Introduction

On October 18, 2018, the U.S. Department of State (DOS) answered questions from the American Immigration Lawyers Association’s (AILA’s) State Department Liaison Committee. Although the answers provided by the DOS do not constitute binding policy, they nevertheless help elucidate many important issues involving the DOS’s role in the immigration system and its current policies. In this post, we will review the most interesting questions and answers from the October 18 meeting. We have uploaded the entire question and answer for those who are interested in following along with our article or reading the whole thing for themselves [PDF version].

The “Travel Ban”

The first topic covered in the question and answer was the so-called “travel ban” against nationals of certain countries set forth in President Donald Trump’s Presidential Proclamation 9645. We discuss the Proclamation in detail in our full article on the subject [see article]. The Proclamation is in effect in full force after the Supreme Court of the United States ruled in favor of the Trump Administration against several legal challenges to the entry restrictions. We discuss the Supreme Court decision in Trump v. Hawaii in detail in our full article on that subject [see article].

The DOS confirmed that the following classes of individuals who would be otherwise subject to entry restrictions are exempted from the entry restrictions in Proclamation 9645:

Individuals who were physically present in the United States as nonimmigrants on the applicable effective date for their nationality and who subsequently depart the United States and apply for a nonimmigrant visa in a different category or an immigrant visa;
Individuals who were physically present in the United States on the applicable effective date for their nationality and who subsequently apply for a visa in any visa classification; and
Individuals who were in possession of a valid visa on the applicable effective date but who were not present in the United States on such date, and who subsequently apply for a different nonimmigrant visa or immigrant visa; and
Individuals whose visas were cancelled or revoked under Executive Order 13769 who apply for a new or different nonimmigrant visa or immigrant visa.

However, the DOS noted that individuals who were not in the United States on the applicable effective date but who were issued a visa during the period in which the government was enjoined from enforcing the entry restrictions of Proclamation 9645 would not be covered by an exception from the entry restrictions. These individuals would need to obtain a waiver from the entry restrictions in order to be eligible for a nonimmigrant or immigrant visa.

Individuals who are subject to the entry restrictions in Proclamation 9645 must first be granted a waiver in order to have a nonimmigrant or immigrant visa application approved by the DOS. The DOS has published some of its guidance on consideration of waiver requests at 9 FAM 302.14-10(D) and (E) (however, note that the guidance has substantial redactions). The DOS may only grant a waiver if:

The denial of entry would cause undue hardship to the applicant;
His or her entry does not pose a threat to the national security or public safety of the United States; and
His or her entry would be in the national interest.

The FAM also lists other cases in which waivers, depending on the particular facts, may be appropriate:

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The DOS answered various other questions about the Proclamation 9645 waiver provision.

There is no form for applying for a waiver from the Proclamation 9645 entry restrictions. However, the DOS explained that an applicant will have the opportunity to explain why he or she qualifies for a Proclamation 9645 waiver during the visa interview. Furthermore, at most posts, applicants will be allowed to present documentation supporting their case for a waiver at the interview. On the documentation point, however, the DOS cautioned that policies at individual posts may vary. Consular officers are not required to accept any additional documents regarding a waiver application. Processing times for considering waiver requests vary from case to case.

As of September 30, 2018, the DOS had cleared 1,836 visa applicants for waivers of the entry restrictions.

AILA noted that a different section of the FAM states that there is no waiver of section 212(f) inadmissibility. It asked the DOS if the new guidance on waivers of Proclamation 9645, which itself invokes section 212(f), will lead to an update of the older FAM language. The DOS clarified that there are no plans to update the older section 212(f) language in the FAM because the waiver guidance is particular to the entry restrictions in Proclamation 9645 — which provides for the granting of a waiver – only.

Public Charge

AILA asked various questions about public charge in light of changes made to the FAM in January 2018. It is important to note that these questions do not concern the proposed changes to the public charge rules that were made public more recently [see blog].

The DOS confirmed that a joint sponsor does not have to be related to the petitioning sponsor or the intending immigrant. “The joint sponsor can be a friend of third party who is not necessarily financially connected to the sponsor’s household.” However, in all joint sponsor cases, the DOS must consider the likelihood that the sponsor will support the applicant, the sponsor’s motives for doing so, the sponsor’s relationship to the applicant, the length of time that the sponsor and applicant have known each other, and the sponsor’s overall financial situation.

If the consular officer determines that there is enough information to determine that the applicant is likely to become a public charge, the visa will likely be refused under section 212(a)(4) of the Immigration and Nationality Act (INA). If the applicant appears to have overcome the presumption of public charge but there is some sort of documentary deficiency (e.g., “if a Form I-864 is submitted without a copy of the latest Federal income tax return prior to the signing of the Form I-864”), the visa may be refused under section 221(g) instead.

The AILA noted confusing language in the Form I-864 FAQ section of the DOS website. This section states that when the sponsor establishes U.S. domicile, he or she must return to the United States to live before the sponsored immigrant may enter the United States. Simultaneously, the FAQ states that the sponsored immigrant may enter the United States with the sponsor as well as after the sponsor. AILA added that the FAQ’s statement that the sponsor must enter the United States before the sponsored immigrant is inconsistent with 9 FAM 302.8-2(C)(5)(b), which reads as follows: “The sponsor does not have to precede the applicant to the United States but, if he or she does not do so, he or she must at least arrive in the United States concurrently with the applicant.” The DOS confirmed that the FAM language reflects current policy, and that where the sponsor meets the domicile requirement by establishing that he or she intends to establish his or her domicile in the United States no later than the date of the applicant’s admission, the sponsor may arrive in the United States concurrently with the applicant.

Prudential Revocation Based on DUI

We discuss prudential visa revocations based on DUIs from a previous DOS/AILA liaison meeting in a full article on site [see article].

Here, the DOS explained that it generally makes prudential visa revocations for DUIs effective upon the departure of the individual from the United States. It added that it works with the Department of Homeland Security (DHS) to ensure that the DHS is aware when prudential visa revocations become effective.

E1 and E2 Nonimmigrant Visa Updates for New Zealand

On August 1, 2018, President Trump signed into law S.2245, the “Knowledgeable Innovators and Worth Investors Act or the KIWI Act.” The KIWI Act makes New Zealand nationals eligible to enter the United States as E1 treaty traders or E2 treaty investors, provided that New Zealand grants reciprocal treatment to U.S. nationals. The DOS is working with New Zealand on laying the groundwork to begin implementing reciprocal trader and investor visa programs. The DOS stated that it is too soon to provide a timeframe for when New Zealand nationals will be eligible to apply for E1 and E2 visas. Please see our article for further updates [see article].

Situation for E2 Nonimmigrants from Ecuador

As of May 18, 2018, Ecuador terminated its investment treaty with the United States. At footnote 14 to 9 FAM 402.9-10, the DOS states that “Ecuadorian nationals with qualifying investments in place in the United States by May 18, 2018 continue to be entitled to E2 classification until May 18, 2028.”

The DOS clarified that an Ecuadoran enterprise that was “in the process of investing,” as defined in 9 FAM 402.9-6(B) (d) and (e) as of May 18, 2018, may qualify for E2 visas until May 18, 2018.

An Ecuadoran enterprise that was established and operating as of May 18, 2018, may demonstrate eligibility for E2 classification even if the investor had not yet applied for an E2 visa, provided that the investments were established or acquired prior to May 18, 2018.

Ecuadoran E2 visa applications that were pending on May 18, 2018, may be approved “[o]nly if the national that applied for the visa is coming to the United States to engage in E2 activity in continuance of investments established or acquired prior to May 18, 2018.”

“Key Ecuadoran employees” may continue to qualify for E2 visas based on qualifying investments in place as of May 18, 2018, provided that they otherwise meet the E2 visa requirements.

E1 and E2 Visa Processing

AILA expressed concerns about the great variance on the E1 and E2 visa application process at different consular posts. However, the DOS stated that it was not considering a universal standard for E1 and E2 document submission “[b]ecause of challenges encountered by posts on a number of fronts…”

Visa Application Payments in Mexico

AILA followed up on concerns it had expressed in 2017 about difficulties faced by nonimmigrant visa applicants in Mexico in paying fees associated with their applications filed with Mission Mexico.

In response, the DOS reiterated its current policy for nonimmigrant visa application fees in Mexico. Credit card payments are only possible in Mexico for applicants for H2 and K visas. All other nonimmigrant visa applicants “can pay their … fees in cash at one of the 2,078 fee collection locations across Mexico.”

Conclusion

This article summarizes just some of the most interesting questions and answers from the DOS/AILA question and answer session from October 18, 2018. Those who are interested in seeing all of the questions and answers should consult the original document. To learn more about consular processing, please see our growing selection of articles on the subject [see category]. You may learn more about other topics related to those discussed in this article by visiting our website’s sections on family immigration [see category], investment immigration [see category], and work visas [see category].