U.S. Department of State Vietnam Visa Approvals for July, August, and September 2018

The U.S. Department of State (DOS) has released its visa issuance statistics for July, August and September 2018. 

Immigrant Visas

For Vietnamese nationals, a total 2,637 immigrant visas were issued in July; 3,836 were issued in August; and 2,393 were issued in September. 

July: Only 83 of the immigrant visas were classified as IR-1 visas while 194 were CR-1 visas.

A total of 2,592 immigrant visas were issued by U.S. Consulate in Ho Chi Minh City while 3 immigrant visas were issued by the U.S. Embassy in Hanoi. 

August: A total of 82 IR-1 visas and 148 CR-1 visas were issued in August. Majority of the immigrant visas were issued by the consulate in Ho Chi Minh City, specifically, 3,785 immigrant visas were issued in Ho Chi Minh City while only 7 immigrant visas in Hanoi. 

September: Despite the decrease of immigrant visas being issued, there was an increase in the visas issued to foreign spouses of U.S. citizens. There were 93 IR-1 visas and 204 CR-1 visas issued to those married to U.S. citizens. 

All 2,370 immigrant visas issued in September were from the Ho Chi Minh City Consulate. There were no immigrant visas issued by the U.S. Embassy in Hanoi. 

There were no EB-5 immigrant investor visas from July through September.

Nonimmigrant Visas

A total of 14,071 nonimmigrant visas were issued to Vietnamese nationals in July; 13,204 were issued in August; and 9,441 were issued in September. 

July: Out of 14,071 nonimmigrant visas issued, 8,264 visas were B-1/B-2 visas. A B-1/B2 visa is issued to those who are visiting the U.S. for temporary business and/or pleasure purposes. 5,135 visas were issued to Vietnamese students aspiring to study in the United States: 4,942 F-1 visas were issued to academic and language students, 13 M-1 visas were issued to vocational students and 180 J-1 visas were issued to exchange visitors such as exchange students, au pairs, professionals, scholars, and teachers. 

There were 9,588 nonimmigrant visas were issued by the consulate in Ho Chi Minh City while 3,836 nonimmigrant visas were issued by the Embassy in Hanoi. 

August: Majority of the 13,204 nonimmigrant visas issued in August were B1/B2 visas (9,602). There was a decrease of visas issued to Vietnamese students for academic purposes. 2,754 F-1 visas, 9 M-1 visas and 130 J-1 visas were issued in August. 

A total of 8,880 nonimmigrant visas were issued in Ho Chi Minh City while 3,663 nonimmigrant visas were issued in Hanoi.

September: Lastly, 8,158 B-1/B-2 visas were issued in September. 405 F-1 visas were issued to academic and language students while 31 M-1 visas were issued to vocational students and 72 J-1 visas were issued to exchange visitors. 

There were 6,800 nonimmigrant visas were issued by the in Ho Chi Minh City while 2,058 nonimmigrant visas were issued in Hanoi.

The numbers released by DOS only show approvals and not the number of refusals which is not available to the public.




by: Enterline and Partners Consulting

Is a Final Rule Coming on Changes to EB-5, Especially an Increase to the Minimum Investment Amount?

Is a Final Rule Coming on Changes to EB-5, Especially an Increase to the Minimum Investment Amount?

The answer: Maybe. 

Currently, any change to the US$500,000 minimum investment amount in a Targeted Employment Area (proposed increase to US$1,350,000) would require the publication of the Final Rule for the related “EB-5 Immigrant Investor Program Modernization” regulation. This is currently listed on the “Fall 2018 Unified Agenda action dates,” but may or may not occur in November. In the past, the timetable for government action on the same regulation has been: February 2018 and August 2018. In both cases, the relevant U.S. agency, the Department of Homeland Security did not take any action and did not publish as per its scheduled timetable.  

In addition, USCIS Director Lee Cissna, speaking in October, did not appear to think that the “EB-5 Modernization” regulations were on the brink of finalization. He said: “We’re just not ready yet. We’re still working on it.” 

It’s good to note that even if the relevant regulation is published in November, is should (as a non-major rule) take effect not less than 30 days after publication and could even be extended longer than 30 days. 

We do not believe the regulations will be published this November.  We might know more following the USCIS most recent announcements public stakeholder meeting scheduled for November 19th.

by: Enterline and Partners Consulting

Homeland Security Proposes To Define "Public Charge" For Immigration Purposes

     The U.S. Department of Homeland Security (DHS) recently announced that it will define the term “public charge” for immigration purposes.

     Currently, interviewing consular officers at U.S. Embassies and Consulates are authorized to refuse a visa if it is in their opinion that they are likely to become a public charge. Under the proposed rule, “public charge” will be defined as a person who receives certain government benefits. Benefits to be included in the proposed rule include cash assistance, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid (with limited exceptions) Supplemental Nutrition Assistance Program (SNAP, or food stamps), and iSection 8 Public Housing.

     However, receipt of benefits under certain circumstances will be not held against an alien seeking to immigrate to the United States. For example, vulnerable individuals such as asylees and refugees cannot be held inadmissible on the ground of public charge. Likewise, public benefits received by aliens serving in active duty or in the Ready Reserve component of the U.S. Armed forces and their spouse and children will not be considered in the determination of whether said alien will be a public charge. Finally, receipt of some public benefits by an alien’s U.S. citizen children or the children and adoptive children of U.S. citizens will also not affect their immigration applications.

     The proposed rule aims to promote immigrant self-sufficiency and to ensure that immigrants will likely not be a burden on American taxpayers. It will publish in the Federal Register in the coming weeks. Once published, the public will be allowed 60-day to comment.



by: Enterline and Partners Consulting

October Visa Bulletin EB-5 Visa Category Now “Unauthorized” for Visa Issuance

Last week, U.S. Department of State – Bureau of Consular Affairs published the October Visa Bulletin. The EB-5 Regional Center category has been listed as “U” meaning unauthorized for issuance. This is because the Immigrant Investor Program (aka Regional Center Program) is set to expire on September 30, 2018.

The final action dates for the EB-5 regional center category has been listed as unavailable as a result of the upcoming “sunset date” of September 30, 2018 for the Immigrant Investor Program When there is legislative action reauthorizing the EB-5 Program all final action dates would immediately become “Current” for all countries except those countries with high demand. 

The Immigrant Investor Program has been a temporary program since it was first enacted by Congress in 1993. Since 2015, it has been temporarily extended many times. While there is no guarantee that it will be extend this time, there is an expectation that it will continue to be extended and available for EB-5 investors choosing to invest in projects sponsored by regional centers.

October Visa Bulletin

by: Enterline and Partners Consulting

USCIS Announces Fee Increase For Premium Processing To $1,410

USCIS announced an increase in the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, beginning on October 1, 2018. The premium processing fee will increase to $1,410.  This increase will affect any L-1 and EB-1C petitions that our clients may want to file and pay for premium processing.

Premium processing is an optional service that is currently authorized for certain petitioners filing Forms I-129 and I-140. Premium processing allows petitioners to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.

by: Enterline and Partners Consulting

Clarification on STEM OPT Extension Reporting Responsibilities and Training Obligations

Designed by Pressfoto / Freepik

     

     The United States Citizenship and Immigration Services (USCIS) announced clarification for F-1 visa students completing degrees in science, technology, engineering and mathematics (STEM) participating in an Optional Practical Training Extension (OPT).

     In a document dated August 17, 2018 posted on the USCIS website, the Department of Homeland Security (DHS) clarified that participants of the OPT for STEM may engage in a training experience that takes place at a site other than the employer’s principal place of business as long all of the training obligations are met, including the existence and maintenance of a bona fide employer-employee relationship between the employer and the student. 

     DHS will review whether there is a bona fide employer-employee relationship between the STEM OPT student and the employer signing the Training Plan for STEM OPT Students (Form I-983). They will also verify that the employer that signs the Training Plan is the same entity that: (1) employs the STEM OPT student and (2) provides the practical training experience. As per USCIS, to establish a bona fide employer-employee relationship, the employer that signs the Training Plan must not be the STEM OPT student’s “employer” in name only. A bona fide employer-employee relationship also excludes the student working for the employer on a “volunteer” basis.

     USCIS clarification on STEM OPT comes after an earlier update where announced that STEM OPT students were prohibited from engaging in OPT at third-party locations, such as the place of business or worksite of the employer’s clients or customers. The prohibition was made due to the U.S. Immigration and Customs Enforcement’s (ICE) lack of authority to visit said third party locations.

     The recent announcement also clarified reporting responsibilities for STEM OPT students and participating employers which must be submitted to a STEM students’ Designated School Official (DSO) by submitting a modified Training Plan at the earliest available opportunity.  Employers must also report to the DSO a STEM OPT student’s termination of employment or departure within five (5) business days. On the other hand, STEM OPT students must report changes to the following information to the DSO within ten (10) business days of the change:

• His or her legal name

• His or her residential or mailing address

• His or her email address

• His or her employer’s name

• His or her employer’s address. 

    If there have been no changes to the information listed above, the STEM OPT student must still confirm the said information to the DSO every six (6) months. 

     Prompt reporting of the material changes ensures that DHS can exercise effective oversight of the STEM OPT program. 

by: Enterline and Partners Consulting

Final Guidelines on Unlawful Presence for Students and Exchange Visitors

United States Citizenship and Immigration Services (USCIS) August 9, 2018 policy memorandum revises the calculation of unlawful presence of those under F, J, or M nonimmigrant visa status and their dependents during their stay in the United States. 

Under the new memorandum, those holding F, J, or M visas who have failed to maintain their 2018 will have started to accrue unlawful presence on that day or on the earliest of the following:
nonimmigrant status before August 9,

• If the DHS made a formal finding that the F, J, or M visa holder violated his or her nonimmigrant status: the day after the U.S. Department of Homeland Security (DHS) denied the request for an immigration benefit;

• If the F, J, or M visa holder was admitted for a certain date: the day after the authorized period expired;

• If an immigration judge ordered the F, J, or M visa holder excluded, deported, or removed: the day after the removal order is issued, regardless of whether or not the decision is appealed.

For those who failed to maintain their nonimmigrant status on or after August 9, 2018, unlawful presence begins on the earliest of the following:

• The day after the F, J, or M visa holder no longer pursues the course of study or the authorized activity;

• The day after the F, J, or M visa holder engages in an unauthorized activity;

• The day after completing the course of study program, including any authorized practical training and any authorized grace period;

• The day after the authorized period expired if the F, J, or M visa holder was admitted for a certain date;

• The day after an immigration judge ordered the F, J, or M visa holder excluded, deported or removed, regardless of whether or not the decision is appealed.

To maintain nonimmigrant status, F, J, or M visa holders must be enrolled in a full-time course study or remain in the exchange program, not engage in unauthorized employment or other unauthorized activities, and complete the academic or exchange program in a timely manner or obtain an extension from the school or exchange program. 

F, J, or M visa holders can accidentally or unknowingly violate their status through seemingly innocent activities. These activities include, but are not limited to dropping below a full course or working an hour over the allowed number of working hours. Those actions may then lead to a 3-year or 10-year ban since persons who accrues more than 180 days of unlawful presence in the U.S. is generally barred from returning to the U.S. for 3 years while a person who departs after accruing one year or more of unlawful presence is barred from returning for 10 years. 

An application for reinstatement filed by an F and M visa holder not more than five months after they have been out of status may have their accrual of unlawful presence tolled while the application for reinstatement is pending with the USCIS. If the application is denied, the accrual of unlawful presence resumes on the day after the denial. If an F, J, or M visa holder’s application for reinstatement is ultimately approved, they will generally not accrue unlawful presence for the time that they were out of status. 

This policy also affects the dependents of those who are studying or will study in the U.S. since the dependent’s authorized period of stay is contingent on the F, J, or M visa holder remaining in a period of authorized stay and ends when the F, J, or M visa authorized period of stay ends, or upon the dependent’s own conduct.

by: Enterline and Partners Consulting

USCIS Adjudicator’s Discretion Restored in Denying Applications, Petitions and Requests without Issuing RFE’s or NOIDS.

In a new policy memorandum issued by the United States Citizenship and Immigration Services (USCIS) last July 13, 2018, USCIS adjudicators are given discretion to deny applications, petitions, or requests without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the initial evidence is not submitted or if the evidence in the record does not establish eligibility. The policy is to take effect on September 11, 2018 and applies to all applications, petitions, and requests received after said date.

The new policy memorandum departs from (and rescinds) a policy memorandum from June 3, 2013 which stated that adjudicators should issue an RFE unless there was “no possibility” that the deficiency in the application, petition, or request could be cured by the submission of additional evidence. Under the June 3, 2013 memorandum, denials issued without an RFE or a NOID were only issued for statutory denials such as if the applicant, petitioner or requestor has no legal basis for the benefit that they are applying, petitioning, or requesting for or if the benefit or relief requested is under a program that has been terminated. 

With the rescission of the “no possibility” policy, the memorandum means that, aside from statutory denials, USCIS may also deny applications, petitions and requests without issuing an RFE or a NOID if not all the required evidence is submitted with the benefit request. Said denial will be based on lack of required initial evidence. Examples of cases where there may be a denial without issuing an RFE or a NOID include, but are not limited to:

• Waiver applications submitted with little to no supporting evidence; or

• Cases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission. For example, family-based or employment-based categories where an Affidavit of Support (Form I-864), if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).

The policy is intended to discourage frivolous or substantially incomplete filings and to encourage applicants, petitioners, and requestors for U.S. visas for overseas education and green cards to be diligent in collecting and submitting required evidence.

by: Enterline and Partners Consulting

U.S. Department of State Vietnam Visa Approvals for May and June 2018

U.S. Consulate in Ho Chi Minh City

     The U.S. Department of State (“DOS”) has published a list of visa issuances for both immigrant and nonimmigrant visas for the months of May and June 2018. 

     There were 1,643 immigrant visas issued for Vietnamese nationals in May. Eighty-four were IR-1 visas and 187 were CR-1 visas. The IR-1 visa and the CR-1 visa are issued to foreign spouses of U.S. citizens. IR-1 visas are issued to those who have been married to a U.S. citizen for more than two years while CR-1 visas are issued to foreigners who have been married to a U.S. citizen for less than two years. 

     There were no EB-5 visas issued in Vietnam. 

     A total of 14,633 nonimmigrant visas were issued to Vietnamese nationals in May. Of that number, 12,080 were B-1/B-2 visas. A B-1/B-2 visa is issued to those visiting the U.S. for temporary business and/ or pleasure. There were 1,113 visas issued to Vietnamese students aspiring to study in the United States. This included 1,110 F-1 visas for academic and language students, 3 M-1 visas for vocational students, and 125 J-1 visas for exchange visitors such as exchange students, au pairs, professionals, scholars, and teachers. 

     The majority of the visas issued from Vietnam were issued by the consulate in Ho Chi Minh City. For May, the consulate in Ho Chi Minh issued 1,601 immigrant visas and 10,136 nonimmigrant visas while only 6 immigrant visas and 3,796 nonimmigrant visas were issued from Hanoi.

     The number of immigrant visas approved for Vietnamese nationals slightly decreased to 1,602 in June. There was, however, an increase in the number of IR-1 (103) and CR-1 (238) visas approved. 

     On the other hand, June showed a slight increase in the number of nonimmigrant visa approvals for Vietnamese nationals bringing the total to 14,945. Majority of the visas issued were from the B-1/B2 category (10,430 visas). The number of academic visas (F, M, and J) increased nearly 173% because of the upcoming U.S. academic year. Specifically, 3,147 F-1 visas, 8 M-1 visas, and 228 J-1 visas were issued to Vietnamese students. 

     Most of the June issued visas from were also issued by the consulate in Ho Chi Minh. The consulate in Ho Chi Minh issued 1,566 immigrant visas and 10,309 nonimmigrant visas. The consulate in Hanoi issued 8 nonimmigrant visas and 3,942 nonimmigrant visas. 

     These numbers only show the approvals and does not in any way show a trend since data on the number of applicants per month and the number of rejections is not available to the public.

by: Enterline and Partners Consulting

How to Apply for Naturalization if your American Spouse is Stationed Abroad

Vietnamese spouses of U.S. citizens are generally eligible for green cards and eventually U.S. citizenship based on their marriage. In general, a person may only be naturalized after showing that they have resided in the United States as a green card holder for a certain prescribed period of time. However, what about Vietnamese citizens who are married to an American citizen but their American spouse is living overseas in Vietnam for employment reasons? 

To address this situation, Act 319(B) of the Immigration and Nationality Act (INA) provides for an exception to the residency requirement for a Vietnamese spouse married to a U.S. citizen provided that the U.S. citizen is “regularly stationed abroad” under a qualifying employment. A qualifying employment abroad means that the American spouse must be stationed abroad for at least one year under an employment contract or order in any of the following entities or position:

• Government of the United States (including the U.S. armed forces) 
• American institution of research recognized by the Attorney General; 
• American firm or corporation engaged in whole or in part in the development of foreign trade and commerce of the United States or a subsidiary thereof; 
• Public international organization in which the United States participates by treaty or statute;
• Authorized to perform the ministerial or priestly functions of a religious denomination having a bona fide organization within the United States; or 
• Engaged solely as a missionary by a religious denomination or by an interdenominational organization having a bona fide organization within the United States.

To qualify for naturalization under Act 319(B) of the INA, the Vietnamese spouse must establish that he or she meets the following criteria:

• 18 years or older at the time of filing; 
• A lawful permanent resident at the time of filing of the naturalization application; 
• Continue to be the spouse of the U.S. citizen regularly stationed abroad in qualifying employment for at least one year; 
• Married to a U.S. citizen regularly stationed abroad in qualifying employment for at least a year; Has a good faith intent to reside abroad with the U.S. citizen spouse upon naturalization and to reside in the United States immediately upon the citizen’s termination of employment abroad; 
• Establish that he or she will depart to join the citizen spouse within 30 to 45 days after the date of naturalization; 
• Understanding of basic English, including the ability to read, write and speak; 
• Knowledge of basic U.S. history and government; 
• Demonstrate good moral character for at least three years prior to filing the application until the time of naturalization; 
• Attachment to the principles of the U.S. Constitution and well-disposed to the good order and happiness of the U.S. during all relevant period under the law. 

Although the process appears straightforward, it is still an unusual case to handle for USCIS officers. In fact, many USCIS officers have never handled such a case and may be unaware of the exception granted under Act 319(B). Applicants are advised to take note of the laws and procedures in applying for naturalization under A 319(B) of the INA.


by: Ryan Barshop
Ryan Barshop is a co-founder of Enterline and Partners Consulting. His specialty is family-based immigration to the United States.

Changes in Immigration Policy

    A series of small moves concerning the Trump Administration's immigration policy have recently been undertaken.

      CNN reports the following actions made by the administration:

• Attorney General Jeff Sessions has issued a Decision directing the Board of Immigration Appeals (BIA) to refer cases for his review when such cases have issues relating to when there is “good cause” to grant a continuance for a collateral matter to be adjudicated. Under this Decision, the BIA’s decisions on the matter are automatically stayed pending the Attorney General’s review.

• The Commerce Department announced that it will include on the 2020 Census a question about U.S. citizenship.

• Immigration and Customs Enforcement (ICE) announced a new directive wherein immigration officers will no longer automatically release pregnant women from immigration custody but will instead require a case-by-case evaluation.

• The State Department proposed that visas applicants and alien registration be required to submit five years of identifiers for certain social media platforms. Previously, visa applicants were required to submit prior telephone numbers, email addresses, and international travel.

• Department of Homeland Security (DHS) confirmed that the White House is reviewing a proposal requiring immigration caseworkers to consider a wider range of factors to determine whether an applicant is likely to become dependent on public assistance. The proposal seeks to expand the term “public charge” as used in the Immigration and Nationality Act and to define the types of public benefits that are considered in the determinations. U.S. Law authorizes the rejection of immigrants if they are likely to become a “public charge.”

• The Department of Justice and the City of West Spring Palm Beach announced that it has reached an agreement regarding West Palm Beach’s Resolution Number 112-17. The City agreed to issue a memorandum stating its position that its local laws do not restrict information sharing with the DHS.

    Immigration lawyers say that the greater scrutiny of visa applications have slowed down the process and have set the bar higher for long standing categories of visas.


by: Enterline and Partners Consulting

Changes in the Accrual of Unlawful Status for foreign students in the United States

Designed by Freepik

      On May 11, 2018, U.S. Citizenship and Immigration Services (USCIS) proposed changes in the calculation of unlawful presence for students currently studying in the United States on an F-1, J-1 and M-1 visa. The proposed changes are a result of President Donald Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States and is set to take effect on August 9, 2018. 

      The changes will fix specific times when foreign students in the U.S. in F, J and M visa status start to accrue unlawful presence. 

      Under the policy memorandum, unlawful presence will be calculated as follows:

1. Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:
   
   
   1. The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
   2. The day after their I-94 expired; or
   3. The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).


2. Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
   
   
   1. The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
   2. The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
   3. The day after the I-94 expires; or
   4. The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

      The amount of time of unlawful presence of an F-1 visa holder also carries with it different penalties. Foreign students who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to three-year or 10-year bar to admission, depending on how much unlawful presence they accrued before they departed the United States. Foreign students who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

      Those foreign students studying in the U.S. or hoping to study in the U.S. must take extra care to leave the U.S. as soon as their valid status ends to avoid the accrual of unlawful presence.


by: Enterline and Partners Consulting

Fraud in Obtaining US Visas

Every year, hundreds of thousands of Vietnamese apply for a U.S. visa, whether it be for tourist purposes or to become an immigrant in order to live out the American dream. However, some have found the process to be too long or the risk of denial to be too great. To ensure an approval, they look to other avenues for help in getting their U.S. visas approved.

Some make use of visa agents who assure that their U.S. visas will be approved. Unfortunately, some of these visa agents provide their clients with documents such as fake passports or financial documents. Those seeking a U.S. visa pay fees that could end up being exorbitant and non-refundable fees for orientation, coaching and of course, fake documents. If they are successful in their visa applications, the applicants are required to pay their visa agents a "success fee," which is just as exorbitant, if not more.

In scenarios like these, it is not just the visa agencies that may be criminally charged. The applicants will also face consequences such as deportation for their use of fake documents. 

On the other hand, some make use of recruiters who take advantage of the applicant’s economic needs. As it could take years for visas to be approved, it is hard to predict what needs will have to be met by the workers. Recruiters have the advantage of being able to move people around according to the demand. However, applicants don’t realize the underlying risks of signing with a recruiter. There are some instances where the applicant signs contracts wherein their recruiters take a percent of their salary or they are paid less than the minimum wage. The recruiters hold them hostage to their contracts through the constant threat of deportation. The workers become especially vulnerable due to their lack of knowledge and understanding of what it takes to get a new contract to maintain their visa.

Applicants from Vietnam should be wary of visa agencies and recruiters that are using illegal means to obtain a visa to the United States. They should be more circumspect in choosing immigration consultants lest they fall victim to unscrupulous groups. In doing so, applicants should be informed that only licensed attorneys can legally offer immigration assistance.

by: Enterline and Partners Consulting