Monthly Archives: January 2012

Executive Order Aims to Speed Nonimmigrant Visa Processing

Nothing is yet being implemented, but there’s cause for hope that getting a tourist, student, or other nonimmigrant visa won’t be as slow a process as it has been since 9/11, based on a recent Executive Order by President Obama. (The order is called “Establishing Visa and Foreign Visitor Processing Goals and the Task Force on Travel and Competitiveness” and was issued on January 19, 2012.)

A lot of the order simply tells the relevant federal government agencies to come up with a plan, but it does contain some specific instructions to:

  • increase nonimmigrant visa processing capacity in China and Brazil by 40% over the coming year
  • ensure that 80% of nonimmigrant visa applicants are interviewed within three weeks of receipt of application, while still taking resource and security considerations into account
  • increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants, and
  • expand reciprocal recognition programs for expedited travel, such as the Global Entry program.

If it leads to real change, this will be good news for Chinese and Brazilian citizens in particular, who have faced waits of up to three months just to get a visa appointment.

But the Economist is doubtful whether the needed resources will truly be allocated in this direction, as described in its article, “Obama moves to simplify visa process.”

It Takes a Visa

I’ve seen an unusual amount of media awareness lately of  how people coming to the U.S. on temporary or permanent work visas can provide both a cultural and an economic boost to this country — and how (no one should be surprised here) tough those visas can be to get.

First, in the program/magazine for “The Wild Bride,” a hot-selling show at Berkeley Rep Theatre, there was a surprisingly long discussion of what it took, visa-wise, to bring the Kneehigh Theatre group “direct from England.”

The theatre’s general manager, Karen Racanelli, “worked several late nights, poring over substantial piles of federal paperwork.” (And that was with a lawyer’s help!)

The article goes on to describe how they applied for a P-1 visa for the on-stage ensemble, meant for internationally recognized entertainers; and a P-1S visa for their directors, designers, and assistants. Any or all of those visas could have been denied if U.S. Citizenship and Immigration Services (USCIS) hadn’t been convinced that the ensemble had received a truly international level of recognition, or that a particular individual was inadmissible. (Even performers of tabloid-level fame aren’t immune from being found inadmissible — see, for example, my article on “International Celebrities Denied U.S. Entry Visas.”)

Look how hard the USCIS regulations make it to qualify for this visa, by saying that the entertainment group must have been: “recognized internationally as being outstanding in the discipline for a sustained and substantial period of time,” and that each person applying for the visa must have “had a sustained and substantial relationship with the group (ordinarily for at least 1 year) and provide[] functions integral to the performance of the group.” Gulp. Even if it’s true, what a bother to prove. (By the way, the regs are at 8 C.F.R. Section 214(p).)

Lucky for us viewers, everyone got their visas — and a good thing, because as Karen also noted, “They need their whole team together to do what they do.”

That wasn’t all for recent media mentions of visas. Angela Woodall of the Oakland Tribune recently ran an article called, “Oakland Eyes Pay-to-Play Visa Program for Ballpark, New Coliseum.” The EB-5 visa is on center stage this time, offering, as it does, an opportunity for international investors to gain a green card through a U.S. business investment of at least $1 million (or $500,000 in an economically troubled area).

Given Oakland’s need for capital, city leaders are actively looking for foreign investment for some of its big projects.

Getting an EB-5 green card is not as easy as laying down the cash, however. As the article notes, the investor receives a “conditional” green card that runs out after the first two years — and can be converted to permanent U.S. residence only if the investor meets various conditions in terms of having actually sunk the money in and created ten new U.S. jobs. A surprising number of investors are denied at this stage, and have to leave their money, and their new U.S. home, behind. For details on this visa, see these articles on “Investment-Based (EB-5) Green Cards.”

Hopeful News for Immigrating Spouses of U.S. Citizens Stalled by the 3- and 10-Year Time Bars for Unlawful Presence

Nothing is final yet, but this is big news: At last, spouses and children of U.S. citizens who are living in the U.S. illegally and afraid to file for their green cards because they might, upon attending their interview at an overseas U.S. consulate, be barred from return by a three- or ten-year penalty for their past unlawful presence, may be given a way of reducing their risk.

U.S. Citizenship and Immigration Services (USCIS) is proposing a new system in which the intending immigrants will be able to apply for a waiver of inadmissibility — essentially, forgiveness of their unlawful presence — before, not after leaving the United States for their consular interview. If the waiver is granted, they can safely leave for their consular interview, knowing that if the consulate approves their immigrant visa, they can immediately return to the U.S. and become lawful permanent residents.

The main people that this change will help are undocumented immigrants who entered the U.S. without inspection and who have married U.S. citizens, or who are the children of U.S. citizens, over age 18 but under age 21 and unmarried. (If they’re under 18, they can’t accrue unlawful presence).

The proposed change won’t be big news to spouses and children of U.S. citizens who entered the U.S. legally. That’s because, as immediate relatives of U.S. citizens, they have been eligible to submit all their paperwork in the U.S. and “adjust status” to permanent residence all along, without ever having to set foot in a U.S. consulate. Even if they overstayed their entry visas and lived in the U.S. unlawfully, they were not punished for their unlawful presence in the U.S. — it was only the U.S. consulates that could enforce a penalty for unlawful presence.

By contrast, people who entered the U.S. without inspection (a visa, a visa waiver, or some other approval by an immigration officer) have no right to adjust status. (Rare exceptions exist, for people who had a visa petition or labor certification filed for them many years ago, and were grandfathered in under the old law called 245(i).)

Their only procedural choice is to have their green card application processed through a U.S. consulate. But that created a trap for them.  If, while they were over the age of 18, they accrued unlawful presence in the U.S., then their consular interview was the time when they could be punished by a time bar on returning to the United States. People who had accrued unlawful presence of 180 days (about six months) or more would face a three-year bar on return; those who had accrued unlawful presence of one year or more would face a ten-year bar on return.

There was, and still is, a waiver of these time bars available, to applicants who could prove that their U.S. citizen spouse or parent would face extreme hardship if the applicant were denied the immigrant visa. But family separation alone — however heart-wrenching — wasn’t considered “extreme hardship.” And without a sense of whether the waiver would be granted by the U.S. consulate, many people were afraid to take their chances. Having the waiver decision made before departure will, if USCIS successfully implements this, be a huge source of reassurance.

What if the waiver is refused — will the immigration authorities come after the person, now knowing that he or she lives in the U.S. illegally? All indications are that they will only do so in high-priority cases, such as where the applicant has a criminal record. For details on this and other aspects of the proposed new policy, see the USCIS website at www.uscis.gov; in particular, the fact sheet called ” USCIS to Propose Changing the Process for Certain Waivers.”

In the meantime, if you’ve been waiting to apply for a green card, now would be a good time to file the visa petition that starts the process, on USCIS Form I-130. That’s especially true if you have children who might turn 21 within the next couple of years, after which time they will no longer be helped by this rule. But remember, this new policy isn’t in place yet. Consult an immigration attorney for the latest news and an analysis of your prospects for getting a waiver before doing anything further — and especially before leaving the United States.

A final note to immigrants whose petitioner is a lawful permanent resident: The new policy is unfortunately not designed to help you. Look into whether your petitioner can apply for U.S. citizenship as soon as eligible.

GOP Candidates’ Stands on Immigration

The Iowa Republican presidential caucus is mere hours away — and the various candidates have all expressed views on (if not always practical solutions to) immigration matters.

Some choice quotes range from Mitt Romney’s “As President, [I] will also work to establish a policy that staples a green card to the diploma of every eligible student visa holder who graduates from one of our universities with an advanced degree in math, science, or engineering,” to Michelle Bachmann’s “I can’t speak highly enough for Arizona.”

By the way, I’m sure Romney was speaking metaphorically, but I can’t help note that the idea of having a green card automatically “stapled” to anyone’s diploma would make this the easiest application process in the whole immigration system. More likely the actual process would involve stacks of forms, and weeks or months of waiting for the bureaucratic gears to move.

And Michelle, a grammar tip: That should be “highly enough of.” Not “for,” but “of.”

For a detailed rundown of these various candidates’ views and statements on immigration, see the 2012 GOP Presidential Candidates page of the Think Progress website.