Visa

Department of State v. Muñoz

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no right to marriage

In State Department v. Muñoz, the U.S. Supreme Court ruled against a U.S. citizen who said her constitutional rights were violated by the federal government when it denied a visa to her Salvadoran husband. Munoz and her husband, who she married in 2010 and has a child with, have been separated since 2015 while they were going through the visa process. After several interviews, a consular officer denied Asencio-Cordero’s application, citing a provision that renders inadmissible a noncitizen whom the officer believes seeks to engage in unlawful activity. Asencio-Cordero and Muñoz sued the Department of State, claiming that it had abridged Muñoz’s constitutional liberty interest in her husband’s visa application by failing to give a sufficient reason why Asencio-Cordero is inadmissible under the “unlawful activity” bar, because the consulate did not provide any further explanation for the decision. Visa denials are not reviewable in court unless the government violates an applicant’s constitutional rights in the process.The Supreme Court on Friday rejected Munoz’s claim that the delay in explaining the denial violated her due process rights by interfering with her fundamental right to marry. The claim “involves more than marriage and more than spousal cohabitation — it includes the right to have her noncitizen husband enter (and remain in) the United States,” Justice Amy Coney Barrett wrote for the court. Justice Sotomayor (joined by Justices Elena Kagan and Ketanji Brown Jackson) wrote, “There is no question that excluding a citizen’s spouse burdens her right to marriage, and that burden requires the Government to provide at least a factual basis for its decision.”

Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023)

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Given the significance of a respondent’s interest in securing review of a denial of a petition to remove the conditions on permanent residence, an Immigration Judge should ordinarily review the denial of a Form I-751 upon the request of the respondent. [Full Decision] Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) At a 2019 hearing before the Immigration Judge, DHS indicated that it did not have the respondent’s file and sought a continuance to locate it. The respondent did not object but asked that the proceedings move forward as quickly as possible to obtain review of USCIS’ decision denying his most recent I-751 petition to remove the conditions on his residence. The Immigration Judge continued the case for one month. At the next hearing, DHS still had not located the respondent’s file. The Immigration Judge asked the DHS attorney if she was moving to terminate for failure to prosecute the case, and the DHS attorney indicated that she was. The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” Matter of H. N. Ferreira, 28 I&N Dec. 765 (BIA 2023) The respondent objected on the grounds that the government “can only move for dismissal on enumerated grounds . . . [a]nd failure to find its file is not one of them.” The respondent also contended that terminating removal proceedings would leave him without an avenue for review of USCIS’ denial of his Form I-751, which at that point he had been seeking for nearly a decade. The Immigration Judge granted DHS’ motion to terminate the removal proceedings on the ground that the court lacked jurisdiction tointerfere with DHS’ prosecutorial discretion. The respondent timely appealed. The Board found that Congress has provided that a decision by USCIS to terminate anoncitizen’s conditional permanent resident status is reviewable in removal proceedings by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D). Under current regulations, this is the only permitted avenue for review. See 8 C.F.R. § 1216.3(a); cf. 8 C.F.R. § 1216.5(f) (2023) (“No appeal shall lie from the decision of the director [to deny a waiver of the joint filing requirement]; however, the alien may seek review of such decision in removal proceedings.”). Where the basis for USCIS’ denial of a Form I-751 petition is the denial of a waiver of the joint filing requirement, the Immigration Judge reviews the denial of the waiver as well. See 8 C.F.R. § 1216.5(f); Matter of Bador, 28 I&N Dec. at 642 (collecting authority); see also Matter of Herrera Del Orden, 25 I&N Dec. 589, 593–95 (BIA 2011) (discussing the scope of the Immigration Judge’s review of the denial of an applicant’s request for a waiver of the joint filing requirement). Because DHS does not have unilateral authority to cancel a Notice to Appear once removal proceedings have commenced, DHS’ motion to terminate constituted a request that the Immigration Judge exercise his authority to terminate the proceedings. See Matter of G-N-C-, 22 I&N Dec. at 284. The Immigration Judge has authority to adjudicate this request “based on an evaluation of the factors underlying the [DHS’] motion.” Id. The Immigration Judge erred in concluding that he was required to terminate proceedings simply because DHS had moved to do so. Instead, the Immigration Judge should have adjudicated the motion after considering the underlying facts and circumstances. Because the Immigration Judge mistakenly concluded that DHS’ motion divested him of jurisdiction, he did not consider the respondent’s interest in obtaining review of USCIS’ denial of his Form I-751 petition. The respondent’s interest in having an Immigration Judge review USCIS’ denial of a Form I-751 is significant. Regulations provide that when USCIS terminates conditional permanent resident status by denying a Form I-751, there is no appeal from that decision to any higher authority within USCIS, and the noncitizen must be placed in removal proceedings. 8 C.F.R. § 1216.3(a). At that point, the denial of the Form I-751, and any associated waivers, is reviewable only by the Immigration Judge. See INA § 216(b)(2), (c)(3)(D), 8 U.S.C. § 1186a(b)(2), (c)(3)(D); 8 C.F.R. §§ 1216.3(a), 1216.5(f); Matter of Bador, 28 I&N Dec. at 642. The appeal was sustained and the case was remanded to the Immigration Judge to review the Respondent’s petition to remove conditions on his residency. See full decision here.

Non-Minister Special Immigrant Religious Workers Sunset Date

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Today, September 30, 2023, was the final day or the “sunset date” for Non-Minister Special Immigrant Religious Worker Program. On Dec. 29, 2022, the president signed into law H.R. 2617, which extended the program through September 30, 2023, to allow these workers to immigrate or adjust to permanent resident by that date. Congress had amended the Immigration and Nationality Act (INA) in 1990 to create a special immigrant status for ministers and non-ministers in religious vocations and occupations. It provided a path to permanent residency (by filing an I-360 petition) for those who were a member of a religious denomination that has a bona fide non-profit religious organization in the United States for at least two years before filing; had been working continuously for the past two years immediately prior to filing the immigrant petition; and sought to enter the United States solely to work as a minister or in the religious vocation or occupation of your employer’s denomination. Special immigrants entering the U.S. solely to carry on the vocation of a minister, and their accompanying spouses and children, are not affected by the sunset date. It remains to be seen how this will affect various churches and religious organizations throughout the U.S. The injunction preventing DACA applications from being adjudicated or renewed has also caused problems for religious workers, particularly those connected to the Catholic Church. There were several recent changes affecting religious workers. A Policy Alert was issued in August 2022 addressing several policy changes.

Visa Bulletin

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The number of visas that are available for immigrants coming to the United States is limited under the law. The limitations are determined annually and then a monthly visa bulliten is published based on the number of visas used. The visa bulletin is used to determine when a visa is available. As an example this is the visa bulliten for September 2023. The Department of State has determined the Family and Employment preference numerical limits for FY-2023 in accordance with the terms of Section 201 of the INA. Under INA Section 202(a), the per-country limit is fixed at 7% of the family and employment annual limits.  For FY-2023 the per-country limit is 29,616.  The dependent area annual limit is 2%, or 8,462. These numerical limitations for FY-2023 are as follows: Worldwide Family-Sponsored preference limit:          226,000Worldwide Employment-Based preference limit:        197,091 STATUTORY NUMBERS FOR PREFERENCE IMMIGRANT VISAS This bulletin summarizes the availability of immigrant numbers during September for: “Final Action Dates” and “Dates for Filing Applications,” indicating when immigrant visa applicants should be notified to assemble and submit required documentation to the National Visa Center. Unless otherwise indicated on the U.S. Citizenship and Immigration Services (USCIS) website at www.uscis.gov/visabulletininfo, individuals seeking to file applications for adjustment of status with USCIS must use the “Final Action Dates” charts below for determining when they can file such applications. When USCIS determines that there are more immigrant visas available for the fiscal year than there are known applicants for such visas, USCIS will state on its website that applicants may instead use the “Dates for Filing Visa Applications” charts in this Bulletin.  IMMEDIATE RELATIVES Immediate relative petitions are not subject to the family-sponsor preferences. Immediate relative visas are available once approved. Immediate relatives are considered to be: FAMILY-SPONSORED PREFERENCES All other family-sponsored visas are in preference categories. The preference categories will determine when the visa will become available. The family-sponsored preference categories are as follows: First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference. Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers: A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation. Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences. Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences. September 2023 FINAL ACTION DATES FOR FAMILY-SPONSORED PREFERENCE CASES Family-Sponsored  All Chargeability Areas ExceptThose Listed CHINA-mainland born INDIA MEXICO PHILIPPINES  F1 01JAN15 01JAN15 01JAN15 22APR01 01MAR12 F2A 01JAN18 01JAN18 01JAN18 01SEP16 01JAN18 F2B 22SEP15 22SEP15 22SEP15 01AUG01 22OCT11 F3 08JAN09 08JAN09 08JAN09 15JAN98 08JUN02 F4 22APR07 22APR07 15SEP05 01AUG00 22AUG02 Visa Bulletin For September 2023https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html EMPLOYMENT-BASED PREFERENCES First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference. Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”. Fourth:  Certain Special Immigrants:  7.1% of the worldwide level. ***Special Immigrant Juvenile I-360 Petitions also use this preference category, read more. Fifth:  Employment Creation:  7.1% of the worldwide level, of which 32% are reserved as follows: 20% reserved for qualified immigrants who invest in a rural area; 10% reserved for qualified immigrants who invest in a high unemployment area; and 2% reserved for qualified immigrants who invest in infrastructure projects. The remaining 68% are unreserved and are allotted for all other qualified immigrants. FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES Employment-based All Chargeability Areas ExceptThose Listed CHINA-mainland born INDIA MEXICO PHILIPPINES 1st 01AUG23 01FEB22 01JAN12 01AUG23 01AUG23 2nd 01JUL22 08JUL19 01JAN11 01JUL22 01JUL22 3rd 01MAY20 01SEP19 01JAN09 01MAY20 01MAY20 Other Workers 01MAY20 01SEP15 01JAN09 01MAY20 01MAY20 4th 01SEP18 01SEP18 01SEP18 01SEP18 01SEP18 Certain Religious Workers 01SEP18 01SEP18 01SEP18 01SEP18 01SEP18 5th Unreserved(including C5, T5, I5, R5) C 08SEP15 01APR17 C C 5th Set Aside:Rural (20%) C C C C C 5th Set Aside:High Unemployment (10%) C C C C C 5th Set Aside:Infrastructure (2%) C C C C C https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html DIVERSITY VISAS DIVERSITY IMMIGRANT (DV) CATEGORY FOR THE MONTH OF SEPTEMBER Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually allocated diversity visas will be made available for use under the NACARA program.  This will result in reduction of the DV-2023 annual limit to approximately 54,833.  DV visas are divided among six geographic regions. No one country can receive more than seven percent of the available diversity visas in any one year. For September, immigrant numbers in the DV category are available to qualified DV-2023 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number: Region All DV Chargeability Areas ExceptThose Listed Separately   AFRICA Current Except:  Algeria     45,000              Egypt        43,200              Morocco   63,400 ASIA 21,000 Except:  Iran     16,000              Nepal  21,000 EUROPE 32,000 Except:  Russia         32,000               Uzbekistan  17,000 NORTH AMERICA (BAHAMAS)  Current   OCEANIA 2,500   SOUTH AMERICA,and the CARIBBEAN 3,150   https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html Entitlement to immigrant status in the … Read more

Petitioning for Relatives

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PETITIONING FOR RELATIVES  Type of Relative for Whom You May Petition Immigration Benefit Related Forms Spouse Children (unmarried and under 21) Sons and daughters (married and/or 21 or over) Parents, if you are 21 or over Siblings, if you are 21 or over Green Card (permanent residence) Form I-130, Petition for Alien Relative Form I-485, Application to Register Permanent Residence or Adjust Status Form I-864, Affidavit of Support A fiancé(e) residing outside the United States and children of fiancé(e) under 21 Fiancé(e) visa Form I-129F, Petition for Alien Fiancé(e) Spouse Children of spouse (unmarried and under 21) K-3/K-4 visa Form I-129F, Petition for Alien Fiancé(e) Form I-130, Petition for Alien Relative WHAT RELATIVES CAN I PETITION FOR? Immediate Relatives Other Family Members Spouses of U.S. citizens Children (unmarried and under 21) of U.S. citizens Parents of U.S. citizens (The petitioning citizen must be 21 or older.) Visas are always available for immediate relatives of U.S. citizens. This means your family member does not need to wait in line for a visa. Immediate relatives who are in the United States can file Form I-485, Application to Register Permanent Residence or Adjust Status at the same time as Form I-130. For more information on how your relative can apply to adjust status (get a Green Card) while they are in the United States, see the How to bring a family member to the U.S. Preference categories apply to family members who are not immediate relatives. The visas allotted for these categories are subject to annual numerical limits. A visa becomes available to a preference category based on the priority date (the date the Form I-130 was filed). Preference categories are grouped as follows: First preference: Unmarried, adult sons and daughters of U.S. citizens (adult means 21 or older.) Second Preference (2A): Spouses of Green Card holders, unmarried children (under 21) of permanent residents Second Preference (2B): Unmarried adult sons and daughters of permanent residents Third Preference: Married sons and daughters (any age) of U.S. citizens Fourth Preference: Brothers and sisters of adult U.S. citizens. For current wait times, see the USCIS Processing Time Information page on this website and the Visa Bulletin page on the U.S. Department of State website. For more information on priority dates, see the Visa Availability and Priority Dates page. How to bring a family member to the U.S.

Bona Fide Marriage Exemption

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Non-citizens who marry U.S. citizens or lawful permanent residents while in removal proceedings must show by clear and convincing evidence that the marriage was entered into in good faith. See INA § 245(e)(3). What is commonly called, “the bona fide marriage exemption” must be requested in writing and submitted with Form I-130. See 8 C.F.R. § 204.2(a)(1)(iii)(A). The request must state the reason for seeking the exemption and must be supported by documentary evidence establishing eligibility for the exemption. You must be prepared to address the bona fide marriage exemption early in your case. It is important that you, the couple, document your relationship thoroughly. Evidence of the relationship will be critical to the removal proceedings and to obtaining approval of the visa petition. USCIS checks social media, publicly accessible websites, and other databases during their review of the application. Please make sure that you are not and have not posted information that contradicts the documents and testimony we will submit to USCIS and the Immigration Judge. You should keep all documents that show both of your names, such as mail, bills, and other records that can serve as proof of your relationship. Documents such as the following should be gathered to assist in proving good faith marriage: TEMPLATE FOR BONA FIDE MARRIAGE EXEMPTION LETTER Marriage was entered into in good faith. INA § 245(e)(3). We are seeking a “bona fide marriage” exemption pursuant to 8 C.F.R. § 204.2(a)(1)(iii)(A).