US VISA by Crispin R. Aranda: Compartmentalized justice

THE administration, monitoring, implementation of immigrant and visa laws of the United States are essentially divided among three departments under the Executive Branch: Homeland Security, State and Justice.

Visa and immigration laws are passed and created of by Congress of course. When there’s a conflict as to how the laws are being implemented, the courts step in, but only after exhausting all administrative remedies.

For those intending to visit, study, do business, work or reside permanently in the US, they must apply for the appropriate and specific visa. Application for visas are submitted to or are done at consular posts under the US Department of State.

When one enters the US for the first time – after being issued a visa – or applying for admission again after having been to the US several times on a multiple entry visa for example, the nonimmigrant presents the visa to a Customs and Border Protection (CBP) officer at a port of entry.

The CBP is one of three main agencies under the Department of Homeland Security (DHS) implementing US immigration laws. The other two are the US Immigration and Customs Enforcement (ICE) and the US Citizenship and Immigration Services (USCIS).

Leila, a B1/B2 multiple entry visa holder was admitted into the US in 2009. After two trips to the US, she decided to apply for change of nonimmigrant status – from tourist to student.

She applied to change her status after being admitted into an educational institution after 90 days – before her initial authorized period of stay (six months) was up. However, she did not apply to extend her stay, but submitted her I-539 application for extend/change of nonimmigrant status with the USCIS.

Leila forgot to include the filing fees (the check was not part of the application). Her application was returned to her. After making sure the check was with the application form, she resubmitted the application to change her status from tourist to student. By the time the reapplication was received by the USCIS, Leila’s authorized stay expired.

Her application for change of status was approved, but she had to return to the Philippines to apply for her student visa. She was considered to have been out of status.

Not aware that the change of status was not the same as being lawfully present, Leila did not go home. She continued with her studies.

While at a friend’s house, a team of ICE came looking for another person who had a pending deportation order (for not appearing in immigration court for alleged marriage for residency). When the ICE agents asked Leila about her status—and provide evidence of lawful presence—they discovered that Leila had overstayed. She was detained. Represented by a court-appointed lawyer, Leila appeared in court and challenged the deportation order.

 

The immigration judge concurred with ICE that Leila was no longer in lawful status. She decided to move higher in the administrative proceedings and filed her case before the Board of Immigration Appeals (BIA). The BIA is an administrative appellate body, part of the Executive Office of Immigration Review (EOIR). The EOIR is an independent agency within the US Department of Justice. The BIA reviews the decisions of the immigration courts by interpreting federal immigration laws.

While her case was under BIA review, Leila got married to a US citizen. The genuine relationship led to the US citizen filing an I-130 spousal petition for Leila. The petition was approved, but because she had a pending deportation case, she was not allowed to apply for adjustment of status to lawful permanent residency.

The BIA concurred with the immigration judge’s ruling. Leila’s lawyer pursued the case outside the administrative level and filed an appeal with a US district court. Leila is hoping that with a victory in the district court level, she would be subsequently and ultimately be allowed to stay with her US citizen husband.

Jack has a pending petition by his US citizen father filed in 1998. Wanting to be with his father and look for better jobs, Jack submitted false documents as a seaman. He got a C1-D visa and was admitted under a different name. Remember, visas are issued at consular posts (consuls are under the state department).

He was able to get a job “under the table” by submitting a Social Security card he bought from a fixer – using his real name.

Subsequently he received a letter from the Social Security Administration (SSA) that the number was not valid. Jack continued working until he could no longer get a job unless he presented a valid SS card and number. He decided to return to the Philippines in 2014 by obtaining a travel document – under his real name – from the Philippine Consulate in Los Angeles, California. His father, the petitioner, died in 2004.

Jack’s priority date under the F3 category (married sons/daughters of US citizens) became current in January of this year. He received a letter from the National Visa Center (NVC) and paid the visa fees using the assigned case number.

The siblings of Jack (who are US citizens) did not report the death of the petitioner. They believed that since the death was reported to SSA and the Department of Veterans Affairs, the Department of State and the Department of Homeland Security would automatically be notified as well.

When Jack was advised to report the death of the petitioner to NVC, his petition was returned to the USCIS for automatic revocation.

Jack learned, however, that he could still apply for his immigrant visa by submitting a request to reinstate the petition for humanitarian consideration. His reinstatement request was granted. However, when he applied for the visa, the consul discovered that he entered the US unlawfully, worked without authorization and misrepresented facts.

Jack believed the Philippine consul who said that his unlawful entry and stay in the US would not be reported to the USCIS, ICE or CBP. Jack forgot that by submitting a fake SS card with a federal agency, his previous stay in the US would come to light. He was also not aware that the embassy is part of a multi-agency task force of the Philippine and US governments to weed out visa fraud.

Jack’s immigrant visa application was denied. The good thing is that he was barred not permanently but only for 10 years (from the date of departure from the US) for being unlawfully present in the US for more than a year. Jack could apply again in 2024.

Gloria, Jack’s sister, also has an approved petition from the same deceased petitioner. However, Gloria has chosen to remain in the US and intends to apply for reinstatement as well. Gloria would have to submit her reinstatement request with the appropriate USCIS office and if granted, apply for adjustment of status.

Like Jack, the application for reinstatement must be approved first before the benefit of an immigrant visa or green card is pursued. Jack’s application was granted for reasons of family unity, i.e., Jack and his siblings in the US had been apart and the siblings submitted evidence of financial and psychological reasons.

 

Gloria would be hard pressed to claim the same reason of reunification because she has been in the US with her, and Jack’s, siblings.

Herminia was a holder of a five-year G5 visa (as a personal employee of principal G-1 visa holders to enter into the US to render services to the principal – a member of an international organization).

Before the end of her contract, the former G-1 principal was recalled. Since Hermie’s G-5 visa is specific to the previous G-1 visa holder, she has to file a new application with the USCIS. The new employer failed to submit financial documents to prove that Hermie would be paid the prevailing wage. She worked odd jobs without applying for employment authorization honestly convinced that her visa allowed her to do so.

While her visa was still valid, Hermie decided to return to the Philippines. This month, she applied for a tourist visa. Her application was refused for overstaying. Hermie thought that the validity of her visa constituted lawful stay in the US. Since her unlawful stay was more than six months but less than a year, she was barred for five, instead of Jack’s 10-year inadmissibility.

The compartmentalization of authority to grant or refuse a visa or immigration benefit in the US is anathema to a one-size fits all solution.

Knowing what lies ahead is essential before applying for a visa, or pursuing another course of action while already in the US.