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Department of State/AILA Liaison Committee Meeting March 5, 2020

Introduction

The Department of State’s Visa Office (VO) welcomes the opportunity to discuss issues of mutual interest with AILA’s Department of State Liaison Committee. VO believes these discussions can provide clarity to the public on current immigration policies and procedures, which is a benefit to all involved. Following are VO responses to issues raised by AILA in anticipation of this meeting. Following the March 5 meeting, these questions and answers will be published on the website of the Bureau of Consular Affairs at Travel.State.Gov, possibly with modifications based on the live discussion.

General Visa Office Operations

1. AILA has heard that many of the attorneys in the Department of State Visa Office have been moved or will be moved into the Office of Legal Advisor. Visa Office attorneys have always provided valuable assistance directly to consulates. Can State confirm how the move of these positions into the Office of Legal Advisor may change the services provided and the timeliness of those services to consulates? A proposed reorganization generally would result in CA legal offices becoming part of the Office of the Legal Adviser, L/CA, with certain exceptions. We appreciate your praise for the work of the Visa Office’s attorneys and have no reason to believe the reorganization will change the scope or timeliness of services provided by the Department’s attorneys to consular sections overseas.

Visa Bulletin

2. In the past, the Visa Bulletin would be issued around the 10th of the month. It is now typically published during the third week of the month, which delays the publication of the related USCIS charts for adjustment of status and places increased pressure on visa applicants to file applications more quickly. Can State please explain what factors have led to the delay in publishing the Visa Bulletin and would it consider taking steps to return to its previous schedule for bulletin release?

Multiple factors are involved in preparing the Visa Bulletin including modernization of IV processing, increased data sharing with USCIS, and improvements to our forecasting and numerical allocations process. At this time, we do not plan to return to the previous schedule, but will continue to explore ways to communicate with the public more effectively regarding Application Filing Dates and Final Action Dates.

NVC Consular Electronic Application Center

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3. AILA continues to receive reports of frequent Consular Electronic Application Center (CEAC) website crashes (even when using Explorer to access it), along with frequent logout/timeout issues. Since the last liaison meeting in October 20191, has any additional development been completed on the CEAC system to reduce the frequency of these issues? If so, please provide an update on the status of the website development. Development continues on the range of applications that comprise fully electronic processing. We note that the Department’s immigrant visa pages on travel state.gov were updated in February with further improvements planned this year.

NVC Document Submission Issues

4. AILA has received reports of documents being rejected without explanation or being deleted after being uploaded and being rejected due to being submitted incorrectly even though information is perfectly legible. These issues seem to indicate that the CEAC system would benefit from use or development of a document management software. Has State considered this option, and if so, please provide any update on its status? Development continues on the range of applications that comprise fully electronic processing, including document management and messaging to case parties.

5. During the November 7, 2019 NVC liaison meeting, NVC indicated that the size limit for

uploaded documents would be increased to 4MB from 2MB sometime in 2020.2 Can State confirm the timeline for this change? Please also confirm the file formats currently accepted by the NVC in addition to PDF. File types and sizes are described at https://nvc.state.gov/scan. The proposed file size increase remains scheduled for 2020 subject to application development and the page will be updated when that occurs.

6. AILA members report documents are at times not accepted by the NVC, despite

apparently meeting the upload guidelines. AILA has also received reports of documents that were accepted and later listed as “missing”, despite copies of the documents being available for download on the NVC portal. These issues have led to severe delays in processing. Please confirm:

Is there a timeline for addressing the issues listed above? There are plans to address this issue in 2020. This issue does not delay your case as the previously accepted document will allow your case to move forward. Is there any potential harm or delay caused by resubmitting a document that has already been submitted but is marked as “missing”?

1 See AILA DOS Liaison Q&As (10/3/19), available at https://www.aila.org/infonet/aila-dos-liaison-qas-10-3-19 2 See AILA NVC Liaison Q&As (11/7/19), available at https://www.aila.org/infonet/aila-nvc-liaison-qas-11-7-19

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Resubmitting duplicate documents could cause delays. We recommend you mark the duplicate “missing” document to “Not Available”. Is there a preferred process to alert the NVC to these issues other than the Public Inquiry Form? If not, is there a particular way that stakeholders should designate their inquiries to alert State to these issues? The public inquiry form remains the best method of reporting technical issues.

NVC Communication

7. AILA continues to receive member reports of long waiting periods or busy signals when utilizing the NVC telephone system. Does the NVC have any plans to expand the capability and/or staffing of the telephone response system? NVC acknowledges the current long hold times at the call center and is working with our contract partner to improve that performance.

8. The travel.state.gov website currently reports response time to a question or issue raised through the “Ask NVC” Public Inquiry Form is approximately 7 to 9 weeks.3 In previous years, responses to questions submitted to the NVCAttorney email address were often received within 8 days. Can State please confirm what factors are contributing to the heightened response times when compared to the previous email system? NVC acknowledges the current long response times to email inquiries and is working with our contract partner to improve that performance.

9. AILA members report that their clients are receiving email communications from the

NVC instructing them to log in to their electronic file to review an email, despite the fact that a Form G-28 has been filed and the attorney of record is not being notified of such email communications. Please confirm that the attorney of record should be notified of any communication in a case, including where communications require logging into the applicant’s electronic case file. For electronically processed cases, communications with attorneys and other case parties are transmitted via CEAC with notifications on new messages sent to addresses provided under “Contact Information” in the CEAC portal.

10. AILA members report that there is a significant delay, often lasting several months,

between the time that an immigrant visa application is documentarily qualified, and the applicant is scheduled for an interview at a post. Please confirm:

a. On average, how long it should take for a case to be transferred to post once it is documentarily qualified at NVC? NVC schedules cases based upon capacity provided by the overseas posts.

3 See NVC Contact Information, “Before you contact us, please review out Frequently Asked Questions (FAQs), available here: https://travel.state.gov/content/travel/en/us-visas/immigrate/national-visa-center/nvc-contact-information.html

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b. What options are available to applicants waiting several months for a visa appointment to effectively inquire into the availability of an appointment date at a given post? Applicants are assigned interview locations based upon their country of residence and the consular post that has jurisdiction for that location. Since NVC schedules interviews according to post availability, inquirers will be informed to await an appointment date and time at their assigned location.

NVC Affidavit of Support Issues

11. AILA understands that the NVC does not adjudicate applications or determine eligibility for an immigration benefit. However, are there any circumstances when NVC would inform an applicant that the petitioner is not financially qualified to be a sponsor or not forward an immigrant visa application to a consulate based on financial viability? Information regarding NVC’s role in reviewing the I-864 Affidavit of Support is set forth here: https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/i-864-affidavit-faqs.html.

NVC Following to Join Applications

12. If a resident alien files a Form I-824, Application for Action on an Approved Petition, for relatives abroad, is a new file created at the NVC following approval of the I-824? If not, is the following to join relative required to communicate directly with the consular post abroad to initiate an immigrant visa interview? Yes, once NVC receives an approved Form I-824 from USCIS, a new file and case is created in our system.

NVC I-601A Issues

13. If NVC transfers an immigrant visa file to the U.S. consulate abroad is there a procedure available to request return of the file to the NVC for the purposes of filing a provisional waiver application, Form I-601A with USCIS? No. Guidance for consular officers at 9 FAM 302.11-3(D)(1)(b)(3)(b) describes related processes, noting that:

When a case file has been transferred to a consular section from NVC, it is no longer possible to submit an IV processing fee payment through CEAC. Consequently, the IV applicant will be unable to submit a Form I-601A application, since proof of an IV processing fee payment is required. Individuals applying for a Form I-601A who are still residing in the United States may have a third party submit an IV processing fee on their behalf. Consular cashiers may process the fee and provide the third party a receipt with the IV case number, the applicant’s full name, and "A" number (if one exists) written on the receipt by consular staff. This will allow the USCIS lockbox to associate the Form I-601A application with the correct IV fee receipt.

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14. AILA understands that USCIS communicates with NVC when an I-601A waiver is filed, allowing NVC to hold an immigrant visa application in abeyance during USCIS processing. However, members report an increase in instances where they are receiving 203(g) termination letters when an I-601A waiver is still pending with USCIS. Assuming the above understanding is correct, has there been any change to the process by which USCIS notifies NVC of an I-601A waiver being filed?

NVC and USCIS identified procedural issues impacting the receipt of notifications for USCIS actions for these cases and updates to the records at NVC. We are currently working through the associated backlog to update those records. If an applicant applied for an I-601A waiver and receives a termination letter, the Department will stop termination and reinstate the case upon presentation of evidence regarding the I-601 application.

Additional NVC Procedural Issues

15. If NVC transfers an immigrant visa file of a minor to the U.S. consulate abroad, but the minor ages out and becomes eligible for a different family preference category which is not current, does the consulate return the file to NVC to await further processing once visas become available? No. Once a case file is transferred overseas it should remain overseas for processing; including when preference categories change or when cases of any type retrogress.

16. AILA understands that the consular officer at a post determines whether an applicant

remains a child eligible to join the principal applicant under the Child Status Protection Act (CSPA). Recognizing that this is a legal determination made at the consulate, can all dependents initially included in the petition be issued a fee bill and access Form DS-260 regardless of their chronological age? NVC screens all cases for eligibility under CSPA to determine how to process the cases and to avoid sending fee bills to individuals who will not be eligible for a visa. However, if an individual disagrees with this preliminary screening and would like to make an application to have a CSPA adjudication performed by a consular officer at post, then NVC will process that case accordingly and issue a fee bill.

17. What procedure is available to request that NVC continue processing a case that was approved for humanitarian reinstatement by USCIS? If USCIS reinstates the petition, USCIS returns the petition through NVC to post.

Communications Glitches with Consular Post Emails

18. AILA members report issues with the support email addresses for certain posts where responses come from posts other than the one intended, or direct the attorney to a non-relevant email address/post. For example, one member recently emailed support-dominicanrepublic@ustraveldocs.com regarding a pending case and the attorney received a response indicating that the members should contact the US Embassy in Monrovia. In another example, the attorney emailed support-liberia@ustraveldocs.com and received a reply from the Dominican Republic. AILA members also report that messages sent to the email address for US Embassy-Seoul: support-korea@ustraveldocs.com went to a general

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mailbox in Saudi Arabia. Is State aware of this problem, and if so, are there any plans to address it? We were not aware, and thank you for bringing this to our attention. We will look into it, but would also appreciate the specific examples so that we can better track what happened.

Impact of IV Issues

19. AILA members report that the U.S. Embassy in London is now asking to see a medical summary in connection with the immigrant visa interview medical exams. What is the basis for this new requirement? We checked with post and they are not aware of any new medical exam requirements. Please provide additional information on what has been requested.

20. AILA members report that the U.S. Embassy in Manila questions the validity of

employment contracts for nurses (Schedule A EB-3) when the contract includes a liquidated damage clause. There is no prohibition on liquidated damages clauses for immigrants. Would State be willing to remind the post in Manila that an employment contract for an immigrant may include a liquidated damage clause? We are aware of the concerns raised by the industry on this issue and are working with post to ensure that these visas are adjudicated consistently and in accordance with the law.

21. If a noncitizen child who has an approved I-360 application for Special Immigrant Juvenile Status

is deported before being able to apply for adjustment of status, and that child, while outside the United States, seeks and obtains relief on appeal/petition for review, or through a motion to reopen, resulting in reversal of the removal order, does State have a process for the child to re-enter the United States other than waiting to file an application for an immigrant visa? State does not have a process to address this request. You may wish to direct the question to ICE, taking into consideration the discussion of that issue at https://www.ice.gov/faq/facilitating-return.

International USCIS Office Closures

22. As of February 1, 2020, USCIS has stopped accepting Form I-130s filed at its international offices, except for London and Accra (which will cease accepting I-130s of April 1, 2020). According to USCIS, a consulate will process a Form I-130 locally if the petition falls under blanket authorization criteria, as defined by USCIS, including4: • Temporary blanket authorizations for instances of prolonged or severe civil strife or a

natural disaster; or • Blanket authorization for U.S. service members assigned to military bases abroad.

4 See USCIS Updates Process for Accepting Petitions for Relatives Abroad, available here: https://www.uscis.gov/news/news-releases/uscis-updates-process-accepting-petitions-relatives-abroad

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Please confirm:

a. What criteria will be used to determine whether individuals in a given location qualify for blanket authorization based on prolonged or severe civil strife or a natural disaster? Will this require a formal designation and, if so, will USCIS or State make the designation? This would be an official designation made by USCIS.

b. Does the blanket authorization for U.S. service members assigned to military bases abroad include only active duty members of the armed services or are contractors performing support roles included? The blanket authorization only applies to active duty U.S. citizen military service members permanently assigned to U.S. military bases outside of the United States. It does not apply to non-U.S. citizen service members, service members assigned to non-military bases (such as U.S. embassies, international organizations, or civilian institutions) or to service members on temporary duty orders.

23. 9 FAM 504.2-4 provides guidance for a posts authorization to adjudicate “clearly

approvable” immigrant visa petitions. In the event of a case that is not considered “clearly approvable”, please confirm:

a. If a consular officer determines that a case is not “clearly approvable” will the post return the case to the NVC for routing on to a USCIS service center per 9 FAM 504.2-4? Or will officers continue to direct petitioners to the USCIS website for filing instructions? Consular officers will notify the petitioner with a standard response if an I-130 petition is found not clearly approvable. The case will be sent, routed through NVC, to the designated USCIS office for adjudication. When USCIS receives the petition, they will send a Notice of receipt to the petitioner. See 9 FAM 504.2-4(B)(1)(e).

b. If yes, in this circumstance would USCIS then issue a receipt number in order to process the case? Are these then considered revocations or just not clearly approved and under USCIS jurisdiction? You will have to confirm with USCIS how they will treat these cases, but they are not considered revocations, only not clearly approvable.

24. USCIS requires that U and T visa petitioners living overseas submit fingerprints prior to

the adjudication of their petition and instructs them to obtain the fingerprints at the nearest USCIS office or US embassy or consulate. With the closure of many USCIS offices abroad, what is the best way for U and T visa petitioners to obtain an appointment for fingerprinting at the embassy or consulate to provide biometrics? If there is any DHS counter service available at post, not just USCIS, the U or T petitioner should be directed to that office for service.

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Individuals needing to schedule an appointment at the embassy or consulate should check the embassy’s or consulate’s consular webpages first, to see if there is any information on the website about scheduling a fingerprinting appointment. They could also contact the nonimmigrant visa section directly, per the contact information on the embassy’s or consulate’s website.

LegalNet

25. What is the current response time for requests for LegalNet review? LegalNet currently responds to all in-scope inquiries within 4 to 6 weeks. For most cases, that is LegalNet’s final response; however, if cases require additional review, the timeframe for a final response varies.

26. Where a consular post does not respond to an inquiry relating to, for example,

interpretation of the law relating to a visa refusal or an error in the issuance of a visa, what is the current recommended protocol for following up with the post and, if that is not successful, for contacting LegalNet? We request that attorneys first attempt to resolve legal issues directly with Post. If a Post does not respond to an inquiry within their established timeframe, an attorney may contact LegalNet with a question regarding the interpretation or application of U.S. immigration law in a specific visa case.

27. When a post requests an advisory opinion from the Visa Office, what is a reasonable

amount of time for the applicant to wait before following up with the post on the status of the application? The Visa Office resolves the majority of advisory opinion requests from posts in two weeks or less, but some may take longer to resolve. Posts may have other administrative processing steps in addition to an advisory opinion that must be completed before they will contact the applicant resolving the case. In terms of when to follow up with post in a case an attorney knows involves an advisory opinion, the Visa Office defers to post’s instructions if any have been provided. However, if not, the Visa Office suggests 30 days as a reasonable time frame.

28. Are there certain categories of advisory opinion requests where an expedite request may

be made by the post on behalf of the applicant? If so, what are those categories?

As a general matter, the Visa Office does not differentiate between categories of cases when it comes to advisory opinion requests, but it will prioritize cases that posts identify as urgent. If post requests an expedite, we try to accommodate to the extent we are able.

29. Is there any process, similar to the DHS Traveler Redress Inquiry Program (TRIP)5 by

which an individual refused a visa because she appears on a watch list or otherwise has incorrect, derogatory information appearing in a national security or public safety database can review their record and present evidence to correct the record?

5 See DHS Traveler Redress Inquiry Program (DHS TRIP), available here: https://www.dhs.gov/dhs-trip

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An individual refused a visa may reapply at any time and provide the consular officer with any additional information the applicant believes may help demonstrate the applicant’s eligibility for a visa. The Department has no program like TRIP and is not able to disclose confidential records pertaining to the issuance or refusal of a visa, including derogatory database information, for applicant review. Individuals who believe they may be the subject of erroneous derogatory information can apply for redress through the TRIP process. The Department of State coordinates on TRIP requests that relate to visa issues.

Public Charge

30. On October 15, 2019 the Department of State published an interim final rule to align its public charge standards with those of the Department of Homeland Security.6 On October 24, 2019, State published proposed form DS-5540, Public Questionnaire7 and indicated that the final rule would not be implemented until the form and FAM revisions have been finalized. Please confirm:

a. When does DOS anticipate the new form DS-5540 will be finalized?

OMB approved the form on February 20, 2020, for use beginning February 24, 2020.

b. How soon after the new form DS-5540 is introduced, will applicants be required to submit it as part of the immigrant visa process? There will be a transition period in which applicants will not be required to submit the form to be documentarily qualified at NVC or KCC. However, applicants may complete the form and submit it to NVC or KCC with other documents, or provide it at the time of the interview. The consular officer may also elicit relevant information verbally.

c. Once introduced, will form DS-5540 be required of all immigrant visa applicants regardless of where they are in the visa process? Or, will it be limited, for example, to only those who are still in the process of submitting documents to the NVC? After February 24, 2020, any applicant who the consular officer believes may be ineligible under the public charge provision, as it relates to the totality of the circumstances, will first be requested to complete the DS-5540 to ensure a complete picture of the applicant’s age, health, assets, education and skills are evaluated before a public charge finding is made. In IV cases where there are derivative family members, only the principal applicant will be required to complete the DS-5540. We encourage applicants to complete the DS-5540 prior

684 Fed. Reg. 41292 (Oct. 15, 2019) 784 Fed. Reg. 57142 (Oct. 24, 2019).

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to the interview so that the consular officer can make a determination based on totality of the circumstances at the time of the interview. However, consular officers may also elicit this information verbally.

d. The draft form DS-5540 that was published for public comment on October 24, 2019, requests information and references documents that have not historically been provided to DOS. Please provide information about the planned document collection process. Form DS-5540 requests an applicant to provide proof of health insurance if the applicant responded “yes” to question 4 or 4A and to also provide a copy of his/her latest tax return if taxes were filed in the United States within the three previous years prior to interview. Applicants should also consider bringing any additional supporting documents to the interview to establish assets, skills, liabilities or other information provided on the Form DS-5540 should the consular officer find it useful in making a public charge determination based on the totality of the circumstances.

31. Concerning the NVC’s role in implementation of public charge, please confirm:

a. Will public charge related documents be collected by the NVC? NVC collects the I-864 Affidavit of Support and supporting documents. There will be a transition period in which applicants will not be required to submit the DS-5540 to NVC. However, applicants may complete the form and submit it to NVC with other documents.

b. Will the NVC evaluate or analyze the sufficiency of public charge documentation in an effort to limit the frequency of 221(g) refusals due to insufficient documentation determinations made at posts following interviews? Information regarding NVC’s role in reviewing the I-864 Affidavit of Support is set forth here: https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition/i-864-affidavit-faqs.html. Under current procedures, if an applicant submits a DS-5540 with other supporting documents to NVC, it will not be reviewed at NVC, but will remain with the paper or electronic case file that is sent to post.

c. Will applicants be able to request forwarding of their file to a consulate for a 212(a)(4) public charge determination where the NVC does not find the application to be documentarily qualified due to public charge issues?

If NVC has recommended the submission of a joint sponsor, a case party (i.e., the beneficiary, petitioner, or an agent of record) may submit a written statement that the I-864 submitted is sufficient. NVC would then schedule the case if otherwise

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documentarily complete. Consular officers only adjudicate the I-864 once a case is at post and not as part of NVC’s pre-adjudication processing.

32. The DHS public charge rule conflicts with the language presently in 9 FAM 302.8. When

does DOS anticipate the revised FAM provisions will be published? The revised FAM was published on February 24, 2020.

33. Members have recently seen an increase in refusals citing INA§214(a)(4) where the

sponsor has been temporarily residing outside of the United States, but otherwise satisfies Affidavit of Support requirements. What policy guidance do officers use to assess the domicile of a financial sponsor? Officers use the guidance in 9 FAM 601.14-6 to assess the domicile of a sponsor. Prior to February 24, 2020, this guidance was available at 9 FAM 302.8-2(C)(5).

34. If a consular post determines that the information provided to satisfy the requirements of INA 212(a)(4) is insufficient where circumstances suggest that the applicant could overcome the deficiency with additional documents or information but refuses the application under 212(a)(4) instead of 221(g), is there a protocol that can be utilized to ask for a review of such determinations? The Foreign Affairs Manual, at 9 FAM 302.8-2(B)(5), provides guidance to consular officers on when to refuse under INA 212(a)(4) and when to refuse under INA 221(g). LegalNet will review inquiries with this distinction in mind, particularly as it is a relevant distinction for applicants with I-601A provisional waivers. Applicants may overcome a finding of 212(a)(4) by submitting additional documents that would address the deficiency in the same way that they overcome a 221(g) refusal for missing required documentation.

35. Will K-1 visas be subject to the DOS public charge analysis or will DOS defer to DHS

determination of 212(a)(4) admissibility in the adjustment of status process? K-1s continue to be subject to the public charge determination when applying for a visa. DHS also may make a public charge determination at the time of admission and adjustment.

Presidential Proclamation 9945 On October 4, 2019, President Trump issued a Proclamation 9945, Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System (PP945).8 On November 26, 2019 the provisions were temporarily enjoined. Please confirm:

8 84 Fed. Reg. 53991 (Oct. 4, 2019)

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36. Does the injunction of the provisions of PP9945 have any impact on the implementation of State’s new regulations governing its public charge analysis? If so, how are these issues related? The Department is not implementing PP 9945, and the enjoined proclamation currently has no impact on the public charge analysis.

37. If PP9945 takes effect, would its provisions be applied to K-1 nonimmigrant visa applicants? K-1 is a nonimmigrants visa classification, in accordance with the INA and for purposes of the proclamation, which applies only to immigrants.

Presidential Proclamation 9645

38. In September 2019, Deputy Assistant Secretary Edward Ramotowski informed Congress that State anticipated that the backlog of pre-July 2019 PP 9645 waivers would be cleared by the beginning of 2020 or soon thereafter.9 During our October 2019 liaison meeting, State indicated that it anticipated that the majority of the pre-July 2019 waiver cases that remain pending would be completed within six months.10 The most recent report from Jan. 14, 2020 suggests the number of visa applicants who have been found to satisfy the undue hardship and national interest prongs, awaiting national security and public safety prong is nearly one third of 42,048 applications found ineligible for waivers.11 That means roughly the same number of visa applicants remain in the backlog. Please confirm:

a. Does State still anticipate reducing or eliminating this backlog and, if so, the estimated timeline for doing so?

We believe the vast majority of the referenced cases are now with posts and are in the final stages of adjudication, which may include requesting final actions from applicants before consular officers can make the final adjudication decisions. More than 20,000 visas have been issued pursuant to a waiver of PP 9645 as of the end of January 2020.

b. Is there any process available to allow the automated review system currently in place to be applied to the applications in the backlog?

The new automated review process applies to nearly all new cases and most cases adjudicated prior to the process implementation.

9 See Testimony of Edward Ramotowski Deputy Assistant Secretary, Bureau of Consular Affairs Department of State September 24, 2019 House Judiciary Committee Subcommittee on Immigration and Citizenship and Foreign Affairs Committee Subcommittee on Oversight and Investigations, available here: https://docs.house.gov/meetings/JU/JU01/20190924/109976/HHRG-116-JU01-Wstate-RamotowskiE-20190924.pdf 10 See AILA DOS Liaison Q&As (10/3/19), available at https://www.aila.org/infonet/aila-dos-liaison-qas-10-3-19 11 See Implementation of Presidential Proclamation (P.P.) 9645 December 8, 2017 to December 31, 2019, available here: https://travel.state.gov/content/dam/visas/presidentialproclamation/Presidential_Proclamation_9645_Montly-Public-%20Reporting%20%E2%80%93%20December%202019.pdf

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39. AILA members continue to report that, when applicants are in administrative processing

for a waiver of PP 9645, following their first consular interview, the CEAC status for the applications often rotates through refused, administrative processing, and expired, before finally showing an issued screen if a visa is issued. This cycle continues to cause confusion and distress among applicants and their attorneys. Is there a plan to adjust the adjust the CEAC status system to better reflect the status of a waiver’s consideration? The Visa Office is aware that the CEAC status sometimes reflects a description of status that is confusing to applicants. The Visa Office fully appreciates the stated concerns and has submitted a request to our consular systems teams to remedy this issue.

40. On January 31, 2020, the list of countries subject to PP 9645 was expanded to include 6 new countries, Burma, Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania and is set to take effect on February 21 at 12:01am.12

a. Can the State Department confirm that the waiver process for these nationals will be the same as for the other countries in that consular officers will determine if the undue hardship and national interest criteria are met? Yes. The waiver process is the same.

b. How is the State Department going to process cases that are in queue for an interview at this time, and leading up to the implementation date? Cases issued before the implementation date of February 21st, 2020 were not subject to the proclamation and were processed without regard to the proclamation. Cases not issued until after the implementation date are subject to the proclamation and were processed as such.

c. Will State consider expedited processing requests? If so, what expedited processing criteria will it use to ensure cases are not unnecessarily delayed before February 21, 2020? State will not consider changing expedite standards based on the proclamation. As always, the Department will continue to process cases as quickly as possible.

TN educational/experience standard

41. The minimum education and experience required for the TN category of Management Consultant are set forth in Appendix 1603.D.1 to Annex 1603 of the NAFTA. AILA members report that consular officers at the post in Ciudad Juarez are not acknowledging or applying the third criteria, “five years of experience in a field of specialty related to the

12 See updates to Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry, available here https://www.whitehouse.gov/presidential-actions/proclamation-improving-enhanced-vetting-capabilities-processes-detecting-attempted-entry/

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consulting agreement”. Is State willing to remind the post of the three separate criteria (including the one listed above), by which an applicant may qualify for a TN visa as a Management Consultant?

Yes. We have shared your concerns with colleagues in U.S. Mission Mexico, who adjudicate the vast majority of TN visa applications for the world. Consulate General Ciudad Juarez is mindful of the criteria noted in Appendix 1603.D.1 of NAFTA. U.S. Mission Mexico has regular discussions on the topic of TN adjudications in order to refine how these applications are adjudicated. E-2 Treaty Investor Status

42. During the October 2019 liaison meeting, State confirmed that the reference to having a physical business office was not meant to be read literally and that the regulations take into account a flexible view of what would constitute an appropriate E enterprise.13 At the time, State indicated it would consider providing additional guidance to posts on this issue. Has State provided such guidance? If not, is it still willing to do so?

We intend to make appropriate amendments to 9 FAM 402.9 addressing the need for physical office space to qualify for an E visa.

E-3 Changes

43. 9 FAM 402.9-4(C) Intent to Depart Upon Termination of Status was edited for E-3 visa applicants in 2018 removing, “an E-3 applicant may be a beneficiary of an immigrant visa (IV) petition filed on his or her behalf.” and changing it to “an applicant who is the beneficiary of an immigrant visa petition will need to satisfy you that his/her intent is to depart the United States at the end of his/her authorized stay, and not stay in the United States to adjust status or otherwise remain in the United States.” Please confirm:

a. Does this change of wording reflect a change in policy or it is simply a restatement of previously existing policy? This provision was amended to track the statute more closely and provide a more thorough explanation of the policy previously disseminated to our posts. All NIV classifications not expressly listed in section 214(b) and 214(h) of the INA as being excepted are presumed to be immigrants, until they establish their entitlement to a nonimmigrant status under section 101(a)(15).

b. What consequences, if any, should be anticipated for an E-3 nonimmigrant making an application to adjust status within the U.S.? Adjustments of status occur within the U.S. and are outside the jurisdiction of State. Accordingly, we would defer to the Department of Homeland Security. Consular officers would need to independently assess, and not categorically

13 See AILA DOS Liaison Q&As (10/3/19), available at https://www.aila.org/infonet/aila-dos-liaison-qas-10-3-19

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approve or refuse E3 applicants with pending applications for immigration benefit(s). The determination of whether a visa applicant intends only a temporary entry and has the unequivocal intent to depart the United States is the same for treaty aliens in specialty occupations as for other NIV classes not listed in 214(b) or 214(h).

Additional NIV Issues

44. While, it is possible to check the status of visas pending in Ciudad Juarez, Monterrey, Hermosillo, etc. using the applicant’s visa application number, this option is not available at other posts in Mexico, specifically Tijuana. Would it be possible to extend this option to the Tijuana post? There is a coding problem which has prevented Tijuana applicants from viewing the status of their visa applications via Visa Status Check. A correction is being made and this option should soon be available again in Tijuana.

45. AILA members report that the consular post in Guangzhou, China is making all parents file I-601 waivers for human smuggling under INA §212(a)(6)(E) in which the petitioner entered the U.S. illegally, regardless of the parents’ answer of whether they assisted or encouraged the illegal entry. Is there a presumption that parents are required to file an I-601 waiver in such circumstances regardless of their answers on the DS-160 and at the time of interview? I-601 waivers do not apply to nonimmigrant visa applications, so there are no questions on the DS-160 that could prompt the applicant to apply for that type of waiver. Presuming you are referring to the DS-260, please note that each applicant applies for a waiver individually, post does not require applicants to apply for a waiver if they do not wish to pursue one. Each applicant is assessed on a case-by-case basis given the specific circumstances of their case. If the applicant is found to be ineligible under INA 212(a)(6)(E) at the time of interview then post offers them the opportunity to pursue an I-601 waiver if they so choose.

J-1 Exchange Visitor Visa Issues

46. The DS-3035 form has space for only 8-digit Alien numbers, whereas more recently issued A numbers are nine digits. Does State have plans to update the online form to provide for nine digits?

The Department intends to remove the Alien number (A number) from the DS-3035 in

the upcoming renewal of the DS-3035, because there is no longer a need for the A number on the form. Until the form is updated, applicants may leave this item blank when completing the form.

Fee Payment Options

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47. Has DOS made any significant changes to the visa payment requirements and processes on the https://ustraveldocs.com/ and https://ais.usvisa-info.com/ websites? Recently, payment methods that have worked in the past have been declined, including foreign and domestic debit and credit cards from various banks. DOS has not made any significant changes to worldwide visa payment requirements or processes. Because DOS provides payment options through contracted vendors, the availability of some payment options may shift from time to time, either because of changes in the local business environment or as a result of recommended measures to ensure fee accountability. Vendors ensure that websites and information services maintain up-to-date information on payment options in each country. Applicants can contact their local GSS provider via call center or email for additional MRV payment guidance. Here is the contact page for Mexico https://ais.usvisa-info.com/en-mx/niv/information/contact_us and for India: https://www.ustraveldocs.com/in/in-main-contactus.asp.

Form DS-160

48. Form DS-160 asks, “Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar action?” Should a person who is issued a speeding or traffic citation (“ticket”) in violation of state law respond “yes” to this question and provide details regarding the alleged traffic offense? It depends on the facts and nature of the offense. For example, in Virginia, if a driver exceeds the posted speed limit by 20 miles per hour or more, or drives over 80 miles per hour, Virginia law considers the offense reckless driving, a class 1 misdemeanor, and a serious criminal offense. In some other circumstances, based on the law of the jurisdiction and underlying facts, speeding is not considered a criminal offense.

49. During the October 2019 liaison meeting, State indicated that it was working on a new

version of Form DS-160 that would contain several enhancements, including removing gender triggers.14 It appears that these changes may now have been made; however, it is not possible to track the changes made. Will State please provide an update of the changes made to the DS-160 since the October 2019 liaison meeting?

There have been no changes to the DS 160 since the addition of an optional social media question and other security-related questions were deployed on October 12, 2019. Removal of the gender triggers was delayed, but now expected to be deployed in late April 2020. Screen shots are on the OMB Form Inventory Site at https://www.reginfo.gov/public/do/PRAViewIC?ref_nbr=201905-1405-001&icID=184376

Visa Refusals for Those of Iranian Descent

14 See AILA DOS Liaison Q&As (10/3/19), available at https://www.aila.org/infonet/aila-dos-liaison-qas-10-3-19

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50. Visa refusals under 212(a)(3)(B) for Iranian and Syrian national males with military service appear to have significantly increased. Please confirm:

a. Is there any procedure through which visa applicants refused under 212(a)(3)(B) have an opportunity to seek reconsideration of the decision? (U) An applicant may reapply to seek a new determination of eligibility.

b. Is membership in organizations identified as a terror threat per se basis for visa refusal regardless of whether the applicant’s membership was voluntary or involuntary (i.e., drafted) membership? In the INA, there is no distinction between voluntary and involuntary membership in a terrorist organization. INA section 212(a)(3)(b)(i)(VI)

c. Are there different standards of review for immigrant visas rather than nonimmigrant visas? INA section 212(a)(3)(B) applies the same for both immigrant visa applicants and nonimmigrant visa applicants.

51. Would an individual be subject to refusal under 212(a)(3)(B) if employed for a company

contracted to provide work for a military organization before it was designated as a terrorist organization? Any such case would require careful consideration of the unique facts, making it difficult to generalize or address hypotheticals, however, the designation of a government entity, the IRGC, as a terrorist organization established that the INA terrorism provisions may apply to government entities and official acts. Furthermore, when a group had engaged in terrorist activity prior to being designated, then it was an undesignated terrorist organization during that prior period. Accordingly, any individual who provided material support to the group, directly or through another entity, (during the period the group was an undesignated terrorist organization), would be inadmissible under INA section 212(a)(3)(B). The individual might not be ineligible under 3B, however, if the employing entity was exempted from treatment as a terrorist organization under one of the group exemptions granted at the time the IRGC was designated a Foreign Terrorist Organization and the individual did not personally provide material support to the terrorist organization. See exemptions at 84 FR 17227.

Executive Order 13902

52. Can State provide guidance on the following questions related to the implementation of Executive Order 13902 restricting immigrants and nonimmigrants citizens of Iran engaged or supporting certain sectors of the Iranian economy15:

15 85 Fed Reg. 2003 (Jan. 14, 2020)

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a. Can DOS explain how new sectors will be designated and how new designations will be announced? Does DOS expect that new designations will be similarly broad (e.g. textiles, manufacturing) or more narrowly focused?

Will past participation in those industries trigger EO13902 or only current employment causes an individual to be subject to its provisions?

We refer you to the Department of Treasury, which is primarily responsible for such designations. Only activities that occur on/after January 10, 2020 would be subject to sanctions under E.O. 13902.

For the purposes of determining whether someone “operates in” one of the listed sectors, does DOS consider studying in (i.e. is pursuing an academic degree in) one of those fields as “operating” in them? We refer you to the Department of Treasury, which is primarily responsible for such designations.

b. Does State interpret the EO to apply to LPRs, dual nationals, refugees, those Iranians already in possession of a visa, those present in the U.S., etc. (essentially, those exempt from the separate PP9645 travel restrictions)?

The role of consular officers and the Visa Office is limited to visa applicants designated by the Department of Treasury. The EO does not have categorical exclusions relating to visa applicants. For other issues, we refer you to the Department of Treasury.

c. Is there is a process for those subject to EO13902 to request a “waiver” or to otherwise be excused from its restrictions? There is no such process in the visa adjudication context. As to any other possibilities, we refer you to the Department of Treasury.

d. What process has been developed to request review by DHS of a person’s potential favorable impact on law enforcement? We refer you to DHS.

e. Is a law enforcement interest the only basis for an affected person to be excused from the restrictions imposed by EO13902 or are there other reasons that might be entertained and, if so, what are they? We refer you to DHS.

f. What type of evidence, other than the information provided on Form DS-160 and gathered during the visa application interview, will be required to demonstrate that an individual is not going to be working for the Iranian government, a business entity or other organization in Iran?

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There are no other types of evidence typically needed from applicants in this context, but consular officers will inform individual applicants where additional information is needed from them.

Iranian Students

53. There has been a concerning number of CBP expedited removals for Iranian F-1 students who had been validly issued visas by DOS. It appears to indicate that CBP is not coordinating with DOS. Please confirm:

a. Is DOS coordinating with the Department of Homeland Security in order to address this situation? State and DHS coordinate extensively on all issues related to visas. Information sometimes become available subsequent to visa issuance that can lead to a visa revocation or an inadmissibility determination at a port of entry.

b. When an individual is subjected to Expedited Removal, they incur a 5 year or permanent bar depending on if they are charged under 212(a)(6) or 212(a)(7). If a student, or other visa applicant, wishes to apply for a new visa after an Expedited Removal, what are the considerations of DOS as it reviews the waiver application? If a visa applicant has been subject to a prior expedited removal order, he or she will be ineligible for a visa under INA 212(a)(9)(A)(i) for five years from the date of the first removal. If a visa applicant is ineligible on this basis, no visa may be issued unless the applicant has received consent to reapply. Immigrant visa applicants must apply for consent to reapply using the Form I-212. However, for nonimmigrant visa applicants, consular officers may obtain consent to reapply through the waiver recommendation process under INA 212(d)(3)(A). See 9 FAM 302.11-2(B)(5). When considering a waiver under 212(d)(3)(A) consular officers consider a number of factors per 9 FAM 305.4-3(C), including recency and seriousness of the activity or condition, reason for travel, positive or negative effect of travel on U.S. public interests, and evidence of reformation or rehabilitation. If the basis for removal was INA 212(a)(7), then there will be no ineligibility beyond the five-year bar for the expedited removal under INA 212(a)(9)(A)(i). After the five-year period of ineligibility expires for an applicant previously removed under INA section 212(a)(7), a consular officer will consider whether the applicant overcomes 214(b), if applicable, and attempt to resolve any other derogatory information prior to issuance or refusal.

c. Are the waiver requests reviewed at post or at HQ? NIV waivers of a 212(a) ineligibility must be approved by the Admissibility Review Office (ARO) at DHS upon recommendation from a consular officer.

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Consular officers generally have discretion to recommend waivers to the ARO but may seek an advisory opinion from Consular Affairs.

Proposed Changes to B-1 Regulation

54. On December 24, 2019, State sent a Final Rule for review to the Office of Information and Regulatory Affairs (OIRA) entitled, Visas: Temporary Visitors for Business or Pleasure, RIN 1400-AE99, that has not previously been published in a Unified Agenda.16 This rule is distinct than two other B visa regulations that were included in the Fall 2019 Unified Agenda. Can State please provide a description of what will be included in this Final Rule? The rule would set the scope and procedures for a pilot program under which consular officers would require certain individuals applying for visas as temporary visitors for business or pleasure (B-1/B-2 visas) to post a Maintenance of Status and Departure Bond as determined appropriate by the consular officer as a condition of visa issuance, to ensure the individual will not overstay his or her period of lawful admission.

Medical Treatment and Visitor Visa Eligibility

55. A final rule published in 85 FR 4219 (January 24, 2020) amends 22 CFR 41.31 Temporary Visitors for Business or Pleasure concerning “birth tourism”. The rule states: “[Reporting] from U.S. embassies and consulates has documented trends showing an increasing number of B visa applicants whose stated primary purpose of travel is to give birth in the United States.” (emphasis added).17

a. Can you provide us with the actual numbers of such applications, including the

post and approval rates? Such information is not publicly available, and we are not in a position to share it.

b. Please confirm that this rule relates solely to B-2 visa applicants. The rule relates solely to B nonimmigrant visa applicants.

c. Notwithstanding language discouraging questioning applicants as to whether they are pregnant, the rule allows for such questioning when a consular officer “has a specific articulable reason to believe they may be pregnant and planning to give birth in the United States.” Can State provide examples of specific articulable reasons that would justify this line of questioning? If, for example, a visa applicant has indicated the purpose of travel is for medical travel, the consular officer may ask follow up questions that lead the visa

16 See List of Regulatory Actions Currently Under Review, RIN 1400-AE99, available here: https://www.reginfo.gov/public/jsp/EO/eoDashboard.jsp 17 85 Fed. Reg. 4219 (Jan 24, 2020)

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applicant to state that she plans to travel to the United States is for the purpose of giving birth.

d. The rule states that the presumption of primary purpose “does not apply if a child would acquire U.S. citizenship at birth if born outside the United States.” Does this relief from the presumption apply only where the child would acquire citizenship under INA§320? (In other words, does that mean that the presumption “would apply” if a child would only acquire citizenship under INA§322?) The reference in the rule to situations where the child acquires U.S. citizenship at birth was one example where it would be clear the visa applicant’s primary purpose for travel was not to obtain U.S. citizenship for the child. Any case in which a child would obtain U.S. citizenship without being born in the United States would similarly provide a consular officer a basis for concluding the visa applicant had a primary purpose of travel other than obtaining U.S. citizenship for the child, if the applicant provided an alternative purpose.

56. The “reason to believe” standard is commonly associated with drug trafficking. Guidance in 9 FAM 302.4-3(B)(3)b. states:

“Reason to believe” might be established by a conviction, an admission, a long record of arrests with an unexplained failure to prosecute by the local government, or several reliable and corroborative reports. The essence of the standard is that the consular officer must have more than a mere suspicion; there must exist a probability, supported by evidence, that the alien is or has been engaged in trafficking. You are required to assess independently any evidence relating to a finding of ineligibility.” (Emphasis added).

Extrapolating this language to “birth tourism,” what evidence would be expected to establish “reason to believe [the applicant] will give birth during their stay in the United States” to trigger the presumption that one’s “primary purpose of travel is to obtain U.S. citizenship for a child by giving birth to the child in the United States?”

“Reason to believe” appears in several sections of the INA. Without regard to whether the inadmissibility ground based on a consular officer’s knowledge or reason to believe an individual is or has been an illicit controlled substance trafficker is a good analogy to the “birth tourism” regulation, an alien’s own responses on the visa application or to consular officers in a visa interview could support a determination under that standard.

Reciprocity Review (E.O. 13780)

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57. Executive Order 13780, which was signed by the President in March 2017, required the Department of State to undertake a worldwide review of nonimmigrant visa reciprocity agreements and arrangements. During the October 2019 liaison meeting, State mentioned that “Section 10 of E.O. 13780 mandates that we review all nonimmigrant visa reciprocity agreements and arrangements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and other treatment.” Please confirm:

a. Has State completed the mandated reciprocity review pursuant to the E.O. for all

countries? Yes. b. What is the entity responsible for conducting such review? The Visa Office c. Are there any imminent changes to reciprocity for other countries?

There currently are no plans for decreases to validity or increases in reciprocity fees, relative to the current reciprocity schedules.

d. Is State able to provide advance notice of future increases in reciprocity fees? Overseas missions may, at their discretion, conduct public outreach on upcoming changes.

e. Does State engage in discussions with the countries whose reciprocity schedules are being reviewed to afford them an opportunity to make changes in visa validity or fees before changes are made to reciprocity fees? Yes.

f. Has any review resulted in increased visa duration validity, an increased number of entries, or lower fees for citizens of the countries undergoing review and, if so, which countries? Yes. There were many countries where the review resulted in increased validities or reduced fees. Updates were posted to Travel.State.Gov when they occurred. Brazil is one example where the Department lowered or eliminated previously charged reciprocity fees for work-based visas in some cases of $100 USD after a review of the fees charged by Brazil for equivalent visas. In Burma, we both increased validity for crewmember visas and lowered fees for crewmembers and students.

g. Has reciprocity review resulted in any country changing their visa validity, number of entries or fees, such that they now offer more favorable treatment to U.S. citizens than they had previously? Yes. For example, Jordan lowered fees for tourist visas for American Citizens to match what the United States provided nationals of Jordan. Discussions with the Government of Rwanda led to a visa regime that provided more favorable treatment for U.S. citizens and matched the validity of what the United States offered to Rwandan nationals in visa equivalents.

h. State noted in the October 2019 meeting that “(w)here practicable, the Department reduces visa validity on a proportional basis to approximate the treatment a U.S. citizen would receive for a period of time and fee comparable to the visa application fee (MRV), to avoid the need to charge a reciprocity fee.” Can visa validity be shortened in lieu of charging a reciprocity fee and, if so, what formula is applied in making this determination?

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Yes, we have been able to adjust visa validity in lieu of charging a reciprocity fee in some cases, based on comparing monthly costs.

End.

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