All arriving travelers are subject to inspection by a CBP officer prior to entering the United States. The U.S. Customs and Border Protection (CBP) is responsible for conducting immigration inspections at America’s 329 Ports of Entry with the goal of excluding those that are not eligible for entry, while ensuring the entry of lawful travelers. With the recent terrorist attacks and the increased focus on maintaining security during immigration screening, there are more concerns than ever about making sure that only eligible nonimmigrants enter the U.S. As a result, it is particularly important for travelers to know what to do at the airport when they arrive and speak with CBP personnel.
Immigration was the spotlight issue of 2015. Everyone was talking about it from politicians to the media to the general public. Unfortunately, the discussions were often negative and focused on keeping people out of the U.S. Even though 2015 was bad for immigration policy in a political sense, legally there were a lot of positive changes mixed in with some disappointments.
Here are some of the top developments of the year:
Since the attacks in Paris and California, there’s been a rush to implement new restrictions on the visa waiver program. The program allows individuals from 38 countries, 30 of which are European, to travel to the U.S. for business or tourism for up to 90 days without a visa. Instead, they apply online under the Electronic System for Travel Authorization (ESTA). In return, U.S. citizens can visit those countries without getting a visa. It currently brings almost 20 million people to the U.S. every year.
The best thing to do is to know the rules. Getting a visa to visit the U.S. for business or pleasure can be difficult for some travelers. Before we get to the rules, the first issue is to verify whether your family member needs a visa. For those individuals who are nationals or citizens of Visa Waiver countries, a visa is not required in most cases and they can apply online under the Electronic System for Travel Authorization (ESTA). The State Department provides a list of Visa Waiver countries and instructions. If your family member is not a national or a citizen of a Visa Waiver country, then she needs to request a visa from her local U.S. consulate.
Once you determine that she does need a visa, the greatest areas of concern that can arise during the interview generally fall into these 3 categories:
It is all too common for nonimmigrants to be detained by U.S. Immigration and Customs Enforcement for a prolonged period with little hope of release while their case is pending. We have a case right now of a person who has been held for over a year already. Fortunately in a recent decision, the U.S. Court of Appeals for the Second Circuit stated that this detention raises serious constitutional issues. The court decided that individuals must be given the opportunity for a bail hearing and placed a high burden on the government to establish why an individual should be denied bail.
A frequent issue for people visiting the U.S. with a visa is how long they can remain in the country lawfully. A visa is a travel document that allows a foreign traveler to request admission to the U.S. at a U.S. border or port of entry. Typically, a visa will allow travel to the U.S. over an extended period. For example, B-1 and B-2 visas for business travelers are usually valid for 10 years. That permits these visitors to make regular trips to the U.S. over the 10-year period without having to apply for a visa for each individual trip. However, they cannot stay in the U.S. continuously for 10 years. This rule applies for any nonimmigrant visa although the overall length of the visa varies based on country and visa type.
A decision by the 5th Circuit Court of Appeals on November 9th means more delays in implementing rules to protect millions of nonimmigrants from deportation. Although the ruling is disappointing and frustrating, there is hope. The argument will now move to the US Supreme Court, where we expect the decision to be reversed.
As we’ve discussed previously, in 2014, President Obama signed an executive order expanding the Deferred Action for Childhood Arrivals (DACA) program and creating the Deferred Action for Parental Accountability (DAPA) program. A lawsuit by 25 states has kept the executive order from going into effect. The lower court in Texas held that the states could proceed with their lawsuit and the 5th Circuit has upheld that ruling. Despite this decision and the understandable fear among nonimmigrants, there are positives to this situation:
One of the biggest obstacles for undocumented immigrants seeking permanent residency is the fact that they entered the US illegally. The unlawful entry often prohibits them from getting a green card even if they have a family member who could sponsor them. However, there are some very unique exceptions. One of those involves Deferred Action for Childhood Arrivals (DACA) recipients.
International students with Science, Technical, Engineering and Math (STEM) degrees may become eligible to work in the U.S. for up to 3 years under new proposed rules. On October 19, 2015 the U.S. Department of Homeland Security (DHS) issued proposed changes to its regulations, which offer both additional benefits and employer requirements for students and businesses using post-completion STEM Optional Practical Training (OPT). The proposed rules are in a comment period and are not final.
Overview of the proposed rules
The proposed STEM extension rules will replace the 2008 STEM extension rule currently available to certain STEM students. The proposed regulations are in response to a federal district court’s decision invalidating USCIS’s 2008 STEM extension rule and also a part of President Obama’s executive action to strengthen and extend on-the-job training for STEM graduates of U.S. universities. After completing a post-secondary degree program (e.g., undergraduate, graduate or post-graduate) in the U.S., an F-1 visa student can apply for the post-completion OPT program to get work authorization for 1 year. However, those in qualifying STEM fields can apply for an additional work permit beyond the 1-year under the STEM OPT program.
The 2008 STEM OPT program gave STEM students work authorization for an additional 17 months after the 12-month period available to any F-1 student (29 months in total). The proposed rule would extend the current STEM OPT period from 17 months to 24 months, for a total of 36 months. [Read more…]
The USCIS just published proposed rules and policy guidance that could make it easier for non-immigrants to qualify for extreme hardship waivers. Under several immigration provisions, non-immigrants who would otherwise be required to leave the US and would not be able to get a green card can get a waiver because of extreme hardship. However, the rules about what constitutes extreme hardship and when they apply have not been clear. The proposed guidance addresses these problems. These changes are now open for public comment. If they are passed, it should result in many more waivers being approved.
When does the extreme hardship waiver apply?
Nonimmigrants may be considered inadmissible for a green card and get deported if they have committed certain criminal offenses, or other misconduct. However, the immigration rules recognize that in some cases, a nonimmigrant applicant should get a waiver because a qualifying relative will suffer “extreme hardship” if the applicant is denied a visa. A qualifying relative is an applicant’s US citizen (or in some cases Legal Permanent Resident) spouse or parent.
What are the changes in the proposed policy guidance? [Read more…]