Will U.S. Immigration Services Offer Special Relief to Permanent Residents Who Return to the United States After Being Abroad for More Than One Year Due to the COVID-19 Pandemic?

 

The U.S. Customs and Border Protection Agency (“CBP”) has not announced any special relief to a lawful permanent resident (“LPR”) who has remained outside the United States for more than one year because of COVID-19 travel and movement restrictions. Currently, an LPR who was remained outside the United States irrespective of his or her reason for doing so are presumed to have abandoned immigrant status and an interviewing CBP officer may determine that he or she is not admissible for admission into the United States upon arrival at the Port of Entry (“POE.”). An LPR who has remained outside the United States for more than one year may either seek relief by applying for an SB-1 Returning Resident Visa at a U.S. Embassy or Consulate or may travel to the United States and request entry provided his or her Form I-551 (“green card”) has not expired. An LPR who chooses the latter option may have an increased risk of being sent into secondary inspection upon arrival at an air, land, or sea Port of Entry.

If CBP determines that the arriving LPR is not a “returning resident” because he or she has been outside the United States for more than one year, he or she may be deemed to be an “arriving alien” and may be charged as removable from the United States. Upon making such a charge, he or she has the right to request a temporary admission and to be scheduled for a hearing before an immigration judge.

A CBP officer may attempt to convince an LPR to sign a Form I-407 because of prolonged absence from the United States of more than one year. Upon signing a I-407, CBP will also attempt to have him or her returned to his or her original destination. Before signing a I-407, an LPR should note the following:

  • An LPR cannot lose his or her status solely because of time spent abroad;
  • An LPR remains an LPR unless the government proves abandonment by clear, unequivocal and convincing evidence and a final order of removal is issued by an immigration judge;
  • Form I-407 must be signed voluntarily. An LPR may refuse to sign an I-407 without any negative consequences;
  • An LPR cannot be forced to return to his or her original destination.

To avoid future travel delays caused by the COVID-19 pandemic, an LPR who is currently residing in Asia should consult with one of our U.S. immigration attorney in Ho Chi Minh City, Manila and Taipei who can advise how he or she can safely travel internationally and maintain his or her LPR status.

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

DHS to Introduce New Rule Holding Immigrant Sponsors Accountable for Failing to Meet Contractual Obligations

 

The United States Department of Homeland Security (“DHS”) has introduced a rule that would hold immigrant sponsors accountable for failing to meet contractual obligations that they enter when sponsoring a foreign national for an immigrant visa. The new rule comes after the United States Court of Appeals for the Second Circuit issued a decision (web site) allowing DHS to resume implementing nationwide public charge inadmissibility following an earlier ruling by a federal judge temporarily blocking DHS from implementing public charge findings (see this article).

The proposed rule would require American citizens and lawful permanent residents who sponsor an immigrant through an I-864 Affidavit of Support or a I-864EZ to provide credit reports and credit scores, certified copies of income tax returns for the last three years, and bank account information to demonstrate that they can maintain the required income to support the immigrant if necessary.

In addition, the new rule would require any petitioning sponsor that has received certain public benefits (see this article) within the last 36 months of submitting an I-864 or has defaulted on previous obligations to support a sponsored immigrant must be backed by a joint sponsor who has not received public benefits during the same time period of time.

For more information on the proposed rule and its effect on immigrant visa applicants in Asia, contact us today at info@enterimmi.com and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only

Federal Court to Allow Public Charge Inadmissibility to Resume

 

The United States Court of Appeals for the Second Circuit lifted an injunction issued by a federal judge allowing the Department of Homeland Security (“DHS”) to resume public charge inadmissibility [see this article and this article].

The most recent ruling has been part of intense ongoing litigation since DHS, under the direction of the Trump Administration, started to dramatically expand the definition of “public charge”. Just days before the rule was scheduled to take effect in October 2019, a nationwide preliminary injunction was issued. Earlier this year, the United States Supreme Court upheld the rule allowing it to take effect before the rule was subjected to another preliminary injunction due to the COVID-19 pandemic.

For more information on whether intending immigrants in Asia and their petitioning sponsor can be considered a public charge, contact us today at info@enterimmi.com and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only

Announcement – New Increased USCIS Filing Fees for EB-5 Investors

 

Update: Between the writing and publication of this article, a federal judge granted a motion for a preliminary injunction against the U.S. Citizenship and Immigration Services (USCIS) fee rule discussed herein.  As long as this preliminary injunction is in place, the existing fees remain as before.

Effective October 2, 2020, all EB-5 investors will need to pay more to file Form I-526 Petitions and Form I-829 Petitions pursuant to a proposed rule by the United States Citizenship and Immigration Services (“USCIS”). The increase to the petitions in the EB-5 visa category is part of a comprehensive increase to petitions, applications and other benefits proposed by USCIS in August 2020.

The new fee for the I-526 Immigrant Petition by Alien Investor will rise to $4,010 from the previous fee of $3,675.

The new fee for the I-829 Petition by Investor to Remove Conditions on Permanent Residence Status will rise to $3,900 from the previous fee of $3,750.

All petitions postmarked on or after October 2, 2020 must include the new increased fees as established by the final USCIS fee rule.

According to USCIS, the increased fees are a result of increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners and beneficiaries. The rule also supports payroll, technology and operations to accomplish the USCIS mission.

EB-5 stakeholders such as the American Immigration Lawyers Association (“AILA”) and the American Immigration Council (“AIC”) submitted comments in response to the proposed rule. In a joint statement submitted to USCIS, AILA and AIC opposed the proposed fee increases noting that if implemented as written, the proposed rule would require customers to pay increased fees for decreased services.  In recent years, USCIS case processing has slowed dramatically, due in significant part to the agency’s own inefficient policies, especially in the EB-5 visa category.  Currently, USCIS reports adjudication times for I-526 petitions at 37 to 73.5 months and I-829 petitions at 28.5 to 51.5 months.

Two lawsuits have been filed against the USCIS challenging key components of the final rule and requesting a preliminary injunction enjoining (stopping) implementation of the rule.  If the implementation of the fee rule is enjoined, it is likely that USCIS will be required to continue to use its current fee schedule and accept current versions of all forms.  However, if the court does not grant the injunction, EB-5 investors must be prepared to file petitions consistent with the new fee rule.

For more information on the fee increases in the EB-5 visa category or any other visa category fee increase, contact us today at info@enterimmi.com and speak with one of our U.S. immigration attorneys in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of Enterline and Partners only.

USCIS Extends Flexibility for Responding to Agency Requests

 

The U.S. Citizenship and Immigration Services (“USCIS”) is extending the time within which to reply to certain notices and requests that is originally announced on March 30, 2020.

The extension applies to any stakeholder that is responding to the following:

  • Requests for Evidence;
  • Continuations to Request Evidence (N-14);
  • Notices of Intent to Deny;
  • Notices of Intent to Revoke;
  • Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers;
  • Filing date requirements for Form I-290B, Notice of Appeal or Motion; among others.

This extended time applies if the issuance date listed on the request, notice, or decision is between March 1, 2020, and January 1, 2021, inclusive.

The USCIS will consider a response to the above requests and notices received within 60 calendar days after the response due date set in the request or notice before taking any action and will suspend action on certain requests, notices or decision until after this 60 calendar days has passed.

Enterline Immigration and U.S. immigration lawyers can help applicants across Asia through one of our offices in Ho Chi Minh City, Manila and Taipei and are happy to assist you with any RFEs or NOIDs you might receive. Contact us at: info@enterimmi.com

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

What Could Happen to My Green Card if I am Outside the United States for More than 180 Days Due to COVID-19 Travel Restrictions?

 

There are many reasons why a lawful permanent resident (“LPR”) would remain outside the United States for more than 180 days. However, staying outside the U.S. for a long period could result in the U.S. government taking the position that an LPR has abandon his or her intent to live in the U.S. as a permanent resident and it could take steps to revoke the LPRs resident status.

With the ongoing COVID-19 pandemic causing movement and travel restrictions, many LPR’s have unfortunately been unable to travel to the U.S. and have been abroad for a prolonged period.  While the COVID-19 pandemic could certainly be viewed as an unforeseen and exceptional circumstance and thus, the LPR has not abandoned his or her immigrant status, the U.S. Customs and Border Protection Agency (“CBP”) maintains independent discretion in making such determination especially in situations where an LPR shows frequent and prolonged travel outside the United States.

An LPR who has been outside the United States may be subjected to secondary inspection by a CBP officer upon his or her arrival at the Port of Entry (“POE”) by land, sea or air. An LPR who has been outside for a prolonged period of time such as more than 180 days has an increased possibility of being subjected to secondary inspection.

Upon arrival at the POE, LPRs may be asked by an interviewing CBP officer to what countries they traveled, how long they have been away, and the reasons why they were traveling to that destination. If a CBP officer is concerned that an LPR’s prolonged absence outside the United States is unusual or suspicious, the CBP officer may request that the LPR undergo secondary inspection.

When an LPR enters secondary inspection, they may be detained for a few minutes to several hours or longer. During the process, a CBP officer will ask the incoming LPR additional questions to determine resident intent before they will be allowed to be admitted to the United States. Additional questions during secondary inspection will delve deeper into why the LPR has remained outside the United States for a long period, whether they are working abroad, and their family and financial ties to the United States.

It is important for an LPR to understand that he or she has the right to be allowed entry and cannot be forced to sign any documents giving up resident status or being forced to return to his or her destination.  See our other article for more information on Knowing your Rights as an LPR.

For more information on LPR’s who are currently in Asia who have been unable to travel back to the United States due to the COVID-19 pandemic, contact us today at info@enterimmi.com and speak with an U.S. immigration lawyer in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

DHS Proposes New Rule Fixing Admission Periods to F and J Visa Holders

 

The United States Department of Homeland Security (“DHS”) has announced a proposed rule that would require a fixed period of stay for international students on F student visas and exchange visitors on J visas. Under the proposed rule, the DHS framework that currently allows foreign nationals on F and J visas to remain in the United States as long as they comply with the terms of admission would be removed and would be subjected to an end date not to exceed four years. Foreign nationals from countries associated with high visa overstay rates (greater than 10 percent for student and exchange visa holders) would be limited to a two-year fixed period of stay.

The proposed measure is being made to deter immigration violations and incentivize timely departures. According to DHS Deputy Secretary Ken Cuccinelli, “this effort would create a fixed period of admission for certain aliens, consistent with most other temporary visa classifications, while still allowing these aliens an opportunity to legally extend their stay or re-apply for admission where appropriate. Amending the relevant regulations is critical in improving oversight mechanisms; preventing foreign adversaries from exploiting the country’s educational environment; and properly enforcing and strengthening U.S. immigration laws.”

The DHS notes that while lawfully present F and J visa holders who were admitted for the duration of their studies or stay will automatically have their stay extended up to the program date, not to exceed four years ,once the final rule is effective, DHS may look to additional factors to trigger a two year period of authorized admission such as: the foreign national’s birth or citizenship from a country on the State Department list of State Sponsored Terrorism; whether a school or program sponsor is an E-Verify participant in good standing; and for F student visa holders, whether a school is accredited by an accrediting agency recognized by the United States Department of Education.

For more information on DHS’s proposed policy, contact us today at info@enterimmi.com and arrange to speak with a U.S. immigration lawyer in Ho Chi Minh City, Manila and Taipei.

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only

Update on Visa Chargeability for Hong Kong persons from the President’s Executive Order

 

Since the President’s July 14, 2020 Executive Order on Hong Kong Normalization there has been much concern and confusion about whether and how the Executive Order impacts persons born in Hong Kong. The issue is whether the Executive Order makes individuals born in Hong Kong subject to visa chargeability of mainland born Chinese.  If the Executive Order does indeed have this effect, it would cause many visa applicants born in Hong Kong to have to wait many years for visas to become available.

At the American Immigration Lawyers Association (“AILA”) 2020 Annual Conference in mid-July, the Department of State (“DOS”) Visa Office indicated in a DOS Open Forum that it is still reviewing the implications of the Executive Order on Hong Kong and its impact on visa chargeability, but noted that Hong Kong’s status is derived from the 1990 Immigration Act.  Under §103 of the 1990 Immigration Act, Hong Kong is treated as separate from Mainland China for purposes of the number of immigrant visas available.  The DOS emphasized that if that legislation remains in place, Hong Kong born individuals should continue to be counted in accordance with the existing statute and not have to wait for visas availability with mainland born Chinese.

It is important to note that the guidance provided during the DOS Open Forum is not considered official State Department guidance. The State Department has not yet provided any official statement to the public about the agency’s interpretation.

If you are an individual born in Hong Kong and have an approved or pending immigrant visa petition, contact one of our U.S. immigration lawyers in Ho Chi Minh City, Manila or Taipei if you have further questions about your eligibility to apply for your visa.

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

Announcement – Important Notice for K visa applicants affected by COVID-19

 

Effective August 28th, as it becomes safe to resume more consular operations at each U.S. mission, posts are authorized to give K visa cases high priority.  Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on what services that post is currently able to offer. The I-129F Petition for Alien Fiancé(e) is typically valid for four months; however, consular officers may revalidate the I-129F petition in four-month increments.  For most cases impacted by the suspension of routine visa services or COVID-19 travel restrictions it will not be necessary to file a new I-129F petition.

For more information, contact one of our U.S. immigration lawyers in Asia at info@enterimmi.com.

 

Copyright 2020. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of the Enterline Immigration only.

David Enterline was recently interviewed about the EB-5 immigrant investor program

 

David Enterline was recently interviewed by Ms. Jenny Nguyen of American Lending Center about the United States EB-5 immigrant investor program. Some of the topics discussed were how President Trump’s 60-day immigration ban does not impact EB-5 investors, new changes on how the United States Immigration and Citizenship Services (“USCIS”) will process I-526 Petitions, and why this change might actually help the children of Vietnamese and Chinese investors from “aging-out” – no longer be eligible to immigrate because their immigration age exceeds 21 years old.

Visit here to view the interview.

If you have any questions about the EB-5 immigrant investor visa, please contact us today at info@enterimmi.com and speak with one of our U.S. immigration lawyers in Ho Chi Minh City, Manila and Taipei.