You have already heard about it, but there’s a lot of information floating on the internet. We’ve read the State Department cable that laid out the rules, and we summarizes the most salient points in this article.
What’s the rule?
The rule pauses immigrant visa processing for applicants from 75 countries. Here they are:
Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan and Yemen.
“Pausing” here means that the case will proceed as normal, and then at the end, if the applicant is from one of the listed countries, the officer will issue what is called a 221(g) refusal. This 221(g) refusal is typically used in situations where more documents or information are needed to approve the case. If you get this refusal, you would sometimes get instructions on how to proceed – what information to supply, what documents to turn in. In any case, this is the mechanism the state department is now using to pause cases with applicants from specific countries.
Dual Nationality
Let’s talk about the people this rule doesn’t apply to. First of all, those with dual nationalities, who hold multiple passports, could use the nationality that is not listed to bypass the pause.
Not NIV
If you are applying for NIVs, this shouldn’t apply to you. The difference between IV and NIV is a question of permanence. IV is for people who want to move to the US permanently, get permanent residence, maybe become citizens. NIV is for people who want to stay in the US temporarily to accomplish specific purposes. So, people like expats on temporary assignments, students, tourists, etc. all fall in NIV. Those visas – the L1, the H1B, the B1/B2, and many more are not affected by this visa processing pause. Just to be clear, we know that in real life, line between immigrant and nonimmgrant can be a bit blurred because people who plan to stay in the US just for a little bit might change their mind. Just know that in terms of law, there is this divide. If you want to know whether this pause applies to you, look at the type of visa you’re applying for.
Not AoS or Removal of Condition
This rule also shouldn’t affect AoS. Typically there are two ways to become permanent resident. If you are outside the US, you can apply for immigrant visa through consular processing, enter the US with the visa, and become a permanent resident that way. Alternatively, if you are inside the US already as a nonimmigrant, you can apply to adjust into a permanent resident. This would not involve a consulate at all. This visa processing pause should only affect consular processing, but not adjustment of status. In other words, if you are in the US and are currently applying to become a permanent resident without ever visiting a consulate, you should not be affected. If you originally plan to have your petitions reviewed by USCIS and then travel abroad to obtain an immigrant visa, now might be a good time to reassess.
Yes, some people will rightly point out that state department controls visa numbers, and USCIS will eventually need to work with DoS to secure visa numbers. On the other hand, USCIS evaluates public charge issues on their own. This is why until more is announced, I think it’s likely that adjustment will proceed as before.
Besides adjustment of status, the visa pause shouldn’t affect removal of condition either. Public charge issues have already been assessed when the visa is first issued. When you request for removal of condition, you’re not asking for a new visa. You’re not asking for the public charge ground to be reassessed. These cases’ reviews tend to be limited in scope – have you maintained a bona fide marriage? Has your investment generated 10 US jobs? There have been cases in the past where other issues are reassessed, but those are rare cases.
What will happen to those who are affected?
For those who are unfortunately affected by this rule, their cases will be placed on hold until State department comes up with a new standard to assess. No one has indicated any clear deadline, so my guess is as good as yours.
Alternatives
There might be alternatives that circumvent this pause.
Remember I mentioned earlier that NIVs should not be affected. If you’re an employer working with someone from the listed country to enter with an IV, it could make sense to change track to an NIV. Just be mindful that depending on how far you’d gone with the IV process, immigrant intent may become an issue that needs careful treatment. This is something you’ll want a lawyer’s help with.
For those who were going to enter because of marriage with a US citizen or permanent resident, there may be solution through the K-1 fiancee visa. I even think the K-3 visa could have potential. K-3 was originally designed for those with pending I-130 to enter the US while the I-130 is being review. The problem had always been that the K-3 petition takes about as long as the I-130 to review, so there was rarely any point to do it. Right? By the time that you can enter with the K-3, your I-130 is already approved, so you might as well just enter using the immigrant visa. That K-3 petition ended up being a waste of time and money. Now, things might be a little different. Assuming that the K-3 petition was approved first, one could enter with the K-3, which is a nonimmigrant visa, which allows them to bypass the immigrant visa pause.
I should be clear that even we lawyers are not certain about the state of K-1 and K-3. They are technically nonimmigrant visas, but we know that they are designed for someone to enter and then become permanent residents. How will the State Department treat K-1 and K-3? We won’t know until someone tries, or State Department issues further guidance.
Finally, there is the specific US national interest exception. Presumably, if the applicant is from one of the listed countries, but their entry to the US serves a specific US national interest, they can be excepted from the visa processing pause. It’s not clear what specific US national interest entails. If I have to guess, someone who is entering with EB-2 NIW may by default have better chance to fall in this exception, because the entire basis of their case is that their work serves a U.S. interest. Again, this can only be clarified through guidance or practical experience.
Conclusion
That pretty much covers all we know for the time being. Has this rule affected you? Contact us. We can help.