AMERICAN IMMIGRATION LAWYERS ASSOCIATION

NEW YORK CHAPTER

CLE

CONSULAR PRACTICE

December 4, 2017

TOPIC: This informative presentation will provide valuable strategies and helpful guidance for consular practice. Panel members will address various issues including tips and tricks of the DS-160 and DS-260 forms, highlights of recent changes to the FAM, and how to seek review of consular actions.

6:30 pm - 6:35 pm Introduction

6:35 pm – 7:15 pm Topic 1: Tips and Tricks of the DS-160 and DS-260

Steve Pattison, Washington, DC

- DS-160 and DS-260 o Filling in the gaps o What to do when a question on the form is ambivalent o Do I really have to answer this question? o who must fill the form? o To disclose or not to disclose

7:15 pm – 7:50 pm Topic 2: Highlights of recent changes to the FAM

Jan Pederson, Washington, DC

Michael Piston, New York, NY

- The FAM is the bible of consular officers and consular practitioners.

recent changes to the FAM may have profound impact on visa

applicants and immigrants. The presenters will cover some of those

changes that may have significant impact on members’ practices and

their clients.

7:50 pm – 8:25 pm Topic 3: How to seek review of consular actions

Jenny Guilfoyle, Washington, DC

Michael Piston, New York, NY

When consular processes go awry clients and practitioners are left bewildered and wanting for guidance on seeking review. Refusal notices are

often scarce in details and there is no record of proceeding to draw on.

Attorneys should know how to debrief and record their clients’ account of

the event and pursue the matter in search of a favorable review. The

speakers will provide insights to the workings of the visa office and

consular service and identify paths to seek supervisory intervention and

legalnet assistance

8:25 pm – 8:30 pm Q & A

MODERATORS: Steven D. Heller, Lewes, UK & New York, NY

Shavit Yarden, New York, NY

Tips and Tricks of the DS-160/260 The subject of my presentation will be the DS 160/260, and, specifically, tips and tools that attorneys can use to ensure that both forms work in their clients' interests, not against them. Many applicants--and their attorneys--misunderstand the purpose of these forms. They are not designed to provide a platform to explain away any actions or behaviors of the applicants that could lead to visa denial and/or findings of inadmissibility. Rather, their purpose is to provide basic biographical information, identify the applicant's past interactions with U.S. officials, and identify possible grounds of inadmissibility. Attorneys and their clients should resist the temptation to use both forms as a platform to over-explain or argue about actions or omissions the client may have taken or made in an effort to demonstrate that the client is not inadmissible. In most instances, consular officers will not look at these forms until immediately prior to the interview itself, and will not appreciate the inclusion of lengthy additional comments in the drop boxes. Every answer matters; consuls and immigration officers alike can and will use a client's knowingly false statement or answer on both forms as a basis for 6(c) inadmissibility at any point up to and including a final naturalization hearing. A truthful, if prejudicial answer, can be less harmful than an intentionally misleading or inaccurate one. Mistakes on an already submitted DS 160 or 260 need not be prejudicial if they are caught and a subsequent, accurate form is submitted prior to the visa interview itself. Non substantive errors in bio data, dates, etc. can be addressed and acknowledged at the interview by presentation of confirmation of the correct information. New Bad News and Good (old) News regarding the new “90 day rule” The Department of State recently revised its long-standing “30-60 day rule” used to judge whether nonimmigrants actions shortly after entering the U.S. were evidence of misrepresentation in applying for visas and/or admission to the U.S. to simply the “90 day” rule. As the new name implies, the 90 day rule increases the time in which nonimmigrants’ actions will be used to make judgments regarding their intent when entering the U.S. This is very bad news indeed not only for those who engage in unauthorized employment, and who will find that such employment to will create a presumption of misrepresentation when it occurs within 90 days of admission, but also for those who may engage in more innocuous activities in that time frame, such as attending school without CIS permission or even marrying and moving in with their beloved, if he or she happens to be a U.S. citizen or permanent resident. Nevertheless, it is at the same time important to take this opportunity to correct what appears to be widespread misconception of exactly what the old 30-60 day and the new 90 day rule apply to. Contrary to common belief, it does not appear that the 90 day rule considers the mere filing of an application to change nonimmigrant status

nor even to adjust status to permanent resident as evidence, in itself, that the nonimmigrant obtained his visa or admission to the United States by fraud or misrepresentation, so long as the nonimmigrant does not partake of the benefits of such an application prior to its approval LegalNet, and the associated FAM section that lays out the procedures for use of LegalNet The who, what, when, where, why and how of seeking redress from consular actions.

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

NEW YORK CHAPTER

CLE

CONSULAR PRACTICE

December 4, 2017

Moderator/Panel Members: Steven D. Heller & Shavit Yarden

Panel Members: Topic 1: Stephen Pattison Topic 2: Jan Pederson & Michael Piston Topic 3: Jennie Guilfoyle and Michael Piston

INDEX OF HANDOUTS

Tips and Tricks of the DS-160 and DS-260 Sample DS-160 and DS-260 pages AILA Practice Pointer on DS-160 fillins

Highlights of recent changes to the FAM FAM Changes, Annual Review by Jan Pederson Old Rule: 9 FAM 40.63 N4.7 New Rule: 9 FAM 302.94

How to seek review of consular actions

9 FAM 103.4 -- LegalNet Vintage Guidance on LegalNet AILA InfoNet Doc. No. 07041065. (Posted 10/10/13)

Jennie Guilfoyle is the Education and Training Attorney for the Immigration Justice Campaign at the American Immigration Council. Before joining the Council, she spent four years as an Attorney Adviser at the State Department in the Bureau of Consular Affairs, working on issues ranging from citizenship to intercountry adoption. Prior to that, she worked for many years as a Senior Training Attorney at the Catholic Legal Immigration Network, designing and leading in-person and online trainings on a wide range of immigration law topics. She also worked at Church World Service, where she trained refugee resettlement programs on immigration law and program management. She began her legal career as an Equal Justice Works fellow at the New York Association for New Americans, where she represented asylum and VAWA applicants. She holds a J.D. from New York University School of Law, and a B.A. in English from Harvard College. Steven D. Heller is the Director of SDH US Immigration Law, Ltd., a UK-based US immigration law firm established in 2008, and Of Counsel to Chavin Immigration Law Office in London. He currently divides time between the UK and New York. He has been practicing US immigration law since 1992, with particular interest in family matters and inadmissibility issues. Steven has worked in both the public and private sectors, including positions with the US Embassy-London, INS/USCIS, the New York Association for New Americans, and small private law firms in New York, Washington, DC, and London. A graduate of Binghamton University and the Georgetown University Law Center, he has spoken on US immigration matters before various groups and associations, including the American Bar Association, the American Academy of Adoption Attorneys, and AILA. He has been quoted in UK media and appeared on CNN as an expert in US immigration law. He has published articles on US immigration in various journals and is co-author of US Citizenship for Dummies. He is co-chair of the AILA -New York Chapter Consular Liaison Committee and a member of the AILA-EMEA Chapter Consular Liaison Committee. Stephen Pattison is the owner of the Law Offices of Stephen Pattison, LLC in Darnestown, Maryland and represents clients in complex business immigration and consular processing cases. He is a graduate of Southern Methodist University and the University of Texas Law School. Steve spent 28 years with the Department of State as a consular officer and manager and worked in London for Magrath LLP and in Washington D.C. for Maggio and Kattar before opening his own offices in 2014. He is past president of the Rome District Chapter and serves on AILA’s Global Migration Steering Committee and DOS Liaison Committee. Jan Pederson is a senior attorney and shareholder with Maggio Kattar Nahajzer + Alexander in Washington, D.C. She has represented clients in person at 27 consular posts throughout the world during the past four decades and has represented thousands of clients in visa interviews. She was the Senior Editor of the AILA Visa Processing Guide for 12 years and has authored many articles on representing clients before American consular posts and lectured internationally and nationally on the topic of consular processing. She served on the

AILA Access to Counsel Committee for many years and worked on the Petition for Rulemaking on Access to Counsel in the Visa Process. She is a Past President of the Washington, D.C. Chapter of AILA and served as an elected member of the AILA Board of Governors for 18 years. She was appointed to serve on the AILA Liaison Committee to the Visa Office for several years. She has been named as a SuperLawyer and a Best Lawyer by U.S. News & World Report, and her firm was named Immigration Law Firm of the Year for 2016. She holds a JD from Howard University School of Law. J.D . and a BA. .in Economics from the University of Washington. B.A. Economics. She is a member of the bar of the District of Columbia. Michael E. Piston is the senior partner at Piston & Carpenter P.C. and also is of counsel to Allen E. Kaye, P.C. He has practiced immigration law exclusively for over 30 years and has spoken at numerous American Immigration Lawyers Association (AILA) and ILW conferences and workshops. He has also written several articles for the AILA Annual Conference Handbooks and ILW PERM Handbooks. He is admitted to the State Bar of Michigan, the U.S. Courts of Appeals for the Second, Fourth, Sixth, Seventh and Ninth Circuits, U.S. District Courts for the Eastern and Western Districts of Michigan, District of Columbia, Northern District of Illinois, Southern District of New York and the U.S. Supreme Court. He holds a B.G.S. in Economics and Political Science from the University of Michigan and a J.D. from Wayne State University Law School. Shavit Yarden founded Yarden Law Group, LLC as an Immigration law practice, focused primarily on business and investment in 2007, after practicing corporate and business law and serving as a board member of an international corporation for several years in the U.S and abroad. His corporate and business law background and his managerial experience provide the basis for his extensive knowledge of business organizations – vital for effectively representing them. Shavit provides his clients – organizations and individuals – with detailed plans of action to achieve their immigration goals and guides them through the process. Shavit is the Program Director of the City University of New York’s immigration law studies at the School of Professional Studies. He is licensed to practice law in the State of New York and admitted to the bars of the Federal District Court for the Southern District of New York and the Eastern District of New York. Shavit earned a LL.M degree from the University of Pennsylvania Law School and an LL.B. and B.A (Economics) from Haifa University.

Steven Heller

1

Using the Open-Answer Boxes of the DS-160 to Make Your Case

Practice Pointer

Melissa Chavin, Chavin Immigration Law Office, London

AILA RDC EMEA Spring Conference, Brussels, May 2-5, 2017

(Updated November 21, 2017)

A thoughtful attorney keeps the key elements of the applicant’s case in mind when filling in the online non-immigrant visa application DS-160. “Key elements” are (1) facts that qualify the client for the visa and (2) equities that counter any challenging aspects of the case. The attorney makes sure these key elements shine through in the DS-160 using all of its facets: answers to dropdown menus, fill-in the blank questions, as well as, open-answer boxes. The DS-160 is often the consular officer’s first introduction to the case. It should be looked at as a summary of the case, arriving in an order and format with which the CO is familiar.

The samples below give a flavour for an effective length of an open answer response as well as content. They also illustrate when such boxes reveal themselves in the online DS-160.

Sample 1 Minor Criminal Record Explanations

Two Self-Defense Explanations for Two Police Encounters that Resulted in No Criminal Record

– Written Mostly Pro Se – Interview Result: B Visa Approved for Motorcycle Trips

When an applicant answers “yes” that they have had a law enforcement encounter, an open-answer box opens for them to write an explanation. Here is an example of a client’s pro se written explanation of two such encounters, where the interview for a B visa for long motorcycle trips resulted in a quick approval.

A DRIVER IN A CAR REAR-ENDED MY MOTORCYCLE AT TRAFFIC LIGHTS IN LONDON. ON INFORMING THE DRIVER THAT I WAS REPORTING THE ACCIDENT TO THE POLICE FOR INSURANCE PURPOSES, HE ATTACKED ME WITH A KNIFE. HAVING RESTRAINED HIM, I DIALED 999 FOR POLICE ASSISTANCE. UPON ARRIVAL, THE POLICE ARRESTED US BOTH. AFTER TAKING STATEMENTS THEY RELEASED ME WITH NO FURTHER ACTION.

UPON LEAVING A RESTAURANT IN WINDSOR, ENGLAND MY PARTY WAS ATTACKED BY THE DRUNK EX-HUSBAND OF ONE MY PARTY. I RESTRAINED HIM, AND WE LEFT THE SCENE. I PASSED HIM IN THE STREET THE NEXT MORNING WHILST HE WAS STILL DRUNK, AND HE CLAIMED HE WAS GOING TO REPORT ME TO THE POLICE. AS WE HAPPENED TO BE OPPOSITE A POLICE STATION, I ESCORTED HIM INTO THE STATION. ONCE THERE, HE CLAIMED I HAD ATTACKED HIM. AS I HAD NO WISH TO PRESS ANY CHARGES, THEY HAD TO ARREST ME. UPON TAKING WITNESS STATEMENTS, I WAS RELEASED WITH NO FURTHER CHARGE.

2

Samples 2 and 3 for Gaps in Employment

(O-1A Extraordinary Ability and B-2 for Medical Reasons)

A recently retired consul general that our Brussels panel spoke to recommended not to write “unemployed,” for any gaps in time that one may be unemployed in the course of a career. But if really needed to explain a gap in work, one can offer an explanation:

Here is an example of text used for an O-1A visa applicant with a gap in employment before his application was filed:

Primary Occupation: Unemployed (O-1A Extraordinary Ability)

Explain:

I RESIGNED TO PREPARE TO START NEW JOB AT [NAME OF NEW PETITIONING EMPLOYER]. I RECEIVED THE OFFER FROM [NEW EMPLOYER IN THE U.S.] ON [DATE].

Primary Occupation: Unemployed (B-2 for Medical Tourism)

Here the open answer box about unemployment status is convenient for setting forth the important elements of a B2 for medical tourism: (1) the financial information on how the treatment will be funded, (2) the cost of the treatment, as well as (3) the purpose of the visit to the United States: the doctor’s diagnosis and treatment plan.

Briefly Describe your Duties:

I AM TEMPORARILY NOT WORKING, AS I HAVE A DIAGNOSIS OF [X], [Y], AND [Z], RESULTING FROM [Q] THAT BEGAN AFTER [MEDICAL METAL] WAS PLACED IN MY JAWLINE IN [YYYY]. I HAD SURGERY IN AUGUST [YYYY] [FOR THE PURPOSE OF REMOVING THE DEBILITATING METAL IMPLANTS] UNDER THE DIRECTION OF MY DOCTOR ([NAME OF DOCTOR]). I WOULD LIKE TO RECOVER IN A ONE YEAR PROGRAM UNDER THE CARE OF DR. [A] AT THE [B] [WELLNESS CENTER], [CITY, STATE].

I WILL FINANCE THE COST OF THE TREATMENT WITH FUNDS FROM [SOURCE] IN THE MAIN: $[AMOUNT] (US$ EQUIVALENT) CLEARED FUNDS INITIALLY WITH MORE FUNDS (AN ADDITIONAL $[AMOUNT] IN 2017) TO FOLLOW, AND MY OWN SAVINGS (US$[AMOUNT] USD EQUIVALENT). THE TREATMENT COST ESTIMATE IS US$[AMOUNT] FOR THE YEAR. MY PRIOR SALARY WAS $[AMOUNT] (US$ EQUIVALENT) ANNUALLY. I WORKED IN THE [INDUSTRY] SECTOR, [DESCRIPTION OF WORK DUTIES]. I STOPPED WORK DUE TO MY ILLNESS IN THE SUMMER OF [YYYY-1]. SINCE I WAS A HIGH PERFORMING MEMBER OF SENIOR STAFF, MY FORMER DIRECTOR IS KEEN TO SEE WHAT OPPORTUNITIES HE CAN HELP FACILITATE FOR MY CAREER WHEN I AM RECOVERED. I OWN MY HOME IN [COUNTRY]. IT IS RENTED NOW TO FUND MY MORTGAGE PAYMENTS ON IT.

3

Sample 4 for O-1

Adding details to open boxes under “briefly describe your duties,” under employment entries gives an opportunity to summarize essential elements of the O-1A application for the consular officer. These help the applicant get across evidence for showing Employment in a Critical or

Essential Capacity by making reference to the prominence of their employers. One can also hit the evidence for Original Contributions to the Field – by pointing out why that contribution is original and why it is of major significance to the field, right in the job duty description. Summary of petition evidence in the DS-160 is especially helpful now when some posts feel that only a “prima facie case” of O-1 visa application qualification is shown by USCIS petition approval. According to one European Visa Chief speaking at a recent AILA conference, they are looking at cases without necessarily having the petition yet in PIMS, giving themselves a few hours in the morning before an afternoon interview to “research” the visa applicants.

For an Extraordinary Animal Zoo Keeper

Briefly Describe your Duties:

I LED THE STAFF IN THE BIRTH AND INTEGRATION INTO THE HERD OF THE FIRST CALF AT THE PARK, WHICH WAS AN ORIGINAL CONTRIBUTION TO THE FIELD OF [SPECIFY ANIMAL TYPE “X”] ZOO KEEPING IN ENGLAND AND EUROPE, AS THIS HERD HAD PRIOR HISTORY OF LOST [BABY X]. THE HERD HAD NEVER LIVED AMONG BABY [Xs] AND CONSIDERED THE NEWBORN A THREAT. THE NEWBORN IS A TOP 5% CONTRIBUTION TO THE EUROPEAN BREEDING PROGRAM [Xs] BECAUSE OF HER GENETIC HERITAGE, ONLY ONE GENERATION FROM WILD. DAY TO DAY: RESPONSIBLE FOR FULL CARE AND WELL-BEING OF [ZOO NAME’S] FIVE [Xs]. I MANAGED THE STAFF OF THE [X] DEPARTMENT.

Sample 5 for Minor Overstay

When there is derogatory material for a visa application, a contrite admission of the facts and statement of regret can go a long way. When asked whether the applicant has ever been an overstay, unlawfully present, or otherwise violated the terms of a U.S. visa, an open answer box appears, if the answer is “yes.” Here is one explanation of an overstay that helped lead to an approved B visa.1

ALTHOUGH MY WIFE AND I HAVE TRAVELLED REGULARLY TO THE US AND ALWAYS ADHERED TO THE TERMS OF OUR ADMISSION, LAST YEAR WE ACCIDENTALLY OVERSTAYED BY 3 DAYS. WE ARRIVED IN FLORIDA ON MARCH 9 AND LEFT ON JUNE 9. IT WAS 3 MONTHS, BUT AS MARCH AND MAY HAVE 31 DAYS, IT WAS ACTUALLY 93 DAYS. WE MISCALCULATED THE 90 DAYS, AND I AM MOST APOLOGETIC FOR THIS ERROR. THESE WERE THE TICKETS WE ARRIVED ON, AND WE WEREN'T QUESTIONED ABOUT IT AT ENTRY. WE DIDN'T PAY ATTENTION TO THE DATE STAMPED INTO OUR PASSPORTS. WE ARE TERRIBLY EMBARRASSED. WE DO ENJOY OUR TRIPS TO THE US AND HOPE YOU UNDERSTAND AND FORGIVE OUR ERROR.

1 With thanks for this contribution from London based attorney Steven D. Heller of SDH US Immigration Law Ltd.

4

Sample 6 for (Recent!) Prior Visa Refusal

The open explanation box that appears in answer to a “yes” on the question of whether an applicant has ever been refused a U.S. visa is an excellent opportunity to introduce why an applicant had emphasized the wrong evidence in a recently denied B visa application. This emphasis likely led to a B visa ineligibility due to lack of adequate ties to home country.

The lawyer spoke to the client and found that he had emphasized a job with inconsistent hours and income, instead of the client’s true passion, his budding film career. The unimportant job only funded his expensive film-making costs. He was a student at a prestigious university film school and already worked with a famous director in his home country. Neither of these facts had come out in the first application since the client was trying more to look like everyone else with a regular job. Emphasis instead on his true passion and his prestigious work in the field resulted in a B visa approval on the second go around (after only a couple of months’ wait), despite a US citizen girlfriend residing in his home country too.

MY APPLICATION WAS INELIGIBLE UNDER 214(B). ON MY APPLICATION, I MISTAKENLY EMPHASIZED MY IRREGULAR EMPLOYMENT. I EARN A SALARY NOW ONLY TO FINANCE MY TRUE CAREER AND TIE TO [HOME COUNTRY]. I AM A FILM STUDENT AT THE PRESTIGIOUS [ABC] UNIVERSITY [XYZ] SCHOOL OF FILM AND TELEVISION. I AM ALSO MAKING FILMS WITH THE WORLD-FAMOUS [NATIONALITY] FILM DIRECTOR [NAME]. I PRODUCED THE “BEHIND THE SCENES” FILM FOR HIS AWARD-WINNING FEATURE FILM [NAME OF FILM], THE STORY OF […]. [NAME OF APPLICANT’S COUNTRY] WILL BE THE BEST STARTING PLACE FOR MY FILM MAKING CAREER DUE TO MY NETWORK FROM THE UNIVERSITY AND PROFESSIONAL COLLEAGUES LIKE MR. [NAME OF FILM DIRECTOR].

The client brought evidence to support these claims, like a letter from the famous film director, promotional material about the “Behind the Scenes” film that the applicant produced, and the applicant’s transcript at his film school.

Page 129

Updates to 9 FAM: 2017 Annual Surveyby Jan Pederson and Negar Mortazavi

**********

Jan Pederson is a senior attorney and shareholder with Maggio Kattar Nahajzer +Alexander in Washington, D.C. She has represented clients in person at 27consular posts throughout the world during the past four decades and hasrepresented thousands of clients in visa interviews. She was the Senior Editor ofthe AILA Visa Processing Guide for 12 years and has authored many articles onrepresenting clients before American consular posts and lectured internationallyand nationally on the topic of consular processing. She served on the AILAAccess to Counsel Committee for many years and worked on the Petition forRulemaking on Access to Counsel in the Visa Process. She is a Past President ofthe Washington, D.C. Chapter of AILA and served as an elected member of theAILA Board of Governors for 18 years. She was appointed to serve on the AILALiaison Committee to the Visa Office for several years. She has been named as aSuperLawyer and a Best Lawyer by U.S. News & World Report, and her firm wasnamed Immigration Law Firm of the Year for 2016.

Negar Mortazavi is an associate attorney with Maggio Kattar Nahajzer +Alexander in Washington, D.C., specializing in consular processing. She receiveda bachelor’s degree in Foreign Affairs and Middle Eastern Studies from theUniversity of Virginia and a law degree from Boston University School of Law.She is an active member of the American Immigration Lawyers Association. Sheis a contributor on Huffington Post and writes about immigration and consularprocessing issues.

The authors wish to thank AILA member Eugene Flynn for generously sharing hiscomplete library cataloguing all changes in the FAM since the beginning of time,and Madelaine Gill, an indefatigable paralegal at Maggio-Kattar Nahajzer +Alexander who tireless edited the paper.

**********The Foreign Affairs Manual (FAM)[1] is the compilation of directives

applicable to the Department of State (DOS). DOS guidance on substantive andprocedural adjudications of visa applications and waivers is set forth in Volume 9(Visas) of the FAM, and substantive and procedural guidance relating tocitizenship and nationality is set forth in Volume 7 of the FAM. The FAM isavailable online; however, many sections are listed as “unavailable.” TheAdministrative Procedures Act (APA)[2] exempts rules relating to a foreignaffairs function of the United States from the procedural rulemaking requirementsunder the APA. Therefore, a successful challenge to a FAM Note is a dauntingundertaking, although arguably many FAM Notes, which are given the force andeffect of law, have little or nothing to do with foreign policy.

In recent years, changes to the FAM Notes appear to have increasedsubstantially and are published without stakeholder input or comment prior topublication.[3] They often affect pending cases with retroactive impact. Manychanges substantially impact the rights of those over whom the Department ofState exercises authority.

Page 130In addition to stealth FAM Notes, we now have the overlay of President

Trump’s Executive Order 13788 of April 28, 2017, captioned “Buy American andHire American” (BAHA).[4] The impact of this order is being felt worldwide inthe adjudication of employment-based nonimmigrant visa (NIV) petitions.Although the executive order targets H-1B petitions, visas are being denied to L-1B, O-1, and H-1 workers by consular officers with comments such as,“Americans can do this job”; “the salary is too low”; or, in the case of O-1s, thatthe applicant is not “extraordinary” enough. After the brief visa interview, theemployment-based NIV petition is either denied under Section 214(b) of theImmigration and Nationality Act (INA)[5] for failure to meet the substantive visaeligibility requirements, or returned to U.S. Citizenship and Immigration Services(USCIS) for revocation. Even if a returned petition is reaffirmed by USCIS, thelengthy delays in the process often mean great financial losses to the employer andthe loss of the opportunity to the foreign national. Even though BAHA is not aground of inadmissibility under INA §212, denials are likely to be entered under§214(b).

This article is a summary of those FAM changes which are thought to have themost impact on the representation of clients in the visa process. Attorneys arecautioned to consult the FAM, as well as the post website, and to seek input fromcolleagues on the American Immigration Lawyers Association (AILA) RomeChapter Listserv. The AILA Rome Chapter publishes the “Friday FAM,”[6] withhidden gems from the FAM, as well as updates.

NONIMMIGRANT VISASThe 30/60-Day Rule Evolves into the 90-Day Rule

Attorneys are concerned with the change in the 30/60-day rule, whichtransformed into the 90-day rule on September 1, 2017.[7] While the rulecertainly mandates that attorneys conservatively advise clients on undertakingactivities that could be deemed inconsistent with their visa status, anecdotalevidence suggests that the 30/60-day rule is not frequently directly applied byconsular officers or by USCIS officers. Under the 30/60-day rule, consularofficers likely found it less burdensome to enter a §214(b) finding, if such appliedto the visa category for which a subsequent application was made, because anadvisory opinion was required from the Visa Office if the perceived inconsistentconduct occurred within 60 days of admission to lodge a finding ofinadmissibility. Under the 90-day rule, only an informal advisory opinion from theAdvisory Opinions Division of the Department of State is required before aviolation resulting in a finding of inadmissibility for fraud or misrepresentationunder INA §212(a)(6)(C)(i) can be entered. It is important to note

Page 131that the finding of a violation results in a finding of inadmissibility under §212(a)(6)(C)(i) of the INA, which is a permanent ban to inadmissibility. Of someconcern is that the advisory opinion can be informal if the inconsistent conductoccurs within 90 days. As of this writing, the section of the FAM governingadvisory opinions is unavailable online. If the inconsistent conduct occurs after 90days of admission, there is no presumptive violation, but a finding ofinadmissibility may be made after a formal advisory opinion is received from theVisa Office. Under the prior FAM Note, the presumption of inconsistent conductrising to fraud or misrepresentation disappeared after 60 days.

In recent times, this rule has been applied to pregnant women who have babiesin the United States while in B-2 status. Typically, the stay in the United States isrelatively short; there is no overstay and the woman pays all medical bills. Someconsular officers believe that failure to disclose that one of the purposes of travelto the United States was to deliver a baby amounts to fraud or misrepresentation.The reports of tourist birth refusals for subsequent B-2 visas are on the increase.Often the subsequent visa is denied under §214(b), rather than the morepaperwork heavy INA§212(a)(6)(C)(i) finding. Our firm has a client, who, alongwith her spouse and children, have been denied tourist visas eight times based onthe client’s giving birth in America on a tourist visa. Applicants found to havereceived any sort of government assistance in connection with the birth of an

American citizen child are likely to experience that the door to America is firmlypadlocked, sometimes even after the government assistance money is repaid.

The rule has also been applied to students who enter as tourists and apply tochange status from tourist to student within 90 days (previously 30 days), eventhough the student does not attend school prior to the grant of a change of statusfrom B-2 to F-1. The student, delighted with the USCIS grant of permission toattend their dream college, travels home for Christmas to see their parents. Theythen apply for a student visa to return to America and discover that they are barredfor life from entering the United States based on a finding of misrepresentation onthe tourist visa application. Although eligible for a waiver of inadmissibility, theprocessing times for a nonimmigrant waiver are so long, that, even if approved,the student will likely miss a year or so of school. Thus, prior to filing anextension or change of status for a client, it is important to take the long view ofthe client’s plans to determine whether obtaining an extension or change of statuswill be a pyrrhic victory. Consular officers have historically taken a dim view ofchanges of status in the United States (particularly from B-2 to F-1), so caution isadvised. There have also been instances in which a dependent spouse has beendenied an F-2 visa where the principal alien has changed status from B-2 to F-1 inthe United States.

Careful analysis is also required where a change of status from B-2 to H or L iscontemplated. In many instances, prudent lawyering suggests that the client applyfor the new visa abroad with an explanation of the change in plans.

Page 132Moving the starting line from 30 to 90 days will impact global mobility for

some executives. Much depends on accurately diagnosing a possible issue,analyzing it, and preparing the client for a visa interview.

Applications for extensions or change of status or adjustment of status within 90days are not necessarily damning; rather, making such applications give rise to arebuttable presumption of inconsistent conduct. Prudent lawyering requires that allclients be cautioned not to engage in any conduct that would be deemedinconsistent within 90 days of admission.

The new 90-day rule provides as follows:

(a) (U) . . . , if an alien violates or engages in conduct inconsistent withhis or her nonimmigrant status within 90 days of entry, as described insubparagraph (2)(b) below, you may presume that the applicant'srepresentations about engaging in only status-compliant activity were

willful misrepresentations of his or her intention in seeking a visa orentry. To make a finding of inadmissibility for misrepresentation basedon conduct inconsistent with status within 90 days of entry, you mustrequest an AO from CA/VO/L/A. As with other grounds that do notrequire a formal AO, the AO may be informal. See 9 FAM 304.3-2.

(b) (U) For purposes of applying the 90-day rule, conduct that violatesor is otherwise inconsistent with an alien’s nonimmigrant statusincludes, but is not limited to:

(i) (U) Engaging in unauthorized employment;

(ii) (U) Enrolling in a course of academic study, if such study is notauthorized for that nonimmigrant classification (e.g. B status);

(iii) (U) A nonimmigrant in B or F status, or any other status prohibitingimmigrant intent, marrying a United States citizen or lawful permanentresident and taking up residence in the United States; or

(iv) (U) Undertaking any other activity for which a change of status oran adjustment of status would be required, without the benefit of such achange or adjustment.

(3) (U) After 90 Days: If an alien violates or engages in conductinconsistent with his or her nonimmigrant status more than 90 days afterentry into the United States, no presumption of willful misrepresentationarises. However, if the facts in the case give you reasonable belief thatthe alien misrepresented his or her purpose of travel at the time of thevisa application or application for admission, you must request an AOfrom CA/VO/L/A. (See 9 FAM 302.9-4(C)(2)).

Page 133It should be noted that the fact that an alien’s subsequent actions are inconsistent

with those stated “at the time of visa application or admission or in a filing for animmigrant benefit does not necessarily prove that the alien’s intentions weremisrepresented at the time of application or entry.”[8] The officer is asked to“consider carefully the precise circumstances of the change in activities whendetermining whether the applicant made a knowing and willful misrepresentation.To conclude there was a misrepresentation, the [officer] must have direct or

circumstantial evidence sufficient to meet the ‘reason to believe’ standard, whichrequires more than mere suspicion but less than a preponderance of theevidence.”[9]

For comparison, the prior FAM Note read, in pertinent part, as follows:

(g) (U) Applying the 30/60 Day Rule:

(1) (U) In General:

(a) (U) In determining whether a misrepresentation has been made,some of the most difficult questions arise from cases involving aliens inthe United States who conduct themselves in a manner inconsistent withrepresentations they made to the consular officers concerning theirintentions at the time of visa application or to immigration officers whenapplying for admission. Such cases occur most frequently with respectto aliens who, after having obtained visas as nonimmigrants, either:

(i) (U) Apply for adjustment of status to permanent resident; or

(ii) (U) Fail to maintain their nonimmigrant status (for example, byengaging in employment without authorization by DHS).

(b) (U) To address this problem, the Department developed the 30/60-day rule. This rule is intended to facilitate adjudication of these types ofcases consistent with the statutory mandates.”

(c) (U) Aliens who apply for adjustment or change of status pursuant tothe INA are within the jurisdiction of the United States Citizenship andImmigration Services (USCIS) unless the application is abandoned uponthe departure of the alien from the United States. If you become awareof derogatory information indicating that an alien who has applied toUSCIS to adjust to immigrant status or change nonimmigrant status in theUnited States may have misrepresented his or her intentions to you at thetime of visa application or to the immigration officer at the port of entry,you should bring the derogatory information to the attention of theappropriate USCIS office that has jurisdiction over the adjustment orchange of status application. Do not request an advisory opinion fromthe Advisory

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Opinions Division (CA/VO/L/A) in these cases, because it would notbe binding on USCIS.

(d) (U) With respect to the second category referred to above,nonimmigrant visa holders who fail to maintain their nonimmigrantstatus, the fact that an alien's subsequent actions are other than as statedat the time of visa application or admission does not necessarily provethat the alien's intentions were misrepresented at the time of applicationor entry. You should recognize that the precise circumstances underwhich the change in activities have an important bearing on whether aknowing and willful misrepresentation was made. The existence of amisrepresentation must therefore be clearly and factually established bydirect or circumstantial evidence sufficient to meet the "reason tobelieve standard. Although indeed more flexible than the judicialbeyond reasonable doubt standard demanded for a conviction in court, areason to believe standard requires that a probability exists, supportedby evidence which goes beyond mere suspicion.

(2) (U) Applying 30/60 Day Rule When Alien Violates Status: Youshould apply the 30/60-day rule if an alien states on his or herapplication for a nonimmigrant visa, or informs an immigration officerat the port of entry (POE), that the purpose of his or her visit isconsistent with that nonimmigrant status and then violates such status by:

(a) (U) Actively seeking unauthorized employment and, subsequently,becomes engaged in such employment;

(b) (U) Enrolling in a full course of academic study without the benefitof the appropriate change of status;

(c) (U) Marrying and taking up permanent residence; or

(d) (U) Undertaking any other activity for which a change of status or anadjustment of status would be required, without the benefit of such achange or adjustment.

(3) (U) Inconsistent Conduct Within 30 Days of Entry: If an alienviolates his or her nonimmigrant status in a manner described in 9 FAM

302.9-4(B)(3) paragraph g(2) within 30 days of entry, you may presumethat the applicant's representations about engaging in status-compliantactivity were misrepresentations of his or her intention in seeking a visaor entry. For a finding of an inadmissibility for inconsistent conductwithin 30 days of entry, you must request an AO from CA/VO/L/A.

(4) (U) After 30 Days But Within 60 Days: If an alien violates his or hernonimmigrant status more than 30 days but less than 60 days after entryinto the United States, no presumption of misrepresentation

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arises. However, if the facts in the case give you reasonable belief thatthe alien misrepresented his or her intent, then you must give the alienthe opportunity to present countervailing evidence. If you do not findsuch evidence to be persuasive, you must request an AO fromCA/VO/L/A. (See 9 FAM 302.9-4(C)(2)).

(5) (U) After 60 Days: If an alien violates his or her nonimmigrantstatus more than 60 days after admission into the United States, theDepartment does not consider such conduct alone to constitute a basisfor an INA 212(a)(6)(C)(i) inadmissibility.

h. (U) Evidence of Violation of Status:

(1) (U) To find an alien inadmissible under INA 212(a)(6)(C)(i), theremust be evidence that, at the time of the visa application or entry into theUnited States, the alien stated orally or in writing to a consular orimmigration officer that the purpose of the visit to the United States wasother than to work or remain indefinitely. Ordinarily, such evidencewould be in the form of an admission, from information taken from thealien's nonimmigrant visa (NIV) application, or a report by animmigration officer that the alien made such a statement (e.g., as wouldbe found on the DHS Form I-275, Withdrawal of Application/ConsularNotification).

(U) NOTE: For all findings of inadmissibility under the 30/60-dayguidelines described in section g, above, you must request an AO fromCA/VO/L/A.

(2) (U) The burden of proof falls on the alien to establish that his or hertrue intent at the time of the suspected misrepresentation waspermissible in his or her nonimmigrant status. In the absence of anyfurther offering of proof by the alien to rebut the presumption, a findingof ineligibility will result. You must give the alien the opportunity torebut the presumption by presentation of evidence to overcome it.

(a) (U) If you are satisfied that the presumption is overcome, and thealien is otherwise eligible, process the case to conclusion.”

F-1 Visas and Student MattersStudents and Their Intent

On August 8, 2017, the FAM Notes were revised[10] to instruct consularofficers on how to determine whether a student (F-1) applicant possesses aresidence abroad that she or he has no intention of abandoning, given that students’typical youth often means they are young, single, unemployed, and have noproperty. Concern has been expressed that the prior guidance was more expansivein interpreting the intent of students. Both the old and the new FAM Note counselthat the immediate intent of a

Page 136student to depart from the United States at the conclusion of the course of studyand Optional Practical Training (OPT) is the determinative factor. The fact that thepresent intention to depart the United States is subject to change in the future is nota reason to deny the visa. The new note eliminated an express recognition that theresidence abroad requirement for student visas inherently differs from the contextfor B visitors and instead links the reader to the general residence abroad rules.Some officers may interpret the elimination of the inherent differences inresidence abroad determinations for students and other nonimmigrants as a signalto adjudicate student visas under stricter standards.

9 FAM 41.61 N52 (former FAM Note published on February 17, 2005)provided:

(CT:VISA-706; 02-17-2005) The context of the residence abroadrequirement for student visas inherently differs from the context for Bvisitor visas or other short-term visas. The statute clearly pre-supposesthat the natural circumstances and conditions of being a student do not

disqualify that applicant from obtaining a student visa. It is natural thatthe student does not possess ties of property, employment, familyobligation, and continuity of life typical of B visa applicants. These tiesare typically weakly held by student applicants, as the student is oftensingle, unemployed, without property, and is at the stage in life ofdeciding and developing his or her future plans. This general conditionis further accentuated in light of the student’s proposed extendedabsence from his or her homeland. (See 9 FAM 41.11 N2.) Nonetheless,the Consular Officer must be satisfied at the time of application for avisa that an alien possesses the present intent to depart the U.S. at theconclusion of his or her studies. That this intention is subject to changeor even likely to change is NOT a sufficient reason to deny a visa.

9 FAM 402.5-5(E) (1) (b) (current FAM Note published on 8/8/17)provides:

b. (U) Examining Residence Abroad: General rules for examiningresidence abroad are outlined in 9 FAM 401.1-3(F) (2). If you are notsatisfied that the applicant’s present intent is to depart the United Statesat the conclusion of his or her study or OPT, you must refuse the visaunder INA 214(b). To evaluate this, you should assess the applicant’scurrent plans following completion of his or her study or OPT. Thehypothetical possibility that the applicant may apply to change or adjuststatus in the United States in the future is not a basis to refuse a visaapplication if you are satisfied that the applicant’s present intent is todepart at the conclusion of his or her study or OPT.

Parents of Minor Students (F-1)A hidden gem, tucked in as a phrase in 9 FAM 402.2-4(B)(5), is a provision

that permits parents of minor children in F-1 status, who are otherwise eligible, tobe issued B-2 visas to supervise their minor children in the United States. This isa

Page 137welcome addition and prevents parents from having to independently qualify foranother nonimmigrant status in order to supervise their children. Previously, suchparents were often required to squeeze into another visa category, such as F, E, H,L, or O, simply to be with their minor children during the school year.

Sanctions and Iranian Students9 FAM 302.14 limits the eligibility of Iranian students to undertake certain

courses of study in the United States. On December 20, 2016, the FAM waschanged to state that Iranian students who seek to enter the United States to“participate in coursework at an institution of higher education … to prepare …for a career in the energy sector of Iran or in nuclear science or nuclearengineering or a related field in Iran” are ineligible for a visa or admission to theUnited States.[11] Energy sector is defined to “include activities to developpetroleum or natural gas resources, or nuclear power in Iran, but does not includealternative energy resources, such as electric, solar, or wind power.”[12]

These guidelines have been interpreted very broadly to prohibit the issuance ofa student visa to an Iranian lawyer coming to law school in the United Statesbecause she had done legal work for the National Iranian Oil Company (NIOC);even though the course of study was not prohibited, apparently the consular officerassumed she would return to Iran and do legal work for NIOC.

In an attempt to avoid potential roadblocks, it is imperative for attorneys to geta full picture of the applicant’s past and future work in the area of study intendedin the United States, and even the specific course requirements for their intendedarea of study.

B-2 Visas: Usage, Eligibility, and ValidityB-2 Visas for a Short Course of Study Endangered

The FAM has long authorized B-2 visas for persons whose principal purpose oftravel is tourism, but who also plan to undertake a short course of study. Wetraditionally think of our Japanese clients who come to tour America for a summerand include English studies in the travel to better appreciate the American culturaland travel experience.

However, clients have experienced B-2 denials when the definition of “shortcourse of study” is analyzed. The program of study does not have to lead to adegree; thus, programs that offer an intensive course in the area of mid-levelexecutive skills, such as the Harvard Executive Master of BusinessAdministration (MBA) program that issues a certificate of completion of anacademic program of study, would not qualify for a B-2 visa if the programconsists of at least 18 clock hours of attendance per week if the dominant part ofthe course of study consists of classroom instruction, or consists of 22 clock hoursper week if the dominant part of the course of study

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consists of laboratory work.[13] Thus, if a certificate of completion is issued,even though the classroom hours were less than 18 or 22 hours per week, a B-2cannot be used. The FAM Note also prohibits the use of a B-2 visa to attendseminars or conferences that are required to earn a degree in a foreign country orin the United States. The key to understanding the distinction is that a “full courseof study” triggering a B-2 refusal does not have to be a course of study offering adegree and that many academic short-term intensive courses may not qualify foreither a B-2 or F-1 visa.

B-1 Visa Usage Clarified and DefinedOn February 22, 2017, 9 FAM 402.2-5(C)(7) was amended to clarify that, in

addition to applicants who are seeking to establish a qualifying E-2 enterprisebeing eligible for B visas, applicants who are pursuing an EB-5 immigrant visamay be issued B visas to examine or monitor potential qualifying investments aslong as the applicant is otherwise eligible for a B visa. While this is a welcomechange, given the multi-year EB-5 process, it would have been helpful ifprospective E-1 treaty traders and prospective participants in incubator oraccelerator programs had been included. It is noteworthy that USCIS includesacceptance into an incubator or accelerator program as the proper usage of a B-1visa.[14]

While inclusion of fact-specific scenarios in the B-1 eligibility FAM Notes iswelcome, there is concern that overworked visa officers looking at waiting linesextending for what looks like eternity may interpret a situation not specificallyincluded as being excluded. The inclusion of other B-1 situations should besubmitted by attorneys to the Visa Office, as it is very receptive to suggestions.

B-2 Visa Eligibilities ClarifiedDOS has added some very helpful FAM Notes in this category that have proven

valuable in presenting cases at consular posts. In the past, many consular officerspresumed that there was a high risk in issuing visas to people who might marry inthe United States. Some of the gems include:

Fiancé(e)s of U.S. Citizens and Lawful Permanent Residents[15]

1. The fiancé(e) of a U.S. Citizen (USC) or lawful permanent resident (LPR)may be issued a B-2 visa to marry in the United States if the consular officeris satisfied that the fiancé(e) will depart from the United States soon after themarriage.

2. A B-2 may be issued to a person coming to the United States:1. To meet the family of the fiancé(e); or2. To become engaged; or

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3. To make wedding arrangements (e.g., a fitting at Vera Wang); or4. To renew a relationship with the prospective spouse.

Fiancé(e)s of Nonimmigrant Aliens in the United States

This provision is most helpful to applicants from countries where it is difficultfor the nonimmigrant fiancé(e) in the United States to depart from the United Statesto marry, such as citizens of Iran and Syria. It also eliminates the need for theapplicant to rearrange their career and life plans to fit into another visa categoryto qualify for another type of visa when the primary purpose of coming to theUnited States is to marry a nonimmigrant in valid nonimmigrant status. However,if the principal alien’s status requires passing muster under §214(b), the visaapplicant must also pass muster under §214(b) (e.g., F, J, M, and P). This gem,added on November 18, 2015,[16] provides:

Fiancé(e)s who establish a residence abroad to which they intend toreturn, and who are otherwise qualified to receive visas, are eligiblefor B-2 visas if the purpose of the visit is to marry a nonimmigrant alienin the United States in a valid nonimmigrant F, H, J, L M, O, P, or Qstatus. You should advise the fiancé (e) to apply soon after the marriageto the nearest office of Department of Homeland Security (DHS) torequest a change in nonimmigrant status to that of the alien spouse. Bstatus is not appropriate if the fiancé (e) intends to remain in the UnitedStates after admission and adjust status to immigrant status, or intends toabandon the residence abroad after marrying and change to a non-immigrant status that does not require such a residence (adjust statusmeans to apply for immigrant status while changing status means toapply for a different non-immigrant status).

EMPLOYMENT-BASED VISASEmployment on Validity of H-1B Visas

On August 9, 2017, the FAM was revised to clarify that if there are no materialchanges in the terms and conditions of the H-1B worker’s employment, petitionersare not required to file an amended petition. If an employee’s place of employmentmoves within the same geographical area, an amended petition is not required.“Geographical area” is defined as “the area within normal commuting distance ofthe place of employment or within the same Metropolitan Statistical Area.”[17]

The revised section at 9 FAM 402.10-8(G)(3) provides guidelines to consularofficers on how to adjudicate H-1B applications where the situation varies fromthe statements on the approved petition. If a consular officer becomes aware thatan applicant’s place of employment has changed, the officer must either offer the

Page 140petitioner the ability to address this matter (such as by amending the existingpetition or filing a new one) or verify the petitioner has taken the steps to do so.[18] Accordingly, consular officers are instructed to enter an INA §221(g) refusalwhere the geographical area of the applicant’s place of employment has changedsince the petition was submitted, until the petitioner has provided a copy of aUSCIS notice of the receipt that an amended or new petition has been filed.[19]Even if the amended or new petition has not yet been approved, such casesnecessitate processing until conclusion based on the receipt notice.[20]

E-2 VisasBAHA

It should be noted that on August 9, 2017, the FAM Note on E visas[21] wasamended to include the Buy American Hire American (BAHA) Executive Orderlanguage, which could mean that E-2 visa applications for both investors andemployees will require much more evidence that the investment will create jobs,in the case of investors, and evidence that the essential skills E-2 employeespossess are skills not available in the U.S. labor market. Consular officers arerequiring far more evidence of unavailability of U.S. workers than in the past. Itcan be expected that the E-2 five-year business plans will have to be far moreextensive (and expensive) than in the past.

50 Percent RuleAttorneys and their clients have been perplexed for years about the meaning of

the 50 percent rule in the E-2 context, both as it applies to determination of thenationality of the E-2 enterprise and to the right of control. With respect todetermining the right of control, the 50 percent rule was honored on the theory that

50 percent ownership gave the treaty national negative veto power and thus theright to negative control. Determining nationality in the 50 percent situationbecame problematic with multinational corporations, particularly those listed onforeign stock exchanges. The revised FAM Note[22] clarifies that the followingrules apply to determine nationality:

Individual investor: The 50 percent rule does not apply, but the individualinvestor must have invested a substantial sum; the investor has to be directingand developing the enterprise and have operational control. Thus, theprincipal investor, who meets these conditions, does not need to own at least50 percent of the enterprise. The investor must demonstrate possession ofoperational control through a managerial position or other corporate device,such as a management agreement, irrevocable voting trust, or other

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documents. Merely occupying a managerial position is not sufficient to meetthis requirement if the applicant will not control the enterprise.Employee of an individual investor. The 50 percent rule does not apply;however, the individual investor must meet the requirements set forth above.Employee of an organization. The 50 percent rule applies.

A practice tip is that where two clients want to be 50/50 owners of anenterprise, it may be a conflict of interest to represent both parties and theenterprise. As a precaution, both investors should have separate immigration andcorporate counsel. The boulevard of broken dreams is strewn with the detritus of50/50 investors when the business did not work out. It is prudent to operate in theworst-case scenario when working with 50/50 startup clients.

Who Can Petition for O-1 Visas?On August 9, 2017, the FAM Note on O visas[23] was amended to include the

Buy American Hire American (BAHA) Executive Order language, which meansthat consular officers are now to include the BAHA principles in the adjudicationof O-1 visa applications. There have been reports of recent visa denials underBAHA. This results in applicants already determined by USCIS to be ofextraordinary ability to be required to prove how their work in America willfurther the “Buy American Hire American” policy in the Executive Order. Ineffect, a new visa requirement has been imposed which is ultra vires to the clear

statutory and regulatory language governing O-1 visas. This requirement can beexpected to apply to O-1 renewals as well as to initial O-1 visa applications. Ineffect, a second case must be prepared for the visa interview.

On a positive note, the FAM was amended on September 28, 2016,[24] tospecifically permit corporations owned by artists, entertainers, and other O-1beneficiaries to self-petition. This is a welcome change as this category of visaholders, particularly artists and entertainers, often have additions to theiritineraries on short notice after their visas are issued and they arrive in America.In the past, each separate O-1 entity had to file new O-1 petitions for additionalperformances, and often opportunities to perform were lost because new O-1petitions could not be approved in time for the performance. The new FAMguidance adopts the language at 8 Code of Federal Regulations (CFR) §214.2(o)(2)(iv)(D) and provides that a petitioner may add additional performances orengagements during the validity period

Page 142of the petition without filing an amended petition, provided that the additionalperformances or engagements require an alien of O-1 caliber. A corporationowned by the beneficiary, known historically as a “loan-out” corporation,provides much-needed flexibility in the ability of artists, entertainers, and othersto add to their itineraries during the validity of the petition without filing new oramended petitions.

Dissecting the Confusion Surrounding L-1 VisasL-1 Visa Validity Periods and Other Clarifications

9 FAM 402.12 provides guidance for adjudicating L-1 visas for intracompanytransferees. There have been several changes to this section of the FAM,modifying the procedural guidelines for L-1 applications and clarifying thevalidity period for L visas.

As a general principle, consular officers are required to adjudicate L-1 visacases with the spirit of the president’s Buy American Hire American ExecutiveOrder in mind.

L-1 Procedural ClarificationsAs revised on April 7, 2017, 9 FAM 402.12-4(A) instructs that, in evaluating

L-1 individual petitions, consular officers are required to consider that “thebeneficiary is not subject to INA 214(b) and is not required to have a residenceabroad which he or she has no intention of abandoning.”[25]

With respect to processing individual petitions for Canadian citizens, the new 9FAM 402.12-7(C)[26] changes clarify that an employer seeking to classify acitizen of Canada as an intracompany transferee may file an individual petition “induplicate on Form I-129, Petition for a Nonimmigrant Worker, with CBP inconjunction with the Canadian citizen’s application for admission.” The newguidelines further clarify that the “Canadian citizen may present Form I-129 alongwith supporting documentation, to an immigration officer at a Class A port of entry(POE) locate on the United States-Canada border or a U.S. pre-clearance stationin Canada at the time of applying for admission.”[27]

It should be noted that Canadian citizens seeking L classification under ablanket petition must present three copies of form I-129S at a Class A port ofentry (POE) located on the U.S.-Canada border or a U.S. pre-clearance station inCanada.

EXTREME VETTING AND VISA APPLICANTSWhile the contours of the extreme vetting of visa applicants are not yet known,

this process is mandated by a Presidential Memorandum and a Federal Registernotice. The process applies to persons determined by consular officers to warrantadditional scrutiny in connection with terrorism or other national security-related

Page 143ineligibilities. When a consular officer believes such vetting is in order, theapplicant will generally be required to complete and file Form DS-5535 with theconsular post at which the visa application was made. This form requestsemployment, travel, and residence history of the applicant for the past 15 years, aswell as details regarding the purpose of travel and the source of funds for thetravel. Since all email addresses and social media handles are requested on thisform, the data mining could be lengthy. Once a completed form is submitted, aninteragency task force at the consular post will vet the information and request aSecurity Advisory Opinion (SAO), where appropriate. Nationals of Iran, Syria,Sudan, and Yemen have undergone these lengthy SAOs for a number of years.Informally, government officials state that these clearances, particularly forpersons who have served in the military, could easily take one year. It is alsoexpected that Visas Mantis SAO requests will increase based on a heightenedconcern over technology exports. Given that consular officers are risk averse formany reasons, the number of SAO requests is likely to dramatically increase. Thebetter part of wisdom is to plan ahead for travel to the United States and not toleave during a course of study or work, as the date of return will be unknown.

GROUNDS FOR INADMISSAIBLITY (INA §212(A)(2))Inadmissibility of Spouse, Sons, or Daughters Who HaveBenefited from the Primary Alien’s Human Trafficking Activities

On August 22, 2017, 9 FAM 302.3-8(B)(2) was revised to provide guidance onadjudicating inadmissibility cases against spouses, sons, or daughters who havebenefitted from a primary alien’s human trafficking activities. Under the newguidelines, ineligibility under INA §212(a)(2)(H)(ii) does not require that thetrafficker have applied for a visa or have been formally refused a visa under INA§212(a)(2)(H)(i).[28]

The new guidelines clarify that INA §212(a)(2)(H)(ii) “only applies to spouseswho are currently spouses of aliens found inadmissible under INA § 212(a)(2)(H)(i).”[29] Therefore, it does not include those whose marriage ended in divorce orwas terminated due to the death of the primary alien.

Thus, ineligibility does not apply to a son or daughter who was a child(unmarried and under 21) at the time he or she received an alleged traffickingbenefit. Oddly, a son or daughter remains the son or daughter of an alien foundinadmissible under INA §212(a)(2)(H)(i) “even after the death of theinadmissible alien parent.”[30]

PROCESSING INA §212(D)(3)(A) WAIVERSIn a welcome change, the FAM was revised on September 30, 2016, to

encourage consular officers to recommend that §212(d)(3)(A) waivers ofinadmissibility be initially granted for five years, reversing prior guidance thatdiscouraged consular

Page 144officers from recommending such waivers for more than one year for the first andsecond waiver requests. Waiver requests are recommended to the AdmissibilityReview Office (ARO) of U.S. Customs and Border Protection (CBP) inWashington, D.C., and ARO will generally grant a waiver for five years, withsome exceptions. Note that ARO will not grant a waiver for longer than theconsular officer requests, but may grant a waiver for less time than the consularofficer requests. Waiver validity begins on the visa issuance date, and the visamust be issued within 90 days of the receipt of the approved waiver andaccording to the terms of the approved waiver. Note that if ARO grants a waiverfor more entries or for a longer period of time than that dictated by the visareciprocity schedule, the applicant may not use the remaining time under the terms

of the approved waiver to issue a new visa. A waiver is inseparable from theunderlying NIV applications and cannot be transferred to another NIV applicationunder any circumstances.[31] For example, if an Iranian applicant applies for anH-1B visa with a petition that expires in three years and ARO grants a waiver forthree years, the visa may still only be issued for one entry for a period of threemonths. The Iranian citizen applicant cannot return to the consular post to renewthe H-1B visa in a year and ask to use the remaining time on the waiver for thevisa; a new waiver must be requested. However, if an applicant with a waiver isin the United States and applies for an extension of status or change of status, thewaiver is considered to be extended for the period of time granted by USCIS inthe new status in most cases. It should not be assumed that the next waiver will begranted based on the grant of a prior waiver and no changed circumstances, eventhough the FAM counsels that consistency should be maintained in waiverrecommendations.[32]

**********

[← 1] The Foreign Affairs Manual and Handbook (FAM) is electronic and canbe accessed at https://fam.state.gov/FAM/FAM.aspx?ID=09FAM.[← 2] 5 U.S. Code (USC) §553.

[← 3] Recent changes to 9 FAM can be found athttps://fam.state.gov/FAM/Ct.aspx?VolumeID=09FAM.[← 4] Buy American and Hire American, Exec. Order No. 13788, 82 Fed. Reg.18837 (2017).[← 5] Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66Stat. 163 (codified as amended at 8 USC §1101 et seq.).

[← 6] A compilation of the FAM updates can be found athttp://www.aila.org/membership/communities/chapters/home-district/updates-on-the-fam.[← 7] 9 FAM 302.9-4 (B)(3)(g).[← 8] 9 FAM 302.9-4(B)(3)(g)(c).

[← 9] Id.[← 10] 9 FAM 402.5-5(E)(1).[← 11] 9 FAM 302.14-7(B)(3).

[← 12] 9 FAM 302.14-7(B)(4).

[← 13] 9 FAM 402.5-5(I)(1)(a)(4).[← 14] https://www.uscis.gov/eir/visa-gide/b-1-business-visitor/understanding-b-1requirements#.

[← 15] 9 FAM 402.2-4(B)(1).[← 16] 9 FAM 402.2-4(B)(2).[← 17] 9 FAM 402.10-8(G)(1).

[← 18] 9 FAM 402.10-8(G)(3).[← 19] Id.[← 20] Id.

[← 21] 9 FAM 402.9-2.[← 22] 9 FAM 402.9-4(B) sets forth how nationality is to be determined.[← 23] On April 18, 2017, President Trump signed the Executive Order entitled“Buy American Hire American” (EO 13788), intended to “create higher wagesand employment rates for workers in the United States, and to protect theireconomic interests.” The goal of EO 13788 is to protect the interests of U.S.workers in the administration of the U.S. immigration system, including throughthe prevention of fraud or abuse, and it is with this spirit in mind that cases underINA §101(a)(15)(O) must be adjudicated.

[← 24] 9 FAM 402.13-2 provides, inter alia, that “[w]hile O-1 beneficiaries maynot self-petition, a separate legal entity owned by the O-1 beneficiary may beeligible to file a petition on behalf of the O-1 beneficiary.”[← 25] 9 FAM 402.12-4(A)(8).[← 26] 9 FAM 402.12-7(C).

[← 27] Id.[← 28] 9 FAM 302.3-8 (B)(2)(a).[← 29] 9 FAM 302.3-8 (B)(2)(b).

[← 30] 9 FAM 302.3-8 (B)(2)(c).[← 31] 9 FAM 305.4-3(G)(2).[← 32] 9 FAM 305.4-3(D).

9 FAM 40.63 N4.7 Misrepresentation Not Necessarily Present When Alien's Activities in United States Differ From Statements Made in Visa Application

(TL:VISA-147; 7-9-96)

a. In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to the consular officers concerning their intentions at the time of visa application. Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants, either

(1) Apply for adjustment of status to permanent resident or

(2) Fail to maintain their nonimmigrant status, for example, by engaging in employment.

b. To address this problem the Department developed the 30/60 day rule. This rule is intended to facilitate adjudication of these types of cases consistent with the statutory mandates.

c. Those who apply for adjustment of status pursuant to the INA are within the jurisdiction of the Immigration and Naturalization Service unless the application is abandoned upon the departure of the alien from the United States. Upon receipt of a notice of application for adjustment of status (Form G-325A), therefore, it would not be appropriate for a consular officer to seek the Department's concurrence in a finding of ineligibility since such a finding would not be binding upon the INS. Instead, the post should bring available derogatory information to the attention of the appropriate INS office by a VISAS DECEMBER cable. With respect to the second category referred to above, the fact that an alien's subsequent actions are other than as stated at the time of visa application or entry does not necessarily prove that the alien's intentions were misrepresented at the time of application or entry. As to those who fail to maintain status, the consular officer should also recognize that the precise circumstances under which the change in activities or the overstay arose have an important bearing on whether a knowing and willful misrepresentation was made. The existence of a misrepresentation must therefore be clearly and factually established by direct or circumstantial evidence sufficient to meet the "reason to believe" standard. Although indeed more flexible than the judicial "beyond reasonable doubt" standard demanded for a conviction in court, a "reason to believe" standard requires that a probability exists, supported by evidence which goes beyond mere suspicion.

9 FAM 40.63 N4.7-1 Applying the 30/60 Day Rule

(TL:VISA-342; 01-08-2002)

a. In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to the consular officers concerning their intentions at the time of visa application. Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants, either:

(1) Apply for adjustment of status to permanent resident; or

(2) Fail to maintain their nonimmigrant status, (for example, by engaging in employment).

b. To address this problem, the Department developed the 30/60-day rule. This rule is intended to facilitate adjudication of these types of cases consistent with the statutory mandates.

c. Aliens who apply for adjustment of status pursuant to the INA are within the jurisdiction of the Immigration and Naturalization Service unless the application is abandoned upon the departure of the

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alien from the United States. Upon receipt of a notice of application for adjustment of status Form G-325A, Biographic Information, therefore, it would not be appropriate for a consular officer to seek the Department's concurrence in a finding of ineligibility since such a finding would not be binding upon the INS. Instead, the post should bring available derogatory information to the attention of the appropriate INS office by a VISAS DECEMBER cable. [See 9 FAM 40.63 PN2].

d. With respect to the second category referred to above, the fact that an alien's subsequent actions are other than as stated at the time of visa application or entry does not necessarily prove that the alien's intentions were misrepresented at the time of application or entry. As to those who fail to maintain status, the consular officer should also recognize that the precise circumstance under which the change in activities or the overstay arose have an important bearing on whether a knowing and willful misrepresentation was made.

The existence of a misrepresentation must therefore be clearly and factually established by direct or circumstantial evidence sufficient to meet the "reason to believe" standard. Although indeed more flexible than the judicial "beyond reasonable doubt" standard demanded for a conviction in court, a "reason to believe" standard requires that a probability exists, supported by evidence which goes beyond mere suspicion.

9 FAM 40.63 N4.7-2 Within 30-Days

(TL:VISA-313; 08-27-2001)

If an alien violates his or her nonimmigrant status by adjusting status or by seeking unauthorized employment within 30 days of entry, the consular officer may presume that the applicant misrepresented his or her intention in seeking a visa or entry.

9 FAM 40.63 N4.7-3 After 30 days But Within 60

(TL:VISA-313; 08-27-2001)

If an alien initiates such violation of status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give the consular officer reasonable belief that the alien misrepresented his or her intent, then the consular officer must give the alien the opportunity to present countervailing evidence. If the officer does not find such evidence to be persuasive, then the consular officer must submit a comprehensive report to the Department (CA/VO/L/A) for the rendering of an advisory opinion.

9 FAM 40.63 N4.7-4 After 60 Days

(TL:VISA-313; 08-27-2001)

When violative conduct occurs more than 60 days after entry into the United States, the Department does not consider such conduct to constitute a basis for an INA 212(a)(6)(C)(i) ineligibility.

Copyright © 2009 American Immigration Lawyers Association

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9 FAM 40.63 N4.7 Applying the 30/60 Day Rule (CT:VISA-1740; 10-06-2011) a. In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to the consular officers concerning their intentions at the time of visa application or to immigration officers when applying for admission. Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants, either: (1) Apply for adjustment of status to permanent resident; or (2) Fail to maintain their nonimmigrant status (for example, by engaging in employment without authorization by DHS). b. To address this problem, the Department developed the 30/60-day rule. This rule is intended to facilitate adjudication of these types of cases consistent with the statutory mandates. c. Aliens who apply for adjustment or change of status pursuant to the INA are within the jurisdiction of the United States Citizenship and Immigration Services (USCIS) unless the application is abandoned upon the departure of the alien from the United States. If you become aware of derogatory information indicating that an alien who has applied to USCIS to adjust to immigrant status or change nonimmigrant status in the United States may have misrepresented his or her intentions to you at the time of visa application or to the immigration officer at the port of entry, you should bring the derogatory information to the attention of the appropriate USCIS office that has jurisdiction over the adjustment or change of status application. Do not request an advisory opinion from the Advisory Opinions Division (CA/VO/L/A) in these cases, because it would not be binding on USCIS. d. With respect to the second category referred to above, the fact that an alien's

subsequent actions are other than as stated at the time of visa application or entry does not necessarily prove that the alien's intentions were misrepresented at the time of application or entry. As to those who fail to maintain status, you should also recognize that the precise circumstances under which the change in activities or the overstay arose have an important bearing on whether a knowing and willful misrepresentation was made. The existence of a misrepresentation must therefore be clearly and factually established by direct or circumstantial evidence sufficient to meet the "reason to believe” standard. Although indeed more flexible than the judicial "beyond reasonable Visas doubt” standard demanded for a conviction in court, a "reason to believe” standard requires that a probability exists, supported by evidence which goes beyond mere suspicion. 9 FAM 40.63 N4.7-1 Applying 30/60 Day Rule When Alien Violates Status (CT:VISA-1385; 12-11-2009) You should apply the 30/60-day rule if an alien states on his or her application for a B-2 visa, or informs an immigration officer at the port of entry (POE), that the purpose of his or her visit is tourism, or to visit relatives, etc., and then violates such status by: (1) Actively seeking unauthorized employment and, subsequently, becomes engaged in such employment; (2) Enrolling in a program of academic study without the benefit of the appropriate change of status; (3) Marrying and taking up permanent residence; or (4) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment. 9 FAM 40.63 N4.7-2 Inconsistent Conduct Within 30 Days of Entry (CT:VISA-998; 08-26-2008) If an alien violates his or her nonimmigrant status in a manner described in 9 FAM

40.63 N4.7-1 within 30 days of entry, you may presume that the applicant misrepresented his or her intention in seeking a visa or entry. 9 FAM 40.63 N4.7-3 After 30 Days But Within 60 Days (CT:VISA-1385; 12-11-2009) If an alien initiates such violation of status more than 30 days but less than 60 days after entry into the United States, no presumption of misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her intent, then you must give the alien the opportunity to present countervailing evidence. If you do not find such evidence to be persuasive, submit a comprehensive report to the Advisory Opinions Division (CA/VO/L/A) for the rendering of an advisory opinion. (See 9 FAM 40.63 N7.2).

9 FAM 40.63 N4.7-4 After 60 Days (CT:VISA-998; 08-26-2008) When violative conduct occurs more than 60 days after entry into the United States, the Department does not consider such conduct to constitute a basis for an INA 212(a)(6)(C)(i) inadmissibility.

g. (U) Activities that Indicate Violation of Status or Conduct Inconsistent with Status (1) (U) In General: (a) (U) In determining whether a misrepresentation has been made, some of the most difficult questions arise from cases involving aliens in the United States who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit. Such cases occur most frequently with respect to aliens who, after having obtained visas as nonimmigrants and been admitted to the United States, either: (i) (U) Apply for adjustment of status to lawful permanent resident; or (ii) (U) Fail to maintain their nonimmigrant status (for example, by engaging in unauthorized study or employment). (b) (U) Applications for adjustment or change of status in the United States are adjudicated by U.S. Citizenship and Immigration Services (USCIS), other than in those cases where the application is made before an Immigration Judge. If you become aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit, you may bring the derogatory information to the attention of the Department for potential revocation. See 9 FAM 403.11-5. If you become aware of derogatory information indicating that an alien in the United States without a valid visa but who is not a Lawful Permanent Resident may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit, then you may enter a P6C1 lookout in CLASS with the appropriate information. See 9 FAM 403.10-3(C) (1). Do not request an advisory opinion from the Advisory Opinions Division (CA/VO/L/A) in these cases, because it would not be binding on USCIS. (c) (U) With respect to the second category referred to above in subparagraph g(1)(a)(ii), nonimmigrant visa holders who fail to maintain their nonimmigrant status, the fact that an alien's subsequent actions are inconsistent with those stated at the time of visa application or admission or in a filing for an immigrant benefit does not necessarily prove that the alien's intentions were misrepresented at the time of application or entry. You should consider carefully the precise circumstances of the change in activities when determining whether the applicant made a knowing and willful

misrepresentation. To conclude there was a misrepresentation, you must have direct or circumstantial evidence sufficient to meet the "reason to believe” standard, which requires more than mere suspicion but less than a preponderance of the evidence. (2) (U) Inconsistent Conduct Within 90 Days of Entry:90 (a) (U) However, if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in90 subparagraph (2)(b) below, you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry. To make a finding of inadmissibility for misrepresentation based on conduct inconsistent with status within 90 days of entry, you must request an AO90 from CA/VO/L/A. As with other grounds that do not require a formal AO, the AO may be informal. See 9 FAM 304.3-2.

(b) (U) For purposes of applying the 90-day rule, conduct that violates or is90 otherwise inconsistent with an alien’s nonimmigrant status includes, but is not limited to: (i) (U) Engaging in unauthorized employment; (ii (U) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status); (iii) (U) A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or (iv) (U) Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment. (3) (U) After 90 Days: 90 If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 90 days after entry into the United States, no presumption of willful misrepresentation arises. However, if the facts in the case give you reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A. (See 9 FAM 302.9-4(C)(2)).

9 FAM 103.4

(U) VISA OFFICE CONTACT FOR LEGAL ISSUES ­

LEGALNET@STATE.GOV

(CT:VISA­304; 03­16­2017)

(Office of Origin: CA/VO/L/R)

9 FAM 103.4­1 (U) IN GENERAL

(CT:VISA­60; 02­25­2016)

(U) There is no appeal process for visa refusals; however, applicants and theirrepresentatives of record may pose legal questions regarding pending or recentlycompleted visa cases by email to LegalNet@State.gov. See 9 FAM 601.7­3 forinformation regarding correspondence with attorneys or other intermediaries.

9 FAM 103.4­2 (U) PURPOSE AND SCOPE OF

LEGALNET

(CT:VISA­60; 02­25­2016)

a. (U) The Visa Office has a dedicated email channel, LegalNet@State.gov, available onlyfor case­specific questions on the interpretation or application of immigration law. LegalNet serves to ensure a streamlined legal review of inquiries involving legalissues, so inquirers receive an answer in an efficient manner. The LegalNet staffworks with posts and other divisions in the Visa Office to prepare responses toappropriate inquiries that involve legal issues.

b. (U) Posts can refer applicants and their representatives to LegalNet at any time,provided the inquiry falls within the scope of 9 FAM 103.4­2 paragraph c, below. Anapplicant or representative submitting an inquiry to LegalNet should make sure theinquiry falls within one of the categories listed in paragraph c, below, and ensure thatthe request includes all of the required information and documents listed in 9 FAM103.4­3.

c. (U) LegalNet will provide substantive responses only to the following categories ofinquiries:(1) (U) Legal questions about a specific case when the applicant or representative

has attempted to contact post at least twice without receiving a final response,and where 30 days have passed since the second inquiry (unless action isrequired sooner to avert significant harm to the applicant);

(2) (U) Legal questions about a specific case in which the applicant or representativehas received a final response from post, but believes it to be wrong as a matter oflaw;

(3) (U) Legal questions about specific cases involving T visas, U visas, Diversityvisas, or adoption visas; and

(4) (U) Legal questions about specific cases involving the Child Status Protection Act(CSPA) or the Violence Against Women Act (VAWA).

d. (U) For all other inquiries, LegalNet will respond with a message providing the publicinquiries telephone number or other point of contact information, as appropriate.

e. (U) LegalNet will not provide a substantive response to the categories of inquirieslisted below. Instead, LegalNet may provide a standard form response, listingcommunication channels potentially available for such inquiries.(1) (U) Questions from anyone other than an applicant or representative of record;(2) (U) Requests to review factual determinations made by a U.S. consular officer,

including a refusal under INA 214(b) in a B1/B2 visa application;(3) (U) Requests for case status updates;(4) (U) Questions that are general, speculative, or hypothetical in nature;(5) (U) Legal questions in cases where the consular officer has not yet reached a

final determination of the applicant's eligibility for a visa, except as outlined in (c)(3 and 4) above;

(6) (U) Matters relating to visa cases that have already been returned to a USCISService Center;

(7) (U) Matters related to visa appointment scheduling; (8) (U) Requests for a status update for an I­601 waiver;(9) (U) Requests for details in visa cases refused under INA 212(a)(3)(B) or Section

306 of the Enhanced Border Security and Visa Reform Act of 2002 (EBSVRA);(10) (U) Requests for explanations of visa revocations or cancellations;(11) (U) Requests for the Visa Office to forward additional documentation to post;(12) (U) Requests regarding a case that is still being processed at the National Visa

Center, including those relating to an Affidavit of Support, immigrant visa fee,case status, or procedural information;

(13) (U) Requests for Advisory Opinions in pending or refused Visas 92 and Visas 93cases; or

(14) (U) Requests to substitute priority dates or assign an old priority date to a newpetition, except for inquiries about Western Hemisphere priority dates.

9 FAM 103.4­3 (U) REQUIREMENTS FOR LEGALNET

INQUIRIES

(CT:VISA­60; 02­25­2016)

a. (U) All inquiries submitted to LegalNet must refer to only one case per email and mustfollow the guidelines below.(1) (U) The subject line of the email must include:

(a) (U) The applicant's full name;(b) (U) The post processing the case;(c) (U) The National Visa Center case number for immigrant visa cases;

(d) (U) The applicant's passport number and/or the USCIS receipt number fornonimmigrant visa cases; and

(e) (U) The citation to the relevant statute or regulation at issue. For example,the subject line should read as follows: LAST NAME, First Name; POST;CDJ2015000000; INA 212(a)(6)(C)(i)

(2) (U) The body of the email must include:(a) (U) The principal applicant's full name as it appears in the applicant's

passport, the applicant’s date of birth, and the applicant’s place of birth;(b) (U) The location of the pending or denied visa application, the applicant's

visa classification, and any refusal code; and(c) (U) A brief summary of the situation and legal contention.

(3) (U) The email attachments must include:(a) (U) Copies of all previous correspondence with post; and(b) (U) If the request is sent by the applicant’s representative, a signed G­28

form and the requesting attorney or representative's contact information.(c) (U) NOTE: We will not accept any emails with attachments over 1 megabyte

(MB) in sizeb. (U) A submission to LegalNet that is missing any of the above required information ordocuments may be returned with a form response identifying the missinginformation.

9 FAM 103.4­4 (U) PROCESSING OF LEGALNET

REQUESTS – RESPONSES TO INQUIRIES

(CT:VISA­60; 02­25­2016)

a. (U) Within seven (7) business days of receiving a new inquiry that meets allrequirements above, LegalNet will provide notice that the inquiry has been receivedand is being processed. The time frame for substantive responses depends on thecomplexity of the matter and availability of essential information.

b. (U) Applicants or designated representatives may submit a follow­up email toLegalNet, along with copies of any earlier LegalNet correspondence, if no substantiveresponse is received from LegalNet within thirty (30) days of the initial notice that theinquiry is being processed.

9 FAM 103.4­5 (U) PROCESSING OF LEGALNET

REQUESTS – INTERNAL

(CT:VISA­304; 03­16­2017)

(U) The following non­binding, internal guidelines relate to allocation of responsibilitiesand aspirational timelines. These are documented to assist State Department personneland promote internal consistency, transparency, and accountability. The guidelines maynot be relied upon by the public and may not be referenced for any purpose other thanState Department internal monitoring of case progress. LegalNet should not be

requested or expected to disclose the status of cases under consideration. Depending onthe complexity of the inquiry and workloads of relevant posts and offices, the guidelinesbelow may not apply. (1) (U) LegalNet staff coordinates incoming inquiries, reviews cases in the

appropriate database, primarily the Consular Consolidated Database (CCD), andcontacts post to verify case status when necessary.

(2) (U) LegalNet staff will forward subject­specific inquiries to the appropriate officesas follows:(a) (U) Inquiries regarding INA 212(a) ineligibilities (other than security­related

grounds) will be forwarded to the Advisory Opinions Division (CA/VO/L/A);(b) (U) J­Waiver inquiries will be directed to the Waiver Review Division

(CA/VO/DO) at 212ewaiver@state.gov;(c) Unavailable (d) (U) Child Status Protection Act and Follow­to­Join inquiries will be forwarded

to the National Visa Center (NVC), CA/VO/L/A, and/or Post (as appropriate);(e) (U) A, G, and NATO Visa inquiries will be forwarded to the Diplomatic Liaison

Division (CA/VO/DO) or to CA/VO/L/A (as appropriate);(f) (U) Petition­based legal inquiries will be forwarded to CA/VO/L/A and or Post

(as appropriate).(3) (U) LegalNet staff will maintain and update an internal tracker on the shared (S)

drive for all incoming legal inquiries and outgoing replies.(4) (U) LegalNet staff will draft and send final responses to requesters after collecting

and consolidating input from relevant offices.(5) (U) Target Timelines:

(a) (U) LegalNet will send an automated "Acknowledgement of Receipt" advisingrequesters that their inquiry has been received and is being processed.

(b) (U) LegalNet staff should aim to forward inquiries to appropriate offices viaAction Officers within five (5) working days of receiving the inquiry.

(c) (U) Where no additional information is required, Action Officers in theappropriate office should aim to respond to LegalNet requests within five (5)working days.

(d) (U) Where additional information is required, Action Officers should aim tomake relevant requests within ten (10) days of receipt of the inquiry fromLegalNet.

(e) (U) Posts should aim to respond to requests for additional information for aLegalNet inquiry within ten (10) days of receipt of the request, if theinformation is in the post's possession. Action Officers should contact poststhat have not responded to requests within eleven (11) days, and shouldcontinue to follow­up with posts bi­weekly.

(f) (U) Action Officers should aim to send draft responses to LegalNet within five(5) working days after all required input and information is obtained.

(g) (U) Action Officers should include LegalNet on all communications regardinga case and LegalNet should record all significant actions in the tracker, asappropriate.

DOS LegalNet Inquiry Tips October 4, 2013

_________________________________________________________________________ From: Legal, Net Sent: Friday, October 04, 2013 6:08 PM To: Liam Schwartz Subject: RE: AILA Inquiry - Updated Legalnet Procedures Dear Mr. Schwartz, Two visa specialists work full time in Legal Net. A third visa specialist works part time. Legal Net staff manages the inbox, coordinates incoming inquiries, then forwards them to the appropriate attorney advisor in L/A for their review. In general, attorneys designate Legal Net staff to respond to procedural and status inquiries, while inquiries that require advisory opinions are addressed by L/A staff. Legal Net receives more than 60 inquiries each day. In coordinating these inquiries, Legal Net gives top priority to requests for legal advisory opinions. In addressing requests for status checks on cases requiring additional processing, Legal Net staff accesses the appropriate database to verify the status of the case. Legal Net’s role is limited to verifying that the additional processing is indeed being under way. Please find below an updated list of tips for attorneys:

‐ When sending a request for a legal advisory opinion, include in the subject line the name of the applicant and case number for immigrant visa cases or the name of the applicant and passport number for nonimmigrant visa cases.

‐ L/A is unable to accept inquiries with large attachments (over 1 MB). For this reason,

attorneys should include their legal argument in the text of the email or in a format that is less than 1MB in size. Note that additional facts not in the record are not appropriate for an Advisory Opinion, so large attachments should not be needed.

‐ If an attorney wishes to submit additional documents or factual information that was

not presented with an alien’s visa application, such information should be sent directly to the Post. Legal Net cannot review documents or forward them to post.

‐ Legal Net is unable to schedule visa appointments. Requests to schedule, change, or expedite appointments must be sent to post.

‐ Legal Net often receives inquiries addressed to both the consular post and Legal

Net. Attorneys should submit the initial request for reconsideration to post. If they inquire with the consular post and do not receive a response, after two attempts,

AILA InfoNet Doc. No. 07041065. (Posted 10/10/13)

they may follow up with Legal Net. Inquiries should indicate whether and when the same inquiry has been sent to the consular post.

‐ Legal Net receives a large number of inquiries addressed to both

NVCattorney@state.gov and Legal Net. If the attorney is requesting status of a case that is still being processed at NVC, please inquire only with NVCattorney@state.gov.

‐ Legal Net can entertain requests for status checks on cases requiring additional processing if 60 days or more have passed from the date of interview.

‐ Attorneys may submit a follow up message to Legal Net if they have not received a final response within thirty days

‐ Legal Net is unable to process requests for a review of the factual determinations made

by a U.S. consular officer. ‐ Legal Net is unable to address inquiries from non‐attorneys (including immigration

consultants). They should call (202) 485‐7600.

‐ Legal Net is unable to process requests for waiver status checks and other issues that do not come under the purview of the Department of State.

Legalnet Visa Office Department of State Any information in this transmission pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential under Section 222(f) of the Immigration and Nationality Act (INA) [8 U.S.C. Section 1202]. Access to and use of such information must be solely for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States under INA 222(f) and as specified in FAM guidance. If you have received such information in error, do not review, retransmit, disclose, disseminate, use, or take any action in reliance upon this information, and contact the sender as soon as possible. This email is Sensitive but Unclassified based on the definitions provided in 12 FAM 540

AILA InfoNet Doc. No. 07041065. (Posted 10/10/13)

Discussion with LMH of LegalNet AILA-DOS Liaison Meeting

March 15, 2007

At AILA's request, "LMH" of LegalNet fame attended our liaison meeting with the Department of State (DOS), held on March 15, 2007. This meeting provided a first-ever opportunity for AILA to speak directly with LMH, the person who responds to virtually all inquires made by attorneys to LegalNet.

At the meeting, LMH informed us of the following:

! LegalNet consists primarily of LMH (who coordinates incoming inquiries); and a staff attorney in the DOS Visa Office. The staff attorney is charged with researching and drafting most of LegalNet's advisory opinions.

! In cases presenting particularly complicated legal issues, Jeff Gorsky (Chief, Advisory Opinions Division), becomes personally involved in formulating the advisory opinion.

! LegalNet receives more than 30 inquiries each day. In coordinating these inquiries, LMH gives top priority to requests for legal advisory opinions.

! Almost one-third of the attorney inquiries made to LegalNet seek an update on the processing of a security advisory opinion ("SAO") requested by a U.S. Consul in connection with a client's visa application.

! LegalNet can entertain requests for SAO status checks if 45 days or more have passed from the date on which the SAO was requested.

! In addressing requests for SAO status checks, LMH accesses the appropriate database to verify if, and when, the Consul sent in the SAO request. Contact is then made with the specific Washington agency performing the SAO in a given case. LMH is not in a position to report back on the interested agency's timetable for processing the SAO request, and is limited to verifying that the SAO is indeed being processed.

LMH provided a number of tips for contacting LegalNet:

! Attorneys may contact LegalNet for a review of legal issues connected with a given case (legal advisory opinions); and for SAO status checks.

! LegalNet may also be contacted if an attorney wishes to alert the Visa Office to a perceived unfair practice or procedure at a consular post.

! In contacting LegalNet, include copies of pertinent correspondence previously made with the consular post.

AILA InfoNet Doc. No. 07041065. (Posted 04/10/07)

! LegalNet is unable to process requests for a review of the factual determinations made by a U.S. Consul.

! LegalNet is unable to address inquiries from non-attorneys (including immigration consultants).

! LegalNet is unable to process requests for waiver status checks and other issues which do not come under the purview of the Department of State.

! Requests for legal advisory opinions will receive immediate attention by indicating "Request for Legal Advisory Opinion" in the e-mail "subject" heading.

Note from liaison committee chair Liam Schwartz:

The DOS Visa Office, in approving the above meeting summary, asked to add the following advice for attorneys:

Legal Net will answer status questions on visa cases only after two attempts to communicate with post have failed. When inquiring with Legal Net, please include copies of pertinent correspondence with the consular post. For nonimmigrant visa inquiries please provide identifying information, i.e. complete name, date of birth, passport number of the applicant and post where case is pending; for immigrant visa inquiries provide the applicant's name, date of birth and the case number provided by NVC.

Legal Net does not respond to inquiries that are general, speculative or hypothetical in nature.

Often attorneys contact Legal Net in lieu of contacting NVC. Unless the attorney has received a letter from NVC indicating that his/her client's petition has been forwarded to post, all inquiries regarding processing of immigrant visas should be sent directly to the National Visa Center (NVC). To contact NVC, please forward your inquiries by email to: NVCAttorney@state.gov

LMH impressed us as focused and energetic. For me, the value of this meeting was in creating a personal dialogue with the people who operate LegalNet, which is essentially the only formal visa case-resolution mechanism out there. Our goal is to leverage this dialogue to promote a better understanding by LegalNet and the Visa Office of AILA's concerns in the visa processing context.

LegalNet may be contacted at the following e-mail address: Legalnet@state.gov

Contact information for U.S. embassies and consular posts can be found at the following site: http://usembassy.state.gov/

AILA InfoNet Doc. No. 07041065. (Posted 04/10/07)