What medical conditions would cause you to be denied an immigrant visa?

 

Part 1 – a communicable disease of public health significance

This is a common question we are asked.  This Part 1 of a series discusses what medical conditions might cause a person to be denied an immigrant visa.

The United States Immigration and Naturalization Act (the “Act”), Section 212(a)(1) proscribes two classes of conditions which would render a person ineligible for an immigrant visa and inadmissible to the United States.  Class A conditions are: (i) a communicable disease of public health significance; (ii) failure to present documentation of having received required vaccinations; (iii) having a present or past physical or mental disorder or disability serious enough that might result in harmful behavior; and (iv) drug abuse or addiction.

For communicable diseases of public health significance, there are several medical conditions which are specifically listed as grounds for ineligibility. These are Hansen’s disease (infectious leprosy), infectious syphilis and active Tuberculosis.   If an intending immigrant has one of these conditions, he or she is probably ineligible to immigrate to the United States.   Moreover, there are certain diseases which may be added from time to time by Presidential Executive Order, the Director of the Center for Disease Control, and diseases of public health emergency and identified by the World Health Organization.  These can arise when a disease reaches such a level as to be of concern to the health and safety of the United States.

Many people believe that if an immigrant has HIV (Human Immunodeficiency Virus), the virus that causes AIDS, then they will also be ineligible.  In the past, HIV was a Class A disease, but this was removed from the list in 2009.

If you think you may have a medical condition which might cause you to be ineligible for an immigrant visa to the United States, then contact us at Enterline Immigration Consulting Ltd.  Maybe we can help.

For more information, contact us:

Email: info@enterimmi.com

Tel: 02-2521-9398

David Enterline of Enterline Immigration Consultants is speaking at the Investment Immigration Summit in Ho Chi Min City Vietnam on April 9, 2019

 

David will speak on “Alternative residency and investment pathways to the US – beyond EB-5” and will introduce the E-2 and L-1 visa categories and their requirements and which visas are useful for an investor or business person’s needs.

For more information about this event, please contact us at info@enterimmi.com.

We have helped Chinese investors who are Grenadian citizens quickly and successfully obtain E-2 visas. Let us help you!

 

David Enterline, of counsel at Taipei Commercial Law Firm, has successfully obtained an E-2 visas for a Chinese investor who became a Grenadian citizen via the Grenadian Citizenship by Investment (CBI) program, joining only a handful of U.S. attorneys who have done so.

Grenada is one of the score of countries that offer CBI programs, but is special because of its unique status of having a treaty of commerce with the United States that allows for its citizens to apply for E-1 Treaty Trader and E-2 Treaty Investor visas.   In that last few years, many Chinese nationals have considered alternatives to the U.S. EB-5 immigrant investor visa because of the long wait for the EB-5 visa.  Obtaining Grenadian citizenship and setting up a qualifying business in the U.S. will allow the Chinese-Grenadian citizen and qualifying family members to enter the U.S. in 4-6 months.

EB-5 visa for Chinese investors – 15-year wait

There is currently an estimated 15-year visa wait for Chinese investors who now (in 2018) begin the process to obtain an EB-5 visa. Although EB-5 has been very popular over the last 10 years in China, many investors and their families are unwilling to wait so long to obtain a “green card” to live, study and work in the United States.

E-2 Through Grenada Citizenship – Quick and Fast

Chinese citizens can become Grenadian citizens in 4-6 months. The most hassle-free option for citizenship is by “donation”, which requires $200,000 (+ costs) for families of up to four persons.

E-2 Visa – Quick and Fast, Live and Work in the U.S. … Indefinitely

Once a Chinese investor is a Grenadian citizen, he or she can apply for an E-2 visa. After choosing and making an qualifying investment, the E-2 visa can be obtained very fast, sometimes in as little as 2 weeks.  Interviews can be conducted as U.S. Consular Offices in Beijing, Shanghai, or Guangzhou, and approvals are made directly at the end of the interview.

The E-2 visa is initially valid for 5 years and covers spouses and all family members under 21.  While the E-2 visa is a non-immigrant visa (no “green card”), it can be renewed indefinitely, for as long as the eligible business is operating.

Please contact us for more information.

info@Enterimmi.com

carol@EnterImmi.com

stanley@EnterImmi.com

How to Apply for Naturalization if your American Spouse is Stationed Abroad

 

Spouses of U.S. citizens are generally eligible for lawful permanent residence and “green cards” and eventually U.S. citizenship based on their marriage. In general, a person may only be naturalized after showing that they have resided in the United States as a lawful permanent resident for a certain prescribed period of time. However, what about foreign nationals who are married to an American citizen but that American citizen spouse is living overseas for employment reasons?

To address this situation, Section 319(b) of the Immigration and Nationality Act (INA) provides for an exception to the residency requirement for a foreign spouse married to a U.S. citizen provided that the U.S. citizen is “regularly stationed abroad” pursuant to qualifying employment. A qualifying employment abroad means that the American spouse must be stationed abroad for at least one year under an employment contract or order in any of the following entities or positions:

  • Government of the United States (including the U.S. armed forces)
  • American institution of research recognized by the Attorney General;
  • American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States or a subsidiary thereof;
  • Public international organization in which the United States participates by treaty or statute;
  • Authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States; or
  • Engaged solely as a missionary by a religious denomination or by an interdenominational organization having a bona fide organization within the United States.

To qualify for naturalization under Act 319(B) of the INA, the foreign spouse must establish that he or she meets the following criteria:

  • 18 years or older at the time of filing;
  • A lawful permanent resident at the time of filing the naturalization application;
  • Continue to be the spouse of the U.S. citizen regularly stationed abroad in qualifying employment for at least one year;
  • Married to a U.S. citizen regularly stationed abroad in qualifying employment for at least a year;
  • Has a good faith intent to reside abroad with the U.S. citizen spouse upon naturalization and to reside in the United States immediately upon the citizen’s termination of employment abroad;
  • Establish that he or she will depart to join the citizen spouse within 30 to 45 days after the date of naturalization;
  • Understanding of basic English, including the ability to read, write and speak;
  • Knowledge of basic U.S. history and government;
  • Demonstrate good moral character for at least three years prior to filing the application until the time of naturalization
  • Attachment to the principles of the U.S. Constitution and well-disposed to the good order and happiness of the U.S. during all relevant period under the law.

If you are a foreign spouse of an American citizen who is regularly stationed abroad or would simply like to know more about the topic, you may contact us for more information on the procedures for availing yourself of the residency exemption discussed above.

USCIS Adjudicator’s Discretion Restored in Denying Applications, Petitions and Requests without Issuing RFE’s or NOIDS

 

In a new policy memorandum issued by the United States Citizenship and Immigration Services (USCIS) last July 13, 2018, USCIS adjudicators are given discretion to deny applications, petitions, or requests without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the initial evidence is not submitted or if the evidence in the record does not establish eligibility. The policy is to take effect on September 11, 2018 and applies to all applications, petitions, and requests received after said date.

The new policy memorandum departs from (and rescinds) a policy memorandum from June 3, 2013 which stated that adjudicators should issue an RFE unless there was “no possibility” that the deficiency in the application, petition, or request could be cured by the submission of additional evidence. Under the June 3, 2013 memorandum, denials issued without an RFE or a NOID were only issued for statutory denials such as if the applicant, petitioner or requestor has no legal basis for the benefit that they are applying, petitioning, or requesting for or if the benefit or relief requested is under a program that has been terminated.

With the rescission of the “no possibility” policy, the memorandum means that, aside from statutory denials, USCIS may also deny applications, petitions and requests without issuing an RFE or a NOID if not all the required evidence is submitted with the benefit request. Said denial will be based on lack of required initial evidence. Examples of cases where there may be a denial without issuing an RFE or a NOID include, but are not limited to:

  • Waiver applications submitted with little to no supporting evidence; or
  • Cases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission. For example, family-based or employment-based categories where an Affidavit of Support (Form I-864), if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).

The policy is intended to discourage frivolous or substantially incomplete filings and to encourage applicants, petitioners, and requestors for U.S. visas for overseas education and green cards to be diligent in collecting and submitting required evidence.

Changes in the Accrual of Unlawful Status for foreign students in the United States

 

On May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) proposed changes in the calculation of unlawful presence for students currently studying in the United States on an F-1, J-1 and M-1 visa. The proposed changes are a result of President Donald Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States and is set to take effect on August 9, 2018.

The changes will fix specific times when foreign students in the U.S. in F, J and M visa status start to accrue unlawful presence.

Under the policy memorandum, unlawful presence will be calculated as follows:

1. Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

a. The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
b.The day after their I-94 expired; or
c.The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

2. Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

a. The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
b. The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
c. The day after the I-94 expires; or
d. The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

The amount of time of unlawful presence of an F-1 visa holder also carries with it different penalties. Foreign students who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bar to admission, depending on how much unlawful presence they accrued before they departed the United States.

Those foreign students studying in the U.S. or hoping to study in the U.S. must take extra care to leave the U.S. as soon as their valid status ends to avoid the accrual of unlawful presence.

Changes in Immigration Policy

 

A series of small moves concerning the Trump Administration’s immigration policy have recently been undertaken.

CNN reports the following actions made by the administration:

  • Attorney General Jeff Sessions has issued a Decision directing the Board of Immigration Appeals (BIA) to refer cases for his review when such cases have issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated. Under this Decision, the BIA’s decisions on the matter are automatically stayed pending the Attorney General’s review.
  • The Commerce Department announced that it will include on the 2020 Census a question about U.S. citizenship.
  • Immigration and Customs Enforcement (ICE) announced a new directive wherein immigration officers will no longer automatically release pregnant women from immigration custody but will instead require a case-by-case evaluation.
  • The State Department proposed that visas applicants and alien registration be required to submit five years of identifiers for certain social media platforms. Previously, visa applicants were required to submit prior telephone numbers, email addresses, and international travel.
  • Department of Homeland Security (DHS) confirmed that the White House is reviewing a proposal requiring immigration caseworkers to consider a wider range of factors to determine whether an applicant is likely to become dependent on public assistance. The proposal seeks to expand the term “public charge” as used in the Immigration and Nationality Act and to define the types of public benefits that are considered in the determinations. U.S. Law authorizes the rejection of immigrants if they are likely to become a “public charge.”
  • The Department of Justice and the City of West Spring Palm Beach announced that it has reached an agreement regarding West Palm Beach’s Resolution Number 112-17. The City agreed to issue a memorandum stating its position that its local laws do not restrict information sharing with the DHS.

Immigration lawyers say that the greater scrutiny of visa applications have slowed down the process and have set the bar higher for long standing categories of visas.

Actions to Take When a Client’s I-526 Petition Enters Processing Limbo

 

EB-5 investors and projects continue to contend with lengthy delays in the processing of I-526 Petitions. Average processing times have steadily increased over the past few years, in stark contrast to USCIS new IPO statements that it would reverse the trend and achieve I-526 processing times of six months.

As of November 30, 2015, the average processing time for I-526s was 15.5 months. In addition, as U.S. immigration lawyers with a robust EB-5 practice can attest, many I-526s are not adjudicated within this time frame, especially when the relevant project does not have a previous I-526 approval. It is, after all, an “average” posted processing time.

For cases that appear to be entering processing limbo, what are some of the options available to prompt USCIS to act?

0 Days Beyond Posted Processing Time – Remain Patient, Refrain from Contacting USCIS

It is generally not productive to contact USCIS about an I-526 Petition before it has reached or exceeded the posted processing time. We respect USCIS’s request not to do so before that time. Hopefully the I-526 will be approved before the outer limit of the processing time frame is reached; but for clients inquiring about perceived delays, remind them of the current processing time and advise patience.

1+ Days Beyond Posted Processing Time – Email USCIS (USCIS.immigrantinvestorprogram@uscis.dhs.gov)

If a client’s I-526 is beyond the average processing time and has still not been adjudicated, email USCIS regarding the delay. This provides written notice to USCIS of delay beyond the posted processing time and alerts it to potential administrative errors in the routing and placement of the petition package. Several years ago, such an email would usually result in some action within a short period of time. These days, multiple follow ups are commonly needed. We recommend following up again every 30 days after the initial email.

Standard responses from USCIS to email inquiries include language such as:

“This email is to notify you that receipt WAC1490XXXXXX is currently assigned to a USCIS Officer. We appreciate your patience as we work on your case.

While our processing times currently are beyond what we would like, USCIS has taken steps to increase capacity and is striving to ensure our commitment to our customers is being met.

As a reminder, you may check the status of your pending Form I-526 at any time through My Case Status.”

And to additional follow ups:

“There is no additional update to provide at this time. Please know that we are avidly working to reduce processing times.

Please click on “IPO Processing Dates” on the USCIS Processing Time Information page for the current Form I-526 processing time.

As a reminder, you may check the status of your pending Form I-526 at any time through My Case Status. ”

We have noticed that USCIS has been more creative in its boilerplate responses although the message remains the same: “just wait”.

60+ Days Beyond Posted Processing Time – Contact DHS Ombudsman’s Office (www.dhs.gov/case-assistance)

Submit Form DHS-7001 through the DHS “Ombudsman Case Assistance Online”. As its webpage states: “The Ombudsman provides an impartial and independent perspective to USCIS in an attempt to resolve problems with pending cases.” While the Ombudsman’s Office cannot compel USCIS to act, it can provide additional assistance in prodding USCIS to adjudicate a case.

If making a submission from outside the United States, the DHS online system may be inaccessible, but the applicable form (with attachments) can be sent via email after advising the Ombudsman’s Office of access issues. Once a submission is accepted, an email acknowledgement will be received assigning an Ombudsman case number and, in some cases, requesting additional information. It may take 90 days or more for action to resolve inquiries submitted to the Ombudsman, and recent increases in the number of I-526 related requests has made this option less effective.

Unreasonable Delay Beyond Posted Processing Time – Petition for Writ of Mandamus

For an I-526 significantly beyond posted processing times, the investor and project can consider petitioning for a writ of mandamus in federal court; this may be particularly called for in instances where multiple investors are similarly situated in terms of unreasonable delay. A writ of mandamus is an order from a court to a government agency requiring that the relevant official properly fulfill official duties or correct an abuse of discretion.

When filing the writ petition, it will be important to include evidence of past attempts to resolve issues directly with DHS/USCIS. USCIS will have 60 days to respond to the writ petition. If the court sides with the investor/project, it will order USCIS to fulfill its duties to adjudicate the I-526s in a timely manner (usually within 90 days of the court order). Filing the writ petition may, alternatively, result in USCIS agreeing to issue a decision on the I-526 in order to settle the court proceeding.

In either case, the process may be prolonged as government attorneys may request extensions to respond, especially as more and more investors, regional centers and projects turn to this remedy. Nevertheless, when other avenues have been exhausted and proven ineffective, this seems the most effective way to force action by USCIS. In some cases, USCIS action may ultimately be adverse to the investor, including the issuing of a denial, a Request for Evidence, or a Notice of Intent to Deny. At least such action may come sooner rather than later.

David Enterline has lived and worked in greater China over 20 years and manages his EB-5 practice with WTW Taipei Commercial Law Firm.

Ivan Torres, J.D., LL.M. (Chinese Law), has over a decade of legal experience mostly in greater China. He practices with WTW Taipei Commercial Law Firm in its EB-5 Department

 

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