Introduction
On April 12, 2018, the Department of State (DOS) published questions and answers from an outreach event that it hosted with the American Immigration Lawyers Association (AILA) State Department Liaison Committee. The DOS provided answers to pressing questions about its policies and procedures from ALIA. In this post, we will review some of the most interesting information gleaned from the question and answer session along with analysis in a non-comprehensive manner. To make it easier for you to find the information that you are looking for, we have organized the topics into a table of contents. The following is a link to the entire document for those who are interested in reading all of the questions and answers [PDF version].
While the DOS’s answers to AILA’s questions are instructive and, in some cases, clarify its current interpretation of statutes, regulations, and agency guidance, please note that none of the answers, in and of themselves, are binding on DOS employees or any other officers involved in administering the immigration laws.
1. Blanket L Petitions
2. Visa Revocations Based on Domestic Violence
3. Visa Revocations and USCIS Benefits
4. Reasons for Visa Revocation and Rebuttal
5. National Vetting Center
6. Shorter Visa Validity
7. E2 Visas for Israel
8. Reapplication for Visa During Extended Administrative Processing
9. Processing of Third Country Nationals
10. Validity of E Visa Corporate Registration
11. Affidavit of Support in 204(l) Cases
12. Factors to Consider in Light of FAM Changes on Public Charge Analysis
13. Non-Cash and/or Supplemental Benefits in Public Charge Analysis
14. Issues Involving Question #17 Of the Form DS-3035 (J1 home residency requirement waiver)
15. Misrepresentation of Country of Nationality to Facilitate Faster Removal
16. Policy on Whether UK Caution is CIMT and Possible Discrepancy Between DOS and CBP
17. “Travel Ban” Waiver Processing
18. O2 Visa Issuance Before O1
19. H4 and L2 Dependents Not Listed on Form I-797 Approval Notice
20. Designation of Consular Posts for LBGT Immigrant Visa Applicants
Conclusion
1. Blanket L Petitions
AILA posed several questions about blanket L petitions, noting that some members have reported that U.S. consulates have been rejecting an increasing number of blanket L petitions as “not clearly approvable.”
The DOS stated that, notwithstanding the reports, the relevant guidance in its Foreign Affairs Manual (FAM) at 9 FAM 402.12 [PDF version] remains current. To learn more about blanket L petitions, please see our full article [see article].
AILA also inquired whether the DOS is following the guidance in the recent Administrative Appeals Office (AAO) decision, which was adopted as binding policy by the United States Citizenship and Immigration Services (USCIS), Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017) [PDF version] [see article]. In response, the DOS stated that it considered its guidance in the FAM to be consistent with the AAO’s decision and USCIS policy in the Matter of G-. However, the DOS added that “where analysis similar to the AAO’s decision is required to determine if a particular applicant will work in a ‘managerial capacity,’ the visa application may not be clearly approvable.”
2. Visa Revocations Based On Domestic Violence
AILA noted that its members have reported examples of visa holders having their visas prudentially revoked based on arrests for domestic violence. These revocations occurred in cases before the visa holders were convicted.
The DOS stated that, “[a]s a matter of long-standing policy, the Department prudentially revokes a visa when it receives information that a visa holder has been arrested for any crime, including domestic violence, that may result in a visa ineligibility.” In response to further questions, the DOS made clear that it has not changed its policies regarding prudential revocations.
3. Visa Revocations and USCIS Benefits
AILA explained that, in a previous meeting with DOS, it had raised “the issue of USCIS refusing immigration benefits to individuals whose visas had been prudentially revoked following a DUI arrest.” AILA stated that this appears to be an ongoing issue, and that its members were concerned because their understanding was “that it is State’s position that prudential revocation of a visa is effective only upon the departure of an individual from the United States.”
DOS responded that it had asked the USCIS to issue guidance on the issue, but that no such guidance had been issued as of the date of the answer.
For more information on prudential revocations based on DUI arrests, please see our article on the subject [see article].
4. Reasons for Visa Revocation and Rebuttal
AILA noted that, under 9 FAM 403.11-4(A), “a visa holder must, when practical, be allowed the opportunity to show why the visa should not be revoked” [PDF version]. AILA reported that members have found that those whose visas are revoked are often not informed of the reason for the revocation, thus denying them the opportunity to attempt to show why the visa should not be revoked. Instead, applicants are generally being provided with a standard revocation notice under section 214(b) of the Immigration and Nationality Act (INA).
DOS thanked AILA for bringing this issue to its attention. DOS stated that the cited to guidance in the FAM “does not reflect the substance of [DOS] regulations” and that the guidance would be reviewed. DOS explained that, under DOS policy, consular officers are instructed to provide notice to a visa holder prior to visa revocation, provided that doing so is practicable, but that consular officers are not required to explain the reason for the revocation. The DOS stated that “[t]he forum to address visa eligibility issues is the visa interview upon reapplication.”
In this answer, the DOS recognized a discrepancy between guidance in the FAM and its regulations. Because the FAM is a guidance tool for DOS officers, the regulations prevail. Accordingly, the DOS clarified its rules regarding visa revocation notification and stated that it would review the FAM guidance that is not in line with DOS rules and policy.
We will publish updates on this issue if and when the DOS provides more information.
5. National Vetting Center
AILA requested updates on the creation of the National Vetting Center. The creation of the National Vetting Center — a multi-agency effort that is to include the DOS — was directed by President Donald Trump in a February 6, 2018 Presidential Memorandum. Please see our full article on the Presidential Memorandum to learn more [see article].
The DOS referred questions on the establishment of the National Vetting Center to the Department of Homeland Security (DHS).
6. Shorter Visa Validity
AILA requested information about the revised 9 FAM 403.9-4(B) (U) [PDF version], which it described as “giv[ing] consular officers greater latitude to issue visas for less than the full validity and number of entries permitted by reciprocity.” AILA added that some of its members have been reporting shorter visa validity in certain cases.
Effect on Visa Wait Times
Regarding the revised guidance, AILA asked whether the DOS anticipated that it will have a negative effect on visa wait times. The DOS responded by stating that the revisions to 9 FAM 403.9-4(B) (U) “represents a clarification of existing guidance and policy.” Accordingly, the DOS did not anticipate that the revisions would have any effect on wait times.
Effect on Eligibility for Nonimmigrant Visa Interview Waivers
AILA asked whether an individual who is eligible for a discretionary waiver of a nonimmigrant visa interview would be negatively affected if his or her prior visa was issued with a shorter validity period than what was allowed under the applicable visa reciprocity schedule. The DOS stated that this would “not generally be a disqualifying factor for an interview waiver.”
Applies to All Nonimmigrant Visas
AILA inquired whether the revised guidance will affect L visa petition validity. The DOS answered in the affirmative, noting that the regulations interpreted by the guidance — 22 C.F.R. 41.112(c)(1) and (2) — “applies to all nonimmigrant visas.”
Effect on F1 Students Considering Occupational Practical Training (OPT)
AILA asked whether DOS will “take into consideration [OPT] for F1 students when determining the validity period of the visa.” DOS responded that a consular officer adjudicating an F1 application “would not be expected to take into consideration the possibility that the student may later seek to participate in OPT when determining whether the student should be issued a full-validity visa or limited visa.” However, DOS added that under 9 FAM 403.9-4(C), consular officers are instructed “to be judicious in utilizing their discretionary authority to limit visas.”
Evidence Required to Establish “Long Term” Ties
AILA asked how the term “long term,” as used in the FAM, is defined, and sought guidance on “what type of information/documentation should be provided to establish long term ties.”
DOS responded that the types of evidence and documentation would vary on a case-by-case basis. It included an excerpt from 9 FAM 403.9-4(C)(c)(3) as an illustrative example of information and documentation that could establish an applicant’s long term ties to his or her home country, reproduced below:
Effect of Satisfying INA 214(b)
AILA inquired whether satisfying the nonimmigrant intent requirement of section 214(b) of the Immigration and Nationality Act (INA) is sufficient for receiving a visa that is valid for the full reciprocity period. In response, the DOS noted that most nonimmigrants are required to establish nonimmigrant intent in order to receive a visa; however, DOS explained thatmeeting this requirement does not in and of itself guarantee that the individual would be issued a full validity visa. The visa validity period may still be limited in accordance with 22 C.F.R. 41.112(c).
7. E2 Visas for Israel
The DOS explained that there is still no agreement between the United States and Israel that would allow Israelis to qualify for E2 nonimmigrant investor visas. However, DOS added, “Israel is still in the process of making certain regulatory changes that we expect will enable the [DOS] to determine that Israel meets the similarity of status requirement.” DOS stated that it could not provide an estimate of when this may occur.
Please see our blog post on the possibility of Israeli nationals becoming eligible to participate in the E2 program [see blog]. We will provide update when more information on the potential for E2 visas for Israel becomes available.
8. Reapplication for Visa During Extended Administrative Processing
AILA asked whether an applicant who is undergoing extended administrative processing, defined as lasting one year or more, may file a new application. The DOS responded that, while there is no harm in an applicant filing a second visa application while one remains processing, doing so would be unlikely to benefit the applicant “unless the applicant has undergone a change in circumstances or has new information to provide in the visa application or interview.”
In general, an applicant seeking a visa should consult with an experienced immigration attorney for case-specific guidance.
9. Processing of Third Country Nationals
AILA acknowledged that available information about the processing of third-party nationals is not standardized across all DOS consular posts and that “[v]isa appointment availability and procedures for [third country nationals] may vary according to U.S. embassy or consulate, based on capacity and resources.” DOS referred individuals to its page on the subject of third-country nationals applying for visas in Canada and Mexico. We have uploaded a PDF version of the page for your convenience [PDF version]. This information is specific to individuals applying at posts in Mexico and Canada
AILA asked about DOS’s rules for first-time visa applicants in Mexico specifically, noting that Mission Mexico appears to limit first-time applicants to those who are either Mexican nationals or who reside in Mexico. DOS responded that Mission Mexico’s policy is consistent with DOS policy, which provides consular posts with discretion in handling applications from non-resident aliens. DOS added that “Mission Mexico has developed guidelines for accepting certain applications submitted by individuals who are not actually resident in Mexico and continues to accept all applications submitted by [third country nationals] who reside in Mexico on FM2 and FM3 residence permits.”
In general, third country nationals seeking visas must refer to the policy and procedure of the post at which they want to seek a visa. An experienced immigration attorney may assist in each step of the process, including helping an applicant determine where he or she may be eligible to apply for a visa.
10. Validity of E Visa Corporate Registration
AILA noted that some consular posts “register” corporate entities as E visa entities as part of E visa processing. It stated that, at such posts, “E visas for employees were issued until registration expired, regardless of the amount of time remaining on the registration [of the E visa entity] at the time of the visa application. However, AILA members have reported that individuals seeking E visas as employees close to the expiration of the registration of the E visa entity have been “receiving emails from the post[s] suggesting that they cancel their appointments until the entity is re-registered.” AILA sought clarification on the current policy.
DOS responded by stating that corporate “registration” of E visa entities is done at certain posts for the convenience of both applicants and E visa entities. Regardless, the applicant bears the burden of proof for demonstrating that he or she meets all requirements for E visa eligibility. Consular officers have authority to request any documentation needed to determine the applicant’s eligibility under 22 C.F.R. 41.105(a)(1) and they may limit the validity period of an E visa under 22 C.F.R. 41.112(c). DOS clarified that there is no set policy on E visa corporate “registrations,” and policies properly vary from post to post.
11. Affidavit of Support in INA 204(l) Cases
AILA requested guidance on the affidavit of support requirement for INA 204(l) (where U.S. citizen petitioner for relative dies before the visa appointment) cases. Specifically, AILA asked whether an applicant filing under section 204(l) can rely on a Form I-134, Affidavit of Support, or whether the applicant must file a Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support. AILA stated that it has heard reports of some posts requiring the Form I-864W and some posts accepting the Form I-134.
DOS clarified by stating that “[t]he death of the petitioner/sponsor does not relieve the applicant of the need to have a valid and enforceable Affidavit of Support (Form I-864), if otherwise required.” The substitute sponsor filing the Form I-864 “must meet all the sponsor requirements that would have applied to the visa petitioner” and “must be the spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of the sponsored alien, or the legal guardian of the sponsored alien.”
12. Factors to Consider in Light of FAM Changes on Public Charge Analysis
AILA noted that in January 2018 the following language was deleted from 9 FAM 302.8-2: “A properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the totality of the circumstances analysis…” for overcoming the presumption of public charge. Under the revised 9 FAM 302.8-2 [PDF version], adjudicators are instructed to examine the applicant’s “age, health, family status, assets, resources, financial status, education, and skills.” The FAM further provides that the affidavit of support is only to be considered a “positive factor” in establishing whether the applicant establishes that he or she is not inadmissible on public charge grounds in the totality of the circumstances.
The DOS stated that this change was made in light of President Trump’s March 6, 2017 Presidential Memorandum on Implementing Immediate Heightened Screening and Vetting [see article], and that the changes bring the FAM guidance more in line with the INA. First, the INA states at section 212(a)(4)(B)(ii) that consular officers “may also consider any affidavit of support under section 213A” in the public charge analysis, not that it is generally dispositive. Second, section 212(a)(4)(B) states that age, health, family status, assets, resources, financial status, education, and skills must be taken into account in determining whether an alien is likely to be a public charge.
13. Non-Cash and/or Supplemental Benefits in Public Charge Analysis
AILA noted that 9 FAM 302.8(B)(1)(d)(1) now reads as follows: “[Non-cash and/or supplemental benefits] should not be considered to be benefits when examining the applicant under INA 212(a)(4) [(public charge inadmissibility)] and may only be considered as part of the totality of the applicant’s circumstances in determining whether an applicant is likely to become a public charge.” AILA asked for clarification on how the receipt of non-cash and/or supplemental benefits will be weighed by DOS in making public charge determinations.
The DOS stated that these revised FAM notes “clarify that consular officers must consider the totality of the applicant’s circumstances and likelihood that he or she will become a public charge.” Thus, an applicant’s acceptance of non-cash assistance benefits is not in and of itself disqualifying, but “is just one data point in a totality of the circumstances analysis…” Specifically, DOS would look to determine “whether an applicant who in the past received such benefits or is currently receiving such benefits will be likely to resort to public cash assistance or long term institutional care.” DOS clarified that “[w]hether the prior receipt of non-cash benefits tips the totality of circumstances analysis toward a public charge ineligibility finding is something that will need to be determined on a case-by-case basis in light of the individual applicant’s totality of the circumstances.”
There have been extensive rumors of dramatic changes involving the Government’s position on public charge, although no such changes have been implemented. However, AILA’s questioning notes that the DOS has made several edits to the public charge portions of the FAM that would appear to represent a change in its posture on certain aspects of the totality of the circumstances analysis. When attempting to establish that an applicant is not inadmissible on public charge grounds, a petitioner and applicant should work closely with an experienced immigration attorney for case-specific guidance.
14. Issues Involving Question #17 Of the Form DS-3035 (J1 home residency requirement waiver)
AILA noted that question #17 on the Form DS-3035, used for individuals seeking a waiver of the two-year home residency requirement that applies to J1 exchange visitors, asks applicants “to indicate the date/place of first entry using a J1 visa and the issuing post for the J1 visa.” AILA observed that this question is not applicable to individuals who enter the United States in a nonimmigrant status other than J1, who then obtain a change of status to J1, and who thereafter do not depart the United States and re-enter in J1 status. The DOS acknowledged that it is aware of the inapplicability of question 17 in such cases and that it is reviewing the issue to come up with an appropriate solution. It stated that in any event question 17 “is not a required field” and that applicants to whom it does not apply should leave it blank on the Form DS-3035.
AILA identified another issue involving question #17 on the Form DS-3035. Applicants who are answering the question are asked to select the consular post at which he or she applied for a J1 visa from a drop-down menu provided in the online form. However, the drop-down menu was incomplete at the time AILA asked the question, omitting a number of posts. DOS stated that it is aware of the issue and is seeking to correct it. Applicants who have to select an incorrect post are instructed to “provide the correct information in the ‘Statement of Reason’ section on the form.”
Those seeking a waiver of the J1 home resident requirement should consult with an experienced immigration attorney for guidance on the waiver process.
15. Misrepresentation of Country of Nationality to Facilitate Faster Removal
AILA asked a question regarding individuals who misstate their country of origin as Mexico upon being detained by U.S. Immigration and Customs Enforcement (ICE) or the U.S. Customs and Border Protection (CBP) for the purpose of facilitating faster removal to Mexico in lieu of their country of actual origin. AILA members have reported that such individuals, upon filing the Form I-601A, Application for Provisional Unlawful Presence Waiver, have been having their requests refused under section 212(a)(6)(C) of the INA (fraud or willful misrepresentation of a material fact to obtain any benefit under the INA) for having misstated their country of origin as Mexico when detained by ICE or CBP.
AILA stated that, in January 2014, the Administrative Appeals Office (AAO) issued a non-precedent decision that took the position “that an applicant misrepresenting his country of origin as Mexico in order to facilitate faster removal to Mexico rather than to his actual home country was not material as any benefit derived was not intended to gain entry into the United States.” Furthermore, AILA noted that the Board of Immigration Appeals (BIA) has, in a published decision, explained that there is a distinction between voluntary return and voluntary departure, with the latter being a benefit under the INA and the former not. AILA asked the DOS whether it would consider adopting a rule that in cases where “voluntary return” can be established, section 212(a)(6)(C) does not apply.
The DOS thanked AILA for bringing the unpublished AAO decision to its attention. It stated that it would review the opinion and consider whether additional guidance is necessary. It stated that the applicant for a waiver or his or her attorney may contact LegalNet if he or she believes that a ruling is legally incorrect.
16. Policy on Whether UK Caution is CIMT and Possible Discrepancy Between DOS and CBP
AILA noted that under current policy, the U.S. Embassy in London does not consider Assault Occasioning Actual Bodily Harm (ABH) in the United Kingdom to be a crime involving moral turpitude (CIMT). However, it noted that CBP may have a different view on the issue.
DOS responded that it is not pursuing any discussions with CBP about possible inconsistent treatment of alien convictions, contrary to AILA’s understanding. However, it added that it may pursue discussions on a case-by-case basis “any time a live case raises … concerns.” Regarding UK cautions such as ABH, DOS stated that there has been no change in policy regarding its treatment of the issue.
17. “Travel Ban” Waiver Processing
AILA explained that its members experienced what they believed were inconsistent procedures at different consular posts regarding waivers from President Trump’s September 24, 2017 “travel ban,” which applies to nationals of seven countries as of April 18, 2018. DOS responded by stating that it “believe[s] [that] the substance of waiver-related information given to applicants is consistent worldwide.” To this effect, DOS added that there is no actual “waiver application.” Instead, a visa applicant may be informed after his or her interview either that a waiver is not available in his or her case or that he or she is being considered for a waiver.
To learn more about the “travel ban,” waiver procedures, and ongoing litigation on the issue, please see our comprehensive and up-to-date article on the subject [see article]. We will continue to update the article and the site with more information on these and related issues as it becomes available.
18. O2 Visa Issuance Before O1
AILA members have reported that the consular post in London is requiring O2 visa applicants to wait until the related O1 visa is issued before applying for an O2 visa. Furthermore, the post has reportedly been requiring O2 applicants to present evidence of the O1 visa having been issued at the O2 interview. AILA stated that “there are times that the O2 must travel to the U.S. in advance of the O1 to prepare for an event at which the O1 nonimmigrant will perform.” AILA asked DOS to confirm that an O2 nonimmigrant may be granted a visa prior to the related O1 in such a scenario.
DOS stated that there was no overall policy regarding the situation. While it recognized AILA’s concerns, it stated that “there are policy reasons for adjudicating the O1 first and we do not see why the applicants’ desired order of travel should dictate the order of their applications.” However, DOS stated that it would discuss the matter internally and consider whether new guidance is needed.
To learn about O visas, please see our article on O1 visas [see article] and O2 visas [see article]. Furthermore, please see our video, embedded below, on the O1 category:
19. H4 and L2 Dependents Not Listed on Form I-797 Approval Notice
AILA received reports that consular posts in Cairo and Guangzhou are refusing applications for H4 and L2 spouses on the basis that the spouses’ names are not on the Form I-797 approval notices for the respective H and L1 visas. AILA noted that on the Forms I-797 in such cases, “only the name of the principal beneficiary of a Form I-129 is on the I-797 as the spouse is not included in the petition.”
The DOS stated that, in many cases, the names of derivatives are indicated on the Form I-797. However, under DOS policy, officers are required to verify through an online basis that the H1B or L1 beneficiary has a valid petition before issuing a derivative visa. Officers are in fact prohibited from using paper-based proof, including the Form I-797, to verify. DOS stated that it would remind consular officers of this rule.
20. Designation of Consular Posts for LBGT Immigrant Visa Applicants
AILA asked a question concerning LGBT individuals applying for immigrant visas on the basis of marriage to a U.S. citizen of the same gender who are afraid of applying for a visa in their home country because they fear that their LGBT status would be disclosed. AILA stated that the National Visa Center had previously established a process whereby such an applicant “could contact the [National Visa Center] to request a friendly third country by providing a list of several alternative countries to which the applicant was eligible to travel and providing the reasons the applicant could not apply in [his or her] home country.” AILA expressed concern that the National Visa Center is reportedly no longer implementing this policy.
DOS responded that its policy has not changed for LGBT immigrant visa applicants, and the National Visa Center “continues to transfer cases with post concurrence and will assign cases identified by USCIS for an alternate location.” However, it added that certain cases that are expedited to post, including K1 fiancé(e) visa cases, “may not have sufficient time to be assigned to an alternate post before file transfer.
Regarding K1 visa applicants seeking a post transfer on the foregoing basis, the USCIS advised them to include a scan of the full Form I-129F, Petition for Alien Fiancé(e), as well as the following information:
a. USCIS receipt number;
b. Petitioner name;
c. Applicant name and date of birth;
d. Desired U.S. Embassy or Consulate; and
e. Any additional information regarding the request.
DOS advises applicants to provide two or three consular posts where the applicant would be able and willing to appear for processing. Furthermore, applicants should provide a general description of why they are unable or afraid to appear at the embassy or consulate in their home country.
The DOS stated that the National Visa Center will contact designated posts to request that they take jurisdiction over the case. However, some posts may be unable to assume jurisdiction based on workload considerations.
The DOS stated that the general rules for transferring cases is found in 9 FAM 504.4-9. It added that these guidelines are general and do not apply only to LGBT individuals seeking immigrant visas based on marriage. It stated that, while workload considerations may prevent a given embassy or consulate from taking a case, “embassies and consulates are sympathetic to those whose circumstances require them to seek processing of their cases outside their home country.” The DOS advised those seeking third-country processing to “first consult the embassy/consulate website for procedural steps.”
Navigating the visa application process is complex even in cases where a transfer is not necessary. LGBT immigrant visa applicants based on marriage to a same-sex spouse and similarly-situated K1 applicants who are afraid or unable to apply in their home country are well advised to consult with an experienced immigration attorney for case-specific guidance.
Conclusion
The April 12, 2018 Q&A between AILA and DOS provided useful information on a range of consular processing issues affecting many immigrant and nonimmigrant cases. As we noted in the introduction, the DOS’s statements do not constitute binding policy guidance. However, the answers are instructive for those navigating the consular processing system. To learn more about consular processing, see the main consular processing category on our site [see category]. We will provide updates on some of the important issues addressed in the Q&A as they become available. Those with case-specific questions should seek the counsel of an experienced immigration attorney.
