As published in the Immigration Daily on November 6, 2017.
1. Visa lottery program – Lashing out and politicizing tragedy, Mr. Trump predictably attacked the visa lottery (diversity visa) program which brought in Uzbekistan-born Sayfullo Saipov, accused of killing 8 and maiming about a dozen in Manhattan by use of a rental truck. Yet the President has remained virtually silent on the issue of even banning “bump stocks”, the rapid-fire enabler of the military rifles of the Las Vegas shooter who killed 58 and wounded 489 on October 1st , following his announcement on October 5th that he would consider a ban. And he laid blame for the visa program at the feet of Democratic Senator Chuck Schumer (NY) who, while sponsoring the bill that made the temporary program permanent in 1990, also called for its repeal as part of comprehensive immigration reform in 2013 – legislation that passed the Senate but was killed by the Republican House. Very few on either side of the aisle have a problem with eliminating the program, but quickly using the incident to promote his agenda was sickening and hypocritical. Mr. Trump has been advocating the RAISE (Reforming American Immigration for Strong Employment) Act, a bill by Republican Senators Tom Cotton (AR) and David Perdue (GA), which would eliminate the program along with cutting U. S. immigration by approximately half within the next 10 years. There is much opposition to this drastic reduction in immigration numbers, and Mr. Trump was eagerly opportunistic in seizing on the tragedy. The reasonable solution advocated by many has been the reassignment of the 50,000 visa lottery numbers to the family or employment-based categories, where they can be used to reduce backlogs and waiting time of persons waiting to immigrate to this country. One possible use could be in eliminating backlogs in otherwise oversubscribed country categories such as China’s EB-5 immigrant investor preference, India and China’s EB-2 (professionals with advanced graduate degrees or exceptional ability) and EB-3 (professionals, skilled workers, and other workers) categories, and Mexico’s family-based categories.
2. Attestation of translation – This office and those of other immigration lawyers have recently received (RFEs) Requests for Evidence from U.S.C.I.S. disallowing the consideration of submitted materials for lack of language on the translation attestations not strictly adhering to the regulatory language. The American Immigration Lawyers Association (AILA) received reports from its members of U.S.C.I.S. denials due to failure to submit a complying attestation of translation. The regulatory language requires that the translator certify that he or she is “competent” to translate and that the translation is “complete and accurate.” While the agency may have the right to require that attestations follow the regulatory language, it should in fairness have given warning that it would demand such strict adherence in future cases rather than imposing the requirement on already submitted petitions and applications – especially as it receives translations from every country in the world done by armies of translators and has never before been restrictive on the format of attestation as long as the language demonstrated that the translator had sufficient knowledge of English and the foreign language to make the translation and did it to the best of his or her ability. The language rejected in our case was from a translation service in China in which the translator identified himself as an English-language professor and PhD in translation theory and practice at a university; that he was also a translator with the translation service which is a professional translation company affiliated with the university; that he certified that he had made the translation from the attached documents in the Chinese language to the English language and that such was a true and correct translation to the best of his knowledge, ability and belief.
3. DNA testing standards – Do you know the percentage standard for passing a DNA test at U.S.C.I.S.? The agency referred to its standard in a State Department cable to consular officers encouraging Department of State officers to allow for submission of direct sibling to sibling and half sibling DNA test results as one way of establishing sibling relationships. (Unclassified 17 State 6984, 1/24/17, “Update to 9 FAM 601.11 Permitting Direct Sibling-to- Sibling and Half-Sibling DNA Testing as Evidence of Relationship”). The standard for passage is a probability of 99.5%. Anything less can be retested, but will not pass if it does not reach that probability. Relationships between parent and child, direct sibling to sibling relationships and with half siblings are deemed acceptable for testing, but not recommended for testing cousins, aunts/uncles, nieces/nephews, or other such extended relationships as those tests cannot reach the minimum 99.5% probability requirement. Also consular officers are not to use testing for exclusionary purposes, such as requesting DNA testing between marital partners on suspicion that they are blood relatives.
4. Employment-based case interviews – U.S.C.I.S. is reawakening its old policy of interviewing employment based (EB) cases, for which it began waiving interviews in 1992. Those practitioners old enough to remember Legacy INS EB interviews in those bygone days can recall many questions pertaining to the I-140 immigrant visa petition as well as those relevant to the I-485 adjustment of status application, sometimes even when the I-140 was approved. I-140s as well as I-485s were commonly adjudicated by the field offices. Since those days, however, the ascendancy of the service centers has resulted in service centers adjudicating I-140s instead of field offices. This is good news as the current practice will continue and most I-140 petitions will have been favorably adjudicated prior to shipment for field office interviews, thus making interviews less onerous for applicants. This was the direction of recent U.S.C.I.S. comments in the September 28, 2017, U.S.C.I.S. Ombudsman stakeholder call featuring Dan Renaud, Associate Director of Field Operations. The gist going forward was that EB green card interviews will be scheduled for all I-485’s filed on or after March 6, 2017. Interviews would start on October 2, 2017. I-140s will be adjudicated by service center operations, and if approved, the case is sent to the NBC (National Benefits Center) which is the hub of field operations and which will conduct pre-processing activities to ensure that the case is interview ready. Field offices will communicate interview availability to the NBC and the NBC will slot the cases for the interview. EB adjustment processing times should not be affected – impacted processing times will be for family-based and N-400 [naturalization] product lines. At interview, officers have been instructed and trained not to re-adjudicate the I-140. However, they can evaluate whether the evidence used to support the I-140 was accurate, bona fide, and credible. Applicants can be asked to explain where they will work, what they are going to do, and their educational background and experience so that the officers can assess the credibility of the evidence. Also that the employer still intends to employ the applicant and the applicant still intends to take up employment. Applicants can expect to be asked any question relating to the I-485 and family members should expect questions regarding their relationship to the principal and the bona fides of that relationship. If there is a new job that is “same or similar”, the field office can speak with SCOPS (Service Center Operations) and/or U.S.C.I.S. Central Office Headquarters to try and resolve the issue of whether the case can be ported to the new employment.
5. Interpreters at U.S.C.I.S. interviews – On May 1, 2017, U.S.C.I.S. implemented a formal policy that it had announced in January concerning the acceptability of interpreters at U.S.C.I.S. interviews. The issue is important as having an unacceptable interpreter on the date of interview can cause a case to be rescheduled, resulting in much more time, expense, and inconvenience to the applicant and whoever else is supposed to appear at the interview. With the 1/17/17 policy memorandum, “The Role and Use of Interpreters in Domestic Field Office Interviews”, in effect at this time, readers should be aware that in addition to the usual people who cannot translate (attorneys in the case or persons under the age of 14), those considered disfavored are individuals who are 14-17 years of age, witnesses, family members, or persons with financial connections to the person to be interviewed, e.g. business partners. Disfavored individuals can still qualify under a good cause exception, with the memorandum giving such examples as prejudicial delay (delay preventing the alien from qualifying for a benefit (aging out); harming someone with a documented, serious medical condition (pregnant with imminent birth); person living in rural, remote, sparsely populated areas where there are few individuals who speak the alien’s language; where there is a rare dialect or language; the alien has confidential medical conditions and may not want to share sensitive information with an unfamiliar interpreter; the alien has confidential/protected information such as a VAWA (Violence Against Women Act) applicant who may not want to disclose sensitive abuse information or personal information with an unfamiliar interpreter; and persons with certain physical or mental disabilities including developmental disabilities (aliens with these conditions may be more responsive to a familiar interpreter, such as their typical support person). Because of the hardship that having an interview rescheduled can bring to all parties, applicants should err on the side of caution in choosing whom they wish to bring as interpreter to a U.S.C.I.S. interview.
6. EB-5 China cases – Here is a conundrum for the President who is a real estate magnate in his other life and along with his son-in-law’s family, the Kushners, has made a pretty penny from EB-5 financing on his Trump organization projects. How can he help out the EB-5 Chinese nationals who have by and large propped up the program in the past decade and who will disappear as a class now and in the future because of the astounding immigrant visa backlog problem without appearing to be serving his own interests? Estimates range from 7-10 years on the length of time required for a China born investor filing a petition now to be cleared for a conditional two-year green card. This is not to mention the additional time that it will require for the applicant to wait for and then file an I-829 petition to remove the conditional basis of the residence status. Perhaps a reinterpretation of the EB-5 law to count only the principal applicants and not family members for visa numbers, or reassignment of the visa lottery numbers as suggested above would help. Or perhaps Mr. Trump is already ahead of everyone with his hard advocacy of the RAISE Act, which would eliminate the EB-5 program, but put in a 30 point employment-based system in which an investment of $1,350,000 and additional requirements would garner 6 points, and one of $1,800,000 with additional requirements 12 points. As part of the legislation, the cap on country visa limits would be eliminated so that China born applicants who qualify would no longer be blocked by an immigrant visa backlog. It should be remarked that the dollar figures are not as intimidating as they would appear since they are the same numbers being bandied around in U.S.C.I.S.’s proposed EB-5 rulemaking of January 13, 2017. So if you thought about it ahead of us, congratulations on your smart thinking and self-interest, Mr. Trump!