Nothing About Trump Policies On Immigration; The Effect Of Visa Retrogressions; The Iron-Doming Of Dhs; And Watch Out For Closed Loop Voyages.

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I said in my last article that this one would be about recent Trump administration moves against immigration, DHS including U.S.C.I.S. iron-doming itself, and another interesting topic. I have to take the first topic off the list because there have been so many of them, and they have all been well publicized. What more is there to say about his threat to start deporting millions of undocumented immigrants, playing musical chairs with DHS Secretary and U.S.C.I.S. Chief and topping it off with a new position, “Border Czar,” which would impinge upon the authorities of the heads of CBP and ICE? The flawed EB-5 program remains untouched as it benefits his class, real estate developers, and especially his son-in-law and his family, the Kushners, and he has been exposed in both the North Korean and Iran crises as a bully who pushes and pushes but is indecisive when his bluff is called. His reason for calling off airstrikes in Iran over concern of 150 projected deaths would be more convincing if he showed more care for the 3000 deaths in Puerto Rico after Hurricane Maria, the many migrant deaths including children and lack of justice in prosecuting those who leave food and water in the desert or pick them up to deliver them to safety, and the 5000 deaths caused in great part by American weapons and intelligence in the Saudi coalition airstrikes in Yemen fueled by his desire to continue selling billions of dollars in arms to Saudi Arabia.

So I am amending the list of topics to the following:

1. The Effect Of Visa Retrogressions

The visa chart is king. It is the one most important item in an immigration lawyer’s toolbox. With no inkling of chart progression and retrogression, a lawyer can place a client in a dead-end situation. Current chart progression means that the EB-5 program for China-born is dead. For the month of July 2019, immigrant visa availability is only open to those from China who filed their I-526 immigrant petitions based on entrepreneurship before November 1, 2014. Although this may appear to be only a 4 ½ year wait, visa chart time is not real-time. Charlie Oppenheim, Chief of the Immigrant Visa Control and Reporting Division of the Department of State, reported at the Invest in the USA (IIUSA) conference on May 6, 2019, that a native of China starting an EB-5 case today could wait up to 16.5 years for the visa to become available. In the meantime, the July visa chart shows that the worldwide availability dates for EB-2 (those with advanced degrees) and EB-3 (those with baccalaureate degrees or 2 years working experience) are open at present, but expected to have corrective action as early as August. It is known that visa retrogression around the end of the fiscal year (FY 2019 runs from 10/1/18 – 9/30/19) is usually temporary, and the open worldwide dates with the exception of those born in China and India make cases in those categories especially attractive because of the short wait times involved in a successful case.

2. The Iron- Doming of DHS

Here we go back to the 1970s-early ‘80s when legacy INS looked like a monolith without humanity. Back then, people sat hours upon hours in windowless hot rooms cooled by only 1 or 2 fans and many of the officers were not trained in customer courtesy. The Trump administration now wishes to present an unfriendly DHS in which information flow is highly restricted. The National Customer Service Center from which the public obtains most of its information on pending cases by dialing 1-800-375-5283 has had its friendly name deleted and replaced with U.S.C.I.S. Contact Center. Representatives are harder to reach, and give less information. U.S.C.I.S. processing times are ridiculously long, and even ridiculously longer for the agency even to accept a telephone call about a pending case. For example, the F-2B (LPR parent filing for unmarried son or daughter over the age of 21) final action visa availability date for the month of July is up to 5/15/13, but if the applicant is overseas and has an open and current priority date of April 2013, the petitioner or legal representative could not even call to discuss the case if it is being held for adjudication at the U.S.C.I.S. Vermont service center since its current processing time (as per U.S.C.I.S.’s current declared processing times) is between 75-97.5 months, and the agency will only entertain inquiries if the petition was submitted prior to 6/27/11. Infopasses (individual appointments at the local field offices to ask about cases) are almost impossible to obtain. Liaison meetings between interested groups like the American Immigration Lawyers Association and U.S.C.I.S. have been discouraged from the top. Methods by which the public can pay U.S.C.I.S. at its field offices have been limited. Window service at ICE for delivery of papers has been closed in many locations. The use of discretion by ICE has been largely abolished. Many immigration hearings are conducted by video in which lawyer and client are separated, not allowing for proper preparation. Dissemination of ICE’s Office of Immigration Litigation publication, OIL Litigation Bulletin, to the public has been stopped. Cooperation between ICE attorneys and private attorneys has largely ceased. And of course, CBP is greatly in the news in iron-doming itself against migrants not only at the border, but for 100 miles inland. There is a sense of agency bravado and zeal in which the tone is enforcement as opposed to customer service and prosecutorial discretion to the deserving.

3. Closed Loop Voyages Involve Entries to CBP

This topic has been a source of confusion to many – does someone make a new “entry” to the USA entitling Customs and Border Protection (CBP) to make an inspection of a traveler where that person has taken a Caribbean island cruise or other short cruise and come back to the same port from which he or she departed? It would seem to make sense that a new entry is not made in the immigration sense, especially where the traveler does not disembark except on U. S. territories such as the Virgin Islands, St. Thomas, St. John’s or St. Croix. Yet the question was answered to the contrary in the 4/8/19 agenda questions for the American immigration Lawyers Association New York Chapter liaison meeting with New York/New Jersey CBP. On the question of whether a round-trip cruise back to the same port could be done by an applicant for change of status without a grant of advance parole, the CBP reply was that closed loop cruises are cruises departing from and arriving at the same port, and for all individuals who are not U. S. citizens or lawful permanent residents, that counts as a departure and upon return, even to the same port, the individual must present a valid passport and visa (if applicable) or valid I-512 (advance parole document if applicable). If the answer is the last word on the subject by CBP, that is important to know as there are occasions for which families or other groups may plan gala birthday or reunion island cruises including grandparents, uncles and aunts, and it would be disastrous to have one of the party flagged and placed in removal proceedings after sailing back to port.

‡ This article © 2019 Alan Lee, Esq.



About The Author

Alan Lee, Esq. Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.


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