passport/Form I-94 would be the same.

Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended.  Please do not hesitate to contact us if we can be of any help.   Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

Green Card Holder and “I-327 Advised” Passport Notation – What To Do?

By Dimo R. Michailov, Esq.|May 6th, 2015|

Lawful Permanent Residents (LPRs) who travel frequently outside of the U.S. and spend extended periods of time at a time (during a single trip or through pattern of shorter but frequent trips abroad) are often questioned at the Customs and Border Protection (CBP) U.S. port of entry about their residence and intention to remain a U.S. permanent resident.     What happens at the CBP port of entry has major implications on the ability to retain one’s green card and continue to travel freely outside of the United States as a green card holder.

Border Scrutiny on the Rise

A significant (and seemingly growing) portion of our reentry permit practice group’s first-time callers are green card holders (who do not have a reentry permit) who have been questioned at the CBP port of entry during their recent entry into the U.S.    Often such CBP interactions are unpleasant, really long and very stressful to the subject green card holder.   During this secondary CBP port of entry inspection and questioning, border officers often ask questions trying to understand the period of time spent by the green card holder outside of the U.S., in addition to the reasons for such trips and maintenance of current and future ties to the U.S.   In other words, the CBP officer is trying to establish whether the green card holder has abandoned their U.S. permanent residency.

As a result of this kind of secondary inspection, a green card holder who has spent extended period of time outside of the U.S. or has demonstrated a pattern of frequent (but not so long) travels abroad may come with a verbal or written warning that they should consider obtaining a reentry permit document – or “I-327 Advised” notation in their passport.

What is the “I-327 Advised” Passport Notation?

“I-327” is the official form number of the reentry permit document.    When a reentry permit (which looks a little bit like a U.S. passport booklet) is issued, its official document name is “I-327.”   This is why when a CBP officer recommends a reentry permit, after observation that a green card holder is spending too much time outside of the U.S., they would write “I-327 Advised” in the passport.

The purpose of this notation is to reflect a warning that CBP has determined that the green card holder may be spending too much time outside of the U.S. and that the actual green card may be put in danger.   The notation is a recommendation by CBP to the foreign national to obtain a reentry permit in order to avoid risking their green card validity.

I Received “I-327 Advised” Notation – What Should I Do?

We recommend that you consider obtaining a reentry permit as soon as possible.  Depending on the travel plans and how long the applicant will plan on staying in the U.S., there may be a number of filing strategies.  We certainly recommend that a reentry permit is, at a minimum, filed before departing the U.S. so that during the next entry into the U.S. there will be a proof that steps have been taken to comply with the “I-327 Advised” notation.     Please see our article on Reentry Permit Timing Strategies and Considerations as it discussed important factors and requirements – including the requirement to file the actual reentry permit while the applicant is physically in the U.S. and to complete the required biometrics (which can be done in the U.S. territories only).

Green card holders who are given an “I-327 Advised” passport notation (or its verbal equivalent warning) but do not apply for a reentry permit as soon as possible and while they are in the U.S. take the risk that upon their next entry into the U.S. CBP may subject them to increased scrutiny and perhaps even consider green card abandonment proceedings.    And even if the CBP questioning does not result in more serious consequences, for most people who travel abroad frequently the ability to avoid the secondary CBP questioning  process altogether by flashing a reentry permit upon initial CBP inspection is worth the effort to obtain a I-327 reentry permit document.

Conclusion

Our office has a special reentry permit division where we handle reentry permits on a daily basis for a variety of green card applicant situations and we will be delighted to discuss and, possibly, help throughout the application process.    Please do not hesitate to contact us with any questions or comments or complete the case evaluation and quote form if we can be of any assistance with this or related immigration-related issues.  We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Immigration Relief Options for Nepal Nationals Impacted by the Recent Disaster

By Dimo R. Michailov, Esq.|May 6th, 2015|

After the recent earthquake in Nepal, our office is receiving a number of inquiries by Nepali nationals regarding relief options and alternatives in various U.S. immigration situations.   USCIS has also indicated that they would provide relief in a number of situations understanding that a disaster may affect the ability of an individual to maintain status in the U.S. or to otherwise comply with the relevant immigration regulations.

As a result, there are a number of options for Nepali nationals who are impacted by the recent disaster.   Please note that other foreign nationals may also be able to claim relief under these options if they can show that their ability to comply with immigration regulations has been impacted by the disaster.

Application to Extend (or Change) Status from within the U.S.

Nepali nationals can now obtain relief by having an application for extension or change of status approved after such application is filed after the authorized period of admission has expired.

Advance Parole – Expediting and Extending

USCIS permits re-parole of individuals already granted parole.  Also, extension of certain parole grants and expedited processing of advance parole applications is available.

Employment Authorization

USCIS would allow expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship.  As a result, Nepali students who are on F-1 status and would otherwise qualify for financial hardship EAD work permit can apply to do so on the basis of the disaster.   Similarly, USCIS would review favorably expedited processing of other pending EAD applications.

Fee Waivers

USCIS would entertain requests to have certain immigration fees waived based on the applicant’s inability to pay or similar hardship.

Immediate Relatives Immigrant Petitions

USCIS may permit expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs) where either the petitioner or the beneficiary are Nepali nationals impacted by the recent events.

Foreign Assistance to LPRs Stranded Overseas

USCIS and Department of State are also willing to provide assistance to Lawful Permanent Residents (LPR) who are stranded overseas without immigration documents such as green cards.

Immigration Relief Options Are Not a Temporary Protected Status

We would like to add that these immigration relief options are not equivalent to a measure granting protetion from removal and work authorization such as Temporary Protected Status (TPS).     For example, the announced relief measures do not allow Nepali nationals who are in the U.S. without status to obtain status.   Similarly, the relief measures to not grant a right to a work permit (perhaps with the exception of F-1 EAD based on hardship).    We know that USCIS is considering a number of requests for introducing a TPS for Nepali nationals but such relief has not been granted yet and at this time we do not know if TPS will be granted to Nepali nationals.

Conclusion

We applaud USCIS’ willingness to accommodate the needs of certain Nepali nationals who are impacted by the earthquake.   Our office stands ready to assist affected Nepali nationals who need help with their immigration options.  Please contact us for a free initial consultation and analysis of your options.

Lawmakers Rethinking the Visa Waiver Program

By Aleksandra Michailov, Esq.|March 20th, 2015|

This week the House Homeland Security Committee will consider legislation to change background checks requirements of the Visa Waiver Program for individuals who come to the United States, amidst growing concerns about extremist groups like ISIS.

What is the Visa Waiver Program?

The Visa Waiver Program (VWP) has been in place since 1986, and allows citizens of participating countries to travel to the United States for as long as 90 days without a visa. Among others participating countries include Japan, South Korea, France, the United Kingdom and Germany. Travelers using the program to visit the United States are still required to undergo screening, but are not subject to the lengthy in-person consular interview process via applicants go through. For more details about the current program please click here.

What is discussed on the Hill?

Recently the VWP has also drawn criticism from lawmakers who believe it could be used to allow foreign extremist fighters to enter the United States using passports from countries that participate in the program. Lawmakers from both the Democratic and Republican parties have introduced bills that would modify the program by either suspending it entirely or just for countries that have been identified as having passport holders fighting for terrorist groups. Other proposals would allow the United States to exclude countries that do not provide sufficient information.

Some warn the United States must be careful not to distance friendly countries that provide similar reciprocal travel benefits to U.S. citizens. They say restrictive visa policies could deter tourists from visiting the United States and lead to loss of revenue. Others have even argued for expansion of the program, provided that screening and other safety measures remain in place. The U.S. Travel Association has said expanding the visa waiver program to include more countries would increase U.S. tourism by 600,000 visitors and add $7 billion to the U.S. economy.

The committee is likely to discuss a bill introduced by Rep. Candice Miller (R- Michigan), which would improve the databases used to conduct background checks on individuals who enter the United States through the waiver program and allow the Department of Homeland Security to suspend a country’s participation in the program if it doesn’t provide sufficient information regarding potential threats.

In a recent interview regarding the bill Rep. Miller said “Although DHS continuously vets all visa applicants against our terrorism databases, we do not routinely get the critical information we need to identify and stop foreign fighters bound for the U.S. from our overseas partners in the program. This poses a serious threat to our homeland and must be addressed.”

Former Homeland Security Secretary Michael Chertoff also suggested last week during a Senate Homeland Security and Governmental Affairs Committee hearing that legislation could provide additional safety assurance. At the Committee hearing he said “Constructed in a way to powerfully reduce vulnerabilities in our immigration and travel system, it is my belief that the visa waiver program offers significant benefits to U.S. national and economic security and should not be pulled back in a time like this, but further evaluated for ways that can strengthen our security and the benefits it may yield.”

We continue to monitor the legal developments in the Capitol Hill. Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Reentry Permit Timing Strategies and Considerations

By Dimo R. Michailov, Esq.|January 8th, 2015|

U.S. permanent residents (green card holders) who spend extended period of time are likely (or should be) aware that the reentry permit is a document, issued by U.S. Citizenship and Immigration Service (USCIS) allowing its holder to remain outside of the U.S. for an extended period of time without causing their green card to be considered abandoned (or facing hostile questioning at the U.S. port of entry).       However, during the reentry permit application process, one of the main factors of success is the careful planning for the application filing and completing the required biometrics.

Filing of Reentry Permit Requires Physical Presence in the United States

The reentry permit regulations require that the green card holder applicant be in the U.S. physically at the time of filing.   The time of filing refers to the date USCIS receives the reentry permit application and start processing it – and normally this is the day FedEx delivers the application documents to USCIS.

Because of this requirement, reentry permit applicants, and especially those who are abroad and are considering filing a reentry permit application, must carefully plan the timing of their travels to the U.S. and coordinate their reentry permit application filing (with their attorneys, if they use an attorney for the filing).   It is generally okay for the application to be received by USCIS on the day the applicant has landed in the U.S.  In fact, our office routinely plans the filing of reentry permit applications for our green card holders who reside abroad in such way to ensure the application is filed on the day of arrival or the first available business day afterwards in order to maximize the time the green card holder has in the U.S. in order to complete the required biometrics appointment during the same trip to the US.

The Required Biometrics Must be Done in the U.S. Only

In addition to the requirement that the applicant must be in the US at the time of filing of the reentry permit application, the reentry permit process requires the applicant to submit to required biometrics – digital fingerprinting and digital photo.   This is a required step and must be completed even if the applicant has done biometrics previously (even if it was recently).    Normally, several weeks after filing USCIS issues a biometrics appointment notice and mails to the applicant inviting them to appear and have their biometrics taken.

When our office files reentry permit applications and when we request expedited processing of the biometrics appointment (which we often do), USCIS is able to schedule the biometrics appointment in anywhere between two and four weeks from the filing date.   As a result, reentry permit applicants should consider the timing of their biometrics process when they plan for reentry permit.     One option is to plan to remain in the US for at least 3-4 weeks in order to do the filing and the biometrics during the same trip to the US.

Another option is to do two trips – one short trip to the US for filing of the application and then, within no more than 120 days of the date of filing, taking another trip to the US to complete the required biometrics.   Traveling to the US again for biometrics makes this an expensive alternative, but it is an option nonetheless for green card holders who are unable to remain in the US for 3-4 weeks at a time to do filing and biometrics during a single trip.    In addition to continental US, the required biometrics can be completed in Guam or Hawaii which makes it a desirable alternative to green card holders residing temporarily in the Asian region.

Conclusion

The reentry permit application process may be deceivingly straightforward, especially for green card holders who must depart the US relatively quickly or for green card holders who reside abroad.    We urge careful and early planning for the various stages of the reentry permit application process and we also urge using the services of an attorney who can coordinate the process and assist from within the US should any issues with the process arise.

Our office has a special reentry permit division where we handle reentry permits on a daily basis for a variety of green card applicant situations and we will be delighted to discuss and, possibly, help throughout the application process.    Please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with this or related immigration-related issues.  We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.