What is the practical impact of the government’s closure upon the immigration process? It recently came to this blogger’s attention that the following has been posted on the official website of the United States Embassy in Bangkok, Thailand:

The U.S. Embassy in Bangkok and Consulate General Chiang Mai remain open to the public. As always, our priorities remain providing safety, security, and service to U.S. citizens. We are open for all consular services, including visa processing.

It could be inferred that the Embassy is attempting to dispel rumors that a shutdown will negatively impact the processing of US visa applications as well as applications for US passports, Consular Reports of Birth Abroad (CRBA), and various notarial services requested by Americans living in Thailand. Hopefully, the recently announced government shutdown will not last long and thus not cause any great problems for those seeking visas to the United States of America. However, a protracted shutdown could mean that processing of US visa applications could move at a slower pace, or, in a worst case scenario, be discontinued until such time as a budget is agreed upon. Hopefully, this will not happen and the processing of applications will continue apace.

Meanwhile, it is likely that the shutdown will not affect processing of immigration petitions at the United States Citizenship and Immigration Service (USCIS). As USCIS is funded by the fees paid by petitioners, it seems likely that a government shutdown will not adversely impact those seeking immigration benefits from USCIS. Again, as the United States has not seen a government shutdown in nearly two decades some of the details about the impact of the current shutdown remain somewhat speculative. Readers of this blog should take note that further information will be provided herein as it becomes available.

It should be also noted that although these USCIS estimated processing times can provide a general framework for understanding the time frames for petition adjudication by USCIS, these estimates do not necessarily reflect the estimated time frame for the entire US visa process especially if the unique circumstances of a given case requires Consular Processing of a US visa application at a US Embassy or US Consulate abroad.

For a married couple seeking an IR1 visa or a CR1 Visa for a foreign spouse of US Citizen the process begins at the USCIS where the initial petition will be adjudicated. Assuming USCIS approves the initial petition, then the petition will be forwarded to the National Visa Center (NVC). NVC will require certain documents before forwarding the application to a US Embassy or Consulate abroad where a foreign spouse must undergo an interview prior to the Consular Officer making a decision regarding visa issuance. In some cases, the Consular Officer may approve the visa application at the interview. Meanwhile, in some circumstances, the officer may deny the application (especially where a ground of inadmissibility is found to exist in the case and under such circumstances the applicant must be granted an I-601 waiver, or something similar, prior to the application receiving further favorable treatment). In some cases, the officer may simply find that some further evidence of the relationship or documentation pertaining to the foreign national is lacking and will thereby deny the application pursuant to section 221(g) of the Immigration and Nationality Act. Under these circumstances, the 221(G) denial may be overcome by presenting further evidence to the Consular Officer and upon their finding that the relevant requirements have been met the application may be approved.

As one can infer from the above example, the USCIS estimateed  processing times may not accurately reflect the total time it may take to obtain a US visa since the process is sometimes more complex than simple USCIS petition approval.

The following was quoted directly from a recent posting on the website CaldwellTeaParty.org:

The next month will be marked by intense negotiations on the debt ceiling, and the GOP will then have to decide on a shutdown or a bipartisan budget deal with Kent Conrad and his allies.

The above citation most clearly and concisely sums up the current state of affairs regarding the possibility of a government shutdown. The administration encourages readers to click on the above links as this issue is quite complex. Those interested in understanding the ramifications of a government shutdown may be best informed by this administration quoting directly from Wikipedia:

A government shutdown occurs when a government discontinues providing services that are not considered “essential.” Typically, services that continue in spite of a shutdown include police, fire fighting, armed forces, utilities, air traffic management and corrections.

A shutdown can occur when a legislative body (including the legislative power of veto by the executive) cannot agree on a budget financing its government programs for a pending fiscal year. In the absence of appropriated funds, the government discontinues providing non-essential services at the beginning of the affected fiscal year. Government employees who provide essential services, often referred to as “essential employees”, are required to continue working.

Although the above citation clears up the issue of what constitutes a government shutdown, the question likely on the mind of those with foreign loved ones processing through the immigration system is: how would a government shutdown impact the processing of my loved one’s visa? The answer: a Federal government shutdown would result in a sort of “freeze” of most of the immigration apparatus as this falls within the bailiwick of the Federal government. Therefore, a Federal shutdown would likely result in little, if any, action being taken with regard to adjudication of visa applications  at each US Embassy or US Consulate abroad. For further insight it may be best to quote directly from a recent posting on the Diplopundit blog:

In 1995, all visa applications are walk-in.  Today, a good number of consular sections have online appointment systems. Which means, visa appointments will have to be canceled and rescheduled if there is a shutdown.  Consular sections may only be open for life and death emergencies. That means lost passport applications, reports of births abroad, adoption cases, notarials, etc. will all have to wait until the Federal government reopens.

The administration of this blog highly encourages readers to click on the above hyperlinks as the quotation above was found in a very interesting and detailed posting dealing with these issues.

Clearly, the ramifications of a government shutdown will be severe for those awaiting processing of a visa application. Meanwhile, it would appear as though USCIS will continue to operate as normal despite a possible shutdown. To quote directly from the website Martindale.com:

USCIS has announced that, because it is funded by filing fees, it should remain open during a government shutdown. The operations of the four Service Centers should remain largely unaffected. Local USCIS District Offices should also remain open.

Again, this blogger highly encourages readers to click on the hyperlinks above to learn more.

Notice that the above quotation uses the word should. This blogger only points this out as it goes to show how difficult it is to foretell what the impact of a government shutdown would be on the United States Citizenship and Immigration Service (USCIS) since that agency has attempted to remain self-funded through application fees. That said, the overall issue of government shutdown has yet to fully manifest itself, but that should not be construed to mean that it will not. In fact, those seeking American visas are likely to see an overall slowdown in the overall processing of cases as a result of a shutdown (should one actually occur, which remains to be seen).

January 2011

• Monday, January 3: Consular Section In-Service Day (AIT/Taipei)
• Monday, January  17: Birthday of Martin Luther King, Jr. (US Holiday)

February 2011

• Tuesday, February 1: Consular Section In-Service Day (AIT/Taipei)
• Wednesday, February 2 to Monday, February 7: Chinese Lunar New Year Holidays (Local)
• Monday, February 21: Washington’s Birthday (US Holiday)
• Monday, February 28: Peace Memorial Day (Local)

March 2011

• Tuesday, March 1: Consular Section In-Service Day (AIT/Taipei)
  

April 2011

• Friday, April 1: Consular Section In-Service Day (AIT/Taipei)
• Monday, April 4: Children’s day (Local)
• Tuesday, April 5: Tomb Sweeping Day (Local)

May 2011

• Monday, May 30: Memorial Day (US Holiday)
  

June 2011

• Monday, June 6: Dragon Boat Festival (Local)

July 2011

• Monday, July 4: Independence Day (US Holiday)

September 2011

• Thursday, September 1: Consular Section In-Service Day (AIT/Taipei)
• Monday, September 5: Labor Day (US Holiday)
• Monday, September 12: Mid-Autumn Festival (Local)

October 2011

• Monday, October 3: Consular Section In-Service Day (AIT/Taipei)
• Monday, October 10: National Holiday (Local) also Columbus Day (US Holiday)

November 2011

• Tuesday, November 1: Consular Section In-Service Day (AIT/Taipei)
• Friday, November 11: Veterans Day (US Holiday)
• Thursday, November 24: Thanksgiving Day (US Holiday)
  

December 2011

• Thursday, December 1: Consular Section In-Service Day (AIT/Taipei)
• Monday, December 26: Christmas Day (Observed US Holiday)

Those seeking services such as issuance of a Consular Report of Birth Abroad, US Passport, or additional visa pages are well advised to contact and American Citizen Services Section of the nearest US Mission with jurisdiction over the area in which one is physically present.

For the homepage of the official website of the American Institute in Taiwan please click HERE

Those seeking US non-immigrant visas such as the B-2 visa for tourists, the B-1 visa for short term business travelers, the F-1 visa for students, or the J-1 visa for exchange visitors are likely to have their visa application adjudicated by a non-immigrant visa unit of a US Mission abroad. Those seeking immigrant visas for Taiwanese loved ones are likely to process their application through an Immigrant Visa Unit. It should be noted that for purposes of visa application processing the K-1 visa, although technically a non-immigrant US fiance visa, is generally treated as if it were an immigrant visa.

Those seeking Business or Investment visas such as the E-2 visa for Traders, the L-1 visa for intra-company transferees, or an EB-5 visa for immigrant investors should note that an approved immigration petition may be required before a US Mission abroad will process a visa application.

Those seeking advice and/or counsel regarding a pending US immigration matter are well advised to contact a licensed American lawyer in order to gain insight into the practical application of US Immigration law upon the unique facts in a given case.

For related information please see: CR1 Visa.

The following list of official holidays for 2011 has been approved consistent with the provisions of 3 FAM 2336 (American holidays) and the revised Article 73 of the Vietnamese Labor Code. The U.S. Embassy will be closed on these days.

V = Vietnamese Holidays
A – American Holidays

Those seeking services such as issuance of a Consular Report of Birth Abroad, US Passport, or addition of visa pages to an already issued US Passport are well advised to contact the American Citizen Services Section of the nearest US Embassy, US Consulate, American Institute, or US Mission with appropriate Consular jurisdiction.

Those seeking the homepage of the official website of the US Embassy in Hanoi, Vietnam should click HERE.

Those seeking information regarding matters pertaining to United States Immigration are well-advised to contact a licensed American lawyer in order to receive advice and counsel regarding the practical implications of the application of relevant American Immigration law.

Those seeking Non-immigrant visas such as the B-2 visa for tourists, the B-1 visa for business travelers, the J-1 visa for cultural exchange visitors, or the F-1 visa for students are likely to have their visa application processed through the Non-immigrant Visa Unit of the nearest American Mission.

Generally, those seeking US family based visas are required to process their application through an Immigrant Visa Unit of a US Mission abroad. For purposes of visa application processing the non-immigrant US fiance visa (the K-1 visa category) is treated in essentially the same manner as the Immigrant spouse visas such as the CR1 Visa or the IR1 Visa.

Those seeking business and/or investment based visas such as the EB-5 visa or the L-1 visa are generally required to process an Immigration petition at the Department of Homeland Security‘s United States Citizenship and Immigration Service (USCIS) prior to Consular Processing of the visa application.

For related information please see: US Visa Vietnam or K-1 Visa Vietnam.

HOUSTON – A Nigerian man on Monday was stripped of his U.S. citizenship at his sentencing hearing for conspiracy to commit marriage fraud, marriage fraud, naturalization fraud, and making a false statement to a federal agency. The sentence was announced by U.S. Attorney José Angel Moreno, southern District of Texas. The investigation was conducted by the U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI). Ibraheem Adeneye, 33, who is originally from Nigeria and became a naturalized U.S. citizen, was convicted of the charges May 7 by a jury. He has been in federal custody on these charges for about six months. U.S. District Judge Kenneth Hoyt sentenced Adeneye to the time he has already served in prison. The judge also granted the government’s motion to strip Adeneye of his U.S. citizenship. Adeneye is now subject to deportation.

Denaturalization is the process by which a person is stripped of United States Citizenship and returned to foreign national status. Regarding the issue of sham marriage and the United States Immigration process, the report went on to note:

The ICE HSI investigation was initiated in 2008. Adeneye indicated that he was engaged in brokering sham marriages between Nigerian nationals and U.S. citizens so that the Nigerians could obtain immigration benefits, ultimately leading to U.S. citizenship. In return, the U.S. citizen “spouses” received cash payments to assist the Nigerians in the deception.

Incorporating a sham marriage into an effort to obtain United States visa benefits is a serious crime as can be seen from the above cited report. Those thinking of filing for American Immigration benefits should note that it is NEVER a wise course of action to lie to immigration authorities or attempt to deceive the United States government or its officers. Even if one becomes a United States Citizen, then previous fraudulent activity during the visa process could result in possible de-naturalization and criminal charges.

It should further be noted that those seeking American visa benefits should consult a licensed attorney in an effort to gain insight into the immigration process as only an American attorney licensed and in good standing in at least one US state is entitled to provide advice, counsel, and/or possible representation before the United States Department of Homeland Security and the Department of State.

For related information please see: K1 visa Thailand or K1 Visa Singapore.

Legislation aimed at comprehensive immigration reform may take a fresh look at the grounds for excluding foreign nationals that were enacted in the 1990s. All foreign nationals seeking visas must undergo admissibility reviews performed by U.S. Department of State (DOS) consular officers abroad. These reviews are intended to ensure that they are not ineligible for visas or admission under the grounds for inadmissibility spelled out in the INA. These criteria are: health related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligible for citizenship; and, aliens previously removed. Over the past year, Congress incrementally revised the grounds for inadmissibility. Two laws enacted in the 110th Congress altered longstanding policies on exclusion of aliens due to membership in organizations deemed terrorist.

Terrorism has been a key concern for American government officials across the entire spectrum of agencies associated with Immigration and travel to the United States. Public health and safety are also significant issues for American Immigration and Consular Officers. To quote the aforementioned publication further:

The 110th Congress also revisited the health-related grounds of inadmissibility for those who were diagnosed with HIV/AIDS. More recently, the “H1N1 swine flu” outbreak focused the spotlight on inadmissibility screenings at the border. Questions about the public charge ground of inadmissibility arose in the context of Medicaid and the state Children’s Health Insurance Program (CHIP) in the 111th Congress.

Influenza has been concerning to many health officials in recent years. However, for many the removal of HIV/AIDS from the list of diseases which can result in a finding of inadmissibility was a relief as many individuals who were previously inadmissible to the USA may have immediately become admissible after HIV/AIDS was no longer a legal grounds for finding someone inadmissible to the USA. This issue was especially acute in the LGBT community as HIV and AIDS issues seem to have a disproportionate impact upon individuals and couples within that community. The report went on to note that issues pertaining to legal inadmissibility are likely to be discussed in the context of proposed Comprehensive Immigration Reform legislation:

While advocacy of sweeping changes to the grounds for inadmissibility has not emerged, proponents of comprehensive immigration reform might seek to ease a few of these provisions as part of the legislative proposals. The provision that makes an alien who is unlawfully present in the United States for longer than 180 days inadmissible, for example, might be waived as part of a legislative package that includes legalization provisions. Tightening up the grounds for inadmissibility, conversely, might be part of the legislative agenda among those who support more restrictive immigration reform policies.

Many people are found inadmissible to the United States every year. Among those found inadmissible are those who are unable to seek a remedy in the form of either an I-601 waiver or an I-212 waiver application for advance permission to reenter the USA. Individuals who have been found inadmissible and cannot seek a waiver are colloquially referred to as being unwaivably excluded from the United States. Bearing this in mind, many findings of legal inadmissibility can be remedied through use of a waiver. That said, the waiver process and the standard of proof for obtaining a waiver can be difficult to overcome. For this reason, many bi-national couples opt to utilize the services of an American immigration attorney to assist in matters related to United States Immigration. It is always prudent to ask for the credentials of anyone claiming expertise in United States Immigration law as only a licensed American attorney is permitted to provide advice, counsel, and representation in pending matters before the United States Citizenship and Immigration Service (USCIS), the Department of Homeland Security (DHS), and the American State Department.

For related information please see: US Visa Denial.

Effective December 1, 2010, various changes to immigrant visa services are as follows:

• Immigrant visa applicants whose appointments have not been scheduled through the National Visa Center (NVC) (i.e., immigrant visa petitions approved by the U.S. Citizenship and Immigrations Services Manila) may request a visa appointment by visiting the U.S. Embassy in Manila’s Visa Information and Appointment Service online at http://www.ustraveldocs.com/ph or by calling (632) 982-5555. The Visa Information and Appointment Service is open Monday through Friday, from 8:00 a.m. to 8:00 p.m. (Manila time), except on U.S. and Philippine holidays. Callers in the U.S. should call (214) 571-1600, from 7:00 p.m. to 7:00 a.m. (Eastern Standard Time). Callers are able to speak with an English-, Tagalog-, Ilocano- or Cebuano-speaking operator.
• Visa Information and Appointment Service representatives can provide information on visa appointment-related inquiries only. Inquiries on a specific case may be directed to the Immigrant Visa (IV) Unit by e-mail at IVManilaReplies@state.gov or by fax at (632) 301-2591. Petitioners and applicants may also call the IV Inquiry line at (632) 301-2000, extension 5184 or 5185 during normal business hours.
• Immigrant visa applicants who have been scheduled by the NVC for a visa appointment at the Embassy are required to visit the online appointment website to register their delivery address.
• K visa applicants who have been notified by the Embassy to prepare for their interview, must pay the visa application fee of $350 before they can request a visa appointment via the online appointment website or the Visa Call Center
  

It should be noted that the above quotation does not encompass all of the information provided upon the official website. Those interested in obtaining further information are encouraged to correspond directly with either an American immigration attorney or the US Embassy in the Philippines.

The Consular Processing phase is usually the last phase of the US visa process for those with immigrant intent. Although in certain cases, a 221g refusal may be issued if the adjudicating Consular Officer feels that further documentation is required to process an application. Furthermore, a visa application may be denied if it is found that a legal grounds of inadmissibility exists in a given case. Under such circumstances, it may be possible to remedy the denial through use of an I-601 waiver of inadmissibility.

In American family based visa cases, the Immigrant Visa Unit of a US Consulate abroad is responsible for the adjudication of a visa application for those seeking a K1 visa, K3 visa, CR-1 visa, or an IR-1 visa.  Those seeking a non-immigrant visa such as a B1 visa (US Business Visa), B2 visa (US Tourist Visa), F1 visa (US Student Visa), or J1 visa (Cultural Exchange Visa) must interview with an adjudicator at the Non-immigrant visa unit of the Post with Consular jurisdiction to adjudicate a visa application.

For related information please see: US Embassy Philippines.

New Delhi – In an effort to make the visa application process more convenient for all Indians, the U.S. Embassy in New Delhi and Consulates General in Mumbai, Chennai, Kolkata and Hyderabad now accept visa applications from across India at all visa facilities, regardless of the applicant’s home address or city of residence. This is part of Mission India’s ongoing effort to facilitate legitimate travel to the United States.

Following the opening of Consulate General Hyderabad in 2008, the U.S. Mission has looked for ways to best capture the dynamism of India’s growth across the nation. As a result, we also redesigned our consular districts. Therefore, effective immediately, our consular districts will be reorganized as follows: Embassy Delhi: Bihar, Delhi, Haryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Rajasthan, Uttarakhand, Uttar Pradesh, Bhutan; Consulate Mumbai: Goa, Gujarat, Madhya Pradesh, Maharashtra, Diu and Daman, and Dadra and Nagar Haveli; Consulate Hyderabad: Andhra Pradesh, Orissa; Consulate Chennai: Karnataka, Kerala, Puducherry, Lakshadweep, Tamil Nadu, Andaman and Nicobar Islands; Consulate Kolkata: Arunachal Pradesh, Assam, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, West Bengal

U.S. Ambassador to India Timothy J. Roemer said, “With these changes, we believe our Consulates General and our Embassy in New Delhi will be even better positioned to support and serve Indian visa applicants, as well as American citizens and businesses throughout India.”

Actions such as those noted above can have a tremendous positive impact upon those Indian Nationals seeking United States Immigration benefits as the ability to process such travel documents at any Post in India generally results in a great deal more convenience compared to the policy of keeping Consular jurisdictions mutually exclusive.

Each year, many Indian Nationals seek visa benefits of the United States of America. While some may seek US family visa benefits in order to reunite with loved ones. Other applicants seek non-immigrant visas for short terms stays in the USA. Still others seek employment based visas to the US such as the L1 visa. Meanwhile, there are some who opt to seek United States Permanent Residence by investment through use of the EB-5 visa program.

Policies such as the aforementioned one adopted by the US Mission in India should be applauded as this shows a sincere effort on the part of the Mission in India to take measures which may be beneficial to those seeking visas to America.

For related information please see: EB-5 Visa India.

Those seeking a US tourist visa must subject themselves to an interview prior to visa issuance (and visa issuance assumes application approval which is not a foregone conclusion). At the visa interview the Consular Officer will adjudicate the merits of a tourist visa application. Section 214(b) of the United States Immigration and Nationality Act compels Consular Officers to deny a tourist visa application (or any non-immigrant visa application that requires 214b analysis such as a J1 visa, an F1 visa, or a B1 visa to name just a few relevant categories) if the officer finds that the applicant cannot overcome the presumption of immigrant intent contained within the provisions of section 214b. This presumption creates a sort of “strong ties” vs. “weak ties” analysis which is utilized by those adjudicating non-immigrant applications. Therefore, those with strong ties to Malaysia (or another country abroad) and weak ties to the USA will be more likely to be granted a tourist visa compared to those in circumstances which mitigate in favor of the presumption of immigrant intent.

In the past, there were some who attempted to utilize the B2 visa (the categorical classification of the US Visitor Visa) as a means of circumventing the comparatively long processing time for visas such as the K1 visa or the CR1 visa. It should be noted that applying for a non-immigrant visa while maintaining immigrant intent could be construed as visa fraud particularly where the applicant is seeking a Visitor Visa which specifically is meant for those wishing to travel to the USA for a relatively short holiday.

Those wishing to bring a Malaysian loved one to the United States for the purpose of marriage are well advised to seek either a US fiance visa (K1 visa) or a US Marriage Visa (if the couple is already married the duration of the marriage may dictate if the Malaysian spouse is eligible for a CR1 Visa or an IR1 visa). A marriage or intended marriage should never be entered into as a pretext. Therefore, so-called marriages of convenience should not be the basis of a visa petition. Those seeking US family visa benefits are well advised to only seek visa benefits based upon a genuine bona fide relationship.

For related information please see: US Visa Lao Girlfriend of K1 Visa Malaysia.