ImmiTips

The U.S. Consulate General in Chennai, India has announced that it will no longer process Immigrant Visa petitions. As of January 1, 2012, the U.S. Embassy in New Delhi and the U.S. Consulate in Mumbai will be the only centers in the country that will accept and process Immigrant Visas. For more information, please visit the Consulate’s website.

According to §212(a)(9)(B) of the Immigration and Nationality Act (INA), any visitor to the United States who remains in the country without status may accrue unlawful presence. A person that has allowed unlawful presence to accrue for 180 days or more is subject to a three year statutory bar on reentry. For periods of unlawful presence greater than one year, the penalty is a ten year bar on reentry. A person may begin to accrue unlawful presence upon the expiration of his or her I-94. With this in mind, the denial of an application could potentially have negative implications on the status of the applicant for future or subsequently filed applications, if not for USCIS’ policy of equitable tolling.

If a nonimmigrant visa holder files the proper documentation for a change of status or extension of stay in a timely manner (i.e. before the expiration of his or her I-94 or duration of stay), (s)he does not accrue unlawful presence for the time that his or her application is pending. Once his or her original I-94 expires, (s)he is no longer in an authorized status, but is still exempt from the accrual of unlawful presence. The statutory provisions at INA §212(a)(9)(B)(iv) provide that in such cases the first 120 days after the expiration of the I-94 will be tolled for good cause, meaning that they will not be counted as unlawful presence for the purposes of the statutory bar on reentry.

The Adjudicator’s Field Manual (AFM), however, has prescribed much more liberal policies for the Service’s response in such matters. The AFM states that, so long as the petition is not denied on the grounds that it is frivolous or untimely, or that the applicant worked without authorization, unlawful presence will not accrue before a decision is made, no matter how long an application is pending. See AFM at 40.9.2(b)(3)(B). The above statutory and policy protections apply even when the applicant’s request is denied, with the above stated qualification that it must not have been filed frivolously—if the application is found to have been filed fraudulently or in an untimely manner, or if the applicant worked without authorization, the date of accrual begins the day his or her I-94 expired.

Once the applicant’s request has been denied, any further action accrues unlawful presence, including appeals on denied petitions and motions to reopen or reconsider. Unlawful presence accrues throughout the appeals process and is counted against the applicant should his or her motion or benefit be denied. If the motion or benefit is granted, the unlawful presence is removed and the applicant is returned to authorized status extending back to the date his or her I-94 expired. See AFM at 40.9.2(b)(3)(D).

USCIS’ policy of tolling unlawful presence while an application is pending protects applicants from being forced to abandon pending applications upon the expiration of their status. Due to equitable tolling, applicants may remain in the U.S. legally for the duration of the application process, even after their previously approved status has expired.

Secure Communities is a government program instituted by the Department of Homeland Security that encourages interaction between state and local authorities, and Immigration and Customs Enforcement (ICE), in order to increase the efficacy of immigration enforcement and dedicate the highest priority to criminal aliens who pose the largest threat to public safety. DHS hopes that the program will optimize ICE’s use of the limited funds appropriated each year for immigration purposes.

In theory, Secure Communities should not place any greater burden on local law enforcement, but rather should rely on existing information-sharing systems. State and local authorities regularly submit the fingerprints of those they arrest to the Federal Bureau of Investigation (FBI) in order to check for a criminal background. Secure Communities utilizes this system by requiring the FBI to immediately forward the prints on to ICE. ICE then runs the prints through their databases to see the immigration status of the arrestee and to see if (s)he has ever come into contact with ICE before. If the system finds a match for the arrested individual and (s)he is unlawfully present or otherwise removable, ICE then should prioritize removal based on the determination of which individuals pose the greatest threat to public safety as determined by the severity of their crimes.

In making a determination of removability, ICE takes several factors into consideration including: the person’s criminal history, immigration history (e.g. previous orders of removal, etc.), family ties to the U.S., duration of stay, serious medical issues, etc. In cases involving minor crimes, ICE will often offer the person the option of voluntary departure. In such cases, the person must return to his or her country of origin at no cost to the United States government, but is not barred from returning to the U.S. legally in the future (if ordered removed, also known as deportation, the person is barred from reentering the United States for ten years).

It is important to note, however, that the immigration judicial process remains separate from the criminal judicial process. This means that while a person may be found innocent of the crime for which (s)he was arrested, (s)he could still be deported if ICE determines that (s)he violated immigration law. The Secure Communities program does not actually require that the arrested person be convicted of the crime for which (s)he was taken into custody, merely that (s)he is removable pursuant to the regulations set forth in the Immigration and Nationality Act (INA).[1]

This leads many critics of the program to be wary of ICE’s supposed dedication to prioritizing deportations. Fingerprint checks are run through the system at the time of arrest, not the time of conviction. To critics this process seems to undermine the purpose of Secure Communities because it does not provide for the detention and deportation of the most violent criminals, but rather anyone who happens to come into contact with the law. This tendency leads many to worry that the program will do more harm than good.

The Secure Communities program also raises concerns of racial profiling. Many worry that because there is no practical punishment in place for officers who abuse the system, people may begin to take advantage of it, making unwarranted or “discretionary” arrests based on race, simply to question an individual’s immigration background and put him or her into the immigration system.

For Lawful Permanent Residents (LPR) planning to travel outside of the United States for an extended period of time (more than one year), it is important to obtain a reentry permit prior to travel. Applying for a reentry permit before leaving the U.S. establishes that the LPR did not intend to abandon his or her permanent resident status in the U.S. and allows him or her to reenter the country without applying for a returning resident visa. To apply for a reentry permit, an LPR should file a Form I-131, Application for Travel Document, with USCIS approximately six months prior to the intended date of travel. It is important that the applicant file his or her I-131 in advance, as each applicant must attend a scheduled appointment at an Application Support Center in the U.S. to complete his or her biometrics. This part of the application process cannot be completed abroad, and failure to appear could result in a denial of the application.

In the event that an LPR loses his or her valid, unexpired reentry permit, a duplicate cannot be issued. The LPR must file another I-131 to apply for a new permit. In order to prevent fraud, the applicant must present evidence verifying the loss of the original reentry permit (e.g. a police report). This process, however, does not apply to LPRs abroad, as the I-131 process cannot be completed outside of the country. The following are options to be considered by LPRs who have lost their reentry permit while abroad.

The first option available to LPRs who have lost their reentry permit while abroad is to return to the United States as soon as possible. A person with LPR status in the U.S. may travel abroad and return to the U.S. with a valid I-551, Permanent Resident Card (“Green Card”). No further documentation is needed, as long as the period of travel does not exceed one year. This is the best option for those with the ability to return within a year of the date of departure.

If it is not possible for the LPR to return to the U.S. within a year, (s)he must file a Form DS-117, Application to Determine Returning Resident Status. This form, filed with the Department of State, allows LPRs to return to the U.S. after absences of greater than one year, if they can show their intention to maintain their permanent resident status while abroad. As with the filing of an I-131, it is to the applicant’s advantage to show that (s)he possessed a valid reentry permit, and that it was lost, as this will show the applicant’s intent to maintain status.

Summary: In the event that an LPR misplaces his or her reentry permit while inside the United States, (s)he should file a Form I-131 to replace it. If the LPR is outside the U.S. at the time the document is lost, (s)he should try to return before the one year anniversary of his or her departure. If this is not an option, (s)he must file a DS-117 to apply for a returning resident visa.