"One Strike and You're Out": The Trump Administration's Crackdown on Temporary Visa Holders

 

In the first 100 days of President Donald Trump's second term, the administration has implemented stringent immigration policies, significantly impacting all non-citizens including temporary visa holders, such as F-1, H-1B, L-1, O-1, B-1, B-2, etc. Secretary of State Marco Rubio has been at the forefront of these changes, introducing the "Catch and Revoke" one-strike policy, which allows for the immediate revocation of visas upon any infraction, regardless of severity.  Such policy applies equally to legal residents.

The "Catch and Revoke" Policy

Secretary Rubio's "Catch and Revoke" directive establishes a zero-tolerance approach to visa violations. Under this policy, any legal infraction, including minor offenses such as traffic violations, can lead to the immediate revocation of a visa. Rubio emphasized that a visa is "a privilege, not a right," reinforcing the administration's stance on strict immigration enforcement.  According to Rubio, there is no more "get-out-of-jail-free card" after a person is arrest for criminal activity including domestic violence and assault. 

Impact on Temporary Visa Holders

F-1 and J-1 Students: The administration's policies have led to the revocation of over 300 student visas in March alone, targeting individuals involved in activities deemed contrary to U.S. interests. The "Student Criminal Alien Initiative" further scrutinized approximately 1.3 million foreign students, resulting in visa terminations for minor infractions, including dismissed charges. Although many of students' status have been restored after federal litigation, this may not be the end of the story.

H-1B and Employment-Based Visas: Holders of H-1B and other employment-based visas face increased scrutiny, with policies threatening visa revocation for minor legal issues. The administration has also proposed higher wage thresholds and stricter eligibility criteria, potentially impacting renewals and extensions. 

B-1/B-2 Visitors and Other Categories: Tourist and business visa holders are not exempt from the crackdown. The "Catch and Revoke" policy applies broadly, leading to heightened anxiety among all temporary visa holders. 

Legal and Social Ramifications

The aggressive enforcement has led to numerous lawsuits and public outcry. In response to legal challenges, the administration temporarily halted the revocation of F-1 visas for students flagged for minor offenses, acknowledging the need for due process.  Despite this pause, the administration continues to pursue deportations for individuals deemed national security threats.

The policies have also created a chilling effect on international students and professionals, with many reconsidering their plans to study or work in the U.S. Universities report a significant drop in international applications, and tech companies advise foreign employees to avoid international travel due to re-entry uncertainties. 

Temporary Visa Holders Should Take Precautions

First, they must strictly adhere to all U.S. laws, including immigration and traffic regulations, to avoid any infractions that could jeopardize visa status.  Secondly, they must also exercise caution when engaging in political demonstrations or activities that could be construed as opposing U.S. policies.

Thirdly, foreign nationals should limit their international travel, as re-entry into the U.S. may be uncertain under current policies.   Forth, it is also critical for them to consult with immigration attorneys to stay informed about policy changes and to receive guidance tailored to individual circumstances.  Do not rely on information from friends and the social media.  Finally,  they also maintain records of legal status, employment, and academic enrollment to provide evidence of compliance if questioned.  Lengthy and inquisitive Requests for Evidence (RFEs) are very common now. 

Summary

The current administration's policies represent a significant shift in the U.S. approach to international students and temporary visa holders, emphasizing strict enforcement and limited tolerance for infractions. Visa holders must remain vigilant and proactive in safeguarding their legal status.  It should be noted that such policies are applied equally to all non-citizens, including green card holders.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

State Department to Increase Visa Fees

 

By Paul Szeto LLC

The Department of State intends to increase the application processing fees for certain nonimmigrant visas as follows: 

•  Non-petition-based nonimmigrant visas such as B1/ B2 (except E category): from $160 to $185;

•  Petition-based H, L, O, P, Q, and R category nonimmigrant visas: from $190 to $205;

• E category nonimmigrant visas: from $205 to $315;

• BCCs for Mexican citizens age 15 and over: from $160 to $185;

These new fees will be published in a final rule to be published in the Federal Register on 3/28/23, and will be effective 60 days after publication.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Dept. of State Complies with Public Charge Rule Injunction

The Department of State (DOS) announced that it is changing its policies following the nationwide injunctions on the public charge rule. DOS processes immigrant visa petitions filed in overseas countries.  To comply with the court injunction orders, DOS no longer requires applicants to complete DS-5540 Public Charge Questionnaire. The Department will also update its internal policy in this regard.

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Meanwhile, if an application appears to be ineligible on public charge grounds, visa officers will stop administrative processing of the visa petition, and consult and review with DOS to make sure that any decision does not violate the court order.  

While this is good news, green card applicants must understand that the public charge rule and the public charge ground of inadmissibility are not the same thing. They are still subject to the ground of inadmissibility, which has been in the immigration statutes for many years. 

(If you have any questions about this article or need legal help, please contact our law office at www.1visa1.com) 

U.S. State Department Passport/Visa System - Update on recent technical problems

The State Department website provides the following update on its recent system technical problems -

The CCD is still performing below its normal operational capacity. However, to give you an idea of the progress we have made, from the start of the operational issues on July 20 through July 28, we issued more than 220,000 nonimmigrant visas globally. Based on our average production figures, we would have anticipated issuing closer to 425,000 nonimmigrant visas in that time period, indicating we have been able to print nonimmigrant visas for about half of all approved travelers. It will take some weeks before we are back to normal turnaround times on issued visas. We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases with very few delays. Please see our FAQs for further information.

Visa Interview Waiver Program Becomes Permanent

To improve the efficiency of the non-immigrant visa (NIV) application process, and to foster economic activities, the U.S. government introduced a two-year pilot program in January 2012 to waive interviews for certain types of NIV applications.  The program has been made permanent recently by the Department of State, as reported by AILA.  

Under this interview waiver program, consular officers can waive the interview for visa applicants whose previous visas in the same classification expired within the last 12 months.  Applicants must apply for their new visas in the district of their residence.  Further, interviews can also waived for applicants whose previous visas expired between 12 and 48 months ago, unless they are applying for E, H, L, P or R visas.

For example, a foreigner whose B-1 business visa expired one year ago may apply for a new B1 visa in his country of residence without interviews.  However, if the same person decides to apply for an H-1B employment visa, then he will be interviewed.

First time Brazilian visa applicants who are either younger than 16 or older than 65 are also eligible for interview waivers.

American consulates in India further expanded the program to include children applying before their 14th birthday traveling on any visa class; students returning to the U.S. to attend the same school and same program; applicants of H-1B visa applicants; and individual applicants of L1-A or L1-B visas.

In China, where economic development is red-hot, the interview waiver program has also been adopted to facilitate travel of Chinese nationals to the United States.  Consular officers in China may waive interviews for previous holders of B (business/pleasure), C1 (transit), D (crewmembers), F (students), J (exchange visitors), M (nonacademic students), and O (visitors with extraordinary ability) visas when they apply for visa renewals if their previous visas expired with the last 48 months.

In 2011, more than one million non-immigrant visa applications were processed in mainland China with more than 880,000 visas issued.  In 2012, about 1.2 million non-immigrant visas were issued in China, with about 475K visas issued in Beijing, 391K issued in Shanghai, 224K in Guangzhou, 59K in Shenyang, and 54K in Chengdu.  The substantial increase in visa approvals from 2011 to 2012 can be attributed largely to the interview waiver program.

The interview waiver program improves the efficiency of the consulate offices by freeing up visa appointments for first-time visa applicants. For example, the interview waiver program in China was used to free up about 100,000 appointment slots for first-time travelers.  As China's economy takes off, more Chinese citizens are expected to visit foreign countries for personal and business reasons.

Unlike first-time visa applicants, frequent travelers are less likely to overstay their visa status or otherwise violate the U.S.  immigration laws.  Most of them are business travelers or tourists whose presence in the U.S. is crucial to promote the cultural and economic interests of both countries.  Hence, it is reasonable to waive interviews for them.

In spite of the permanency of the interview waiver program, the State Department also makes it clear that consular officers are still obligated to interview applicants for national security reasons or quality control purposes.  Therefore, foreign visitors must always be ready to produce evidence to prove the legitimacy of their travel, and, whenever appropriate, their lack of immigrant intent.

January 2014 Visa Bulletin: EB-3 advances 6 months for most countries

The January 2014 Visa Bulletin brings good news to the third employment-based visa preference applicants, as the EB-3 preference category moves forward by six (6) months for most countries including China. However, EB-3 India remains unchanged at 09/01/2003. EB-3 Philippines moves forward by five (5) weeks.  The six-month jump brings the cut-off date for most countries in EB-3 to 04/01/2012, compared to 10/01/2011 in last month's visa bulletin.  Based on this development, Chinese applicants should consider filing an EB-3 visa petition even if they have already submitted an EB-2 petition. 

On the family side, there are some moderate advancements in the 1st (unmarried sons and daughters of U.S. citizens) and F-2B (unmarried adult sons and daughters of lawful residents) preference categories. There are no changes in the F-3 and F-4 preference categories.  For the fourth month, the cut-off date for F-2A remains unchanged at 09/08/13 for all countries.  

FAMILY	Other Countries	China	India	Mexico	Philippines
F1	12/08/06	12/08/06	12/08/06	09/22/93	07/01/01
F2A	09/08/13	09/08/13	09/08/13	09/01/13	09/08/13
F2B	06/01/06	06/01/06	06/01/06	04/01/94	05/01/03
F3	04/15/03	04/15/03	04/15/03	06/01/93	02/01/93
F4	10/01/01	10/01/01	10/01/01	11/01/96	07/01/90

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

EMPLOYMENT	Other Countries	China	India	Mexico	Philippines
EB1	C	C	C	C	C
EB2	C	12/08/08	11/15/04	C	C
EB3	04/01/12	04/01/12	09/01/03	04/01/12	02/15/07
Other Workers	04/01/12	04/01/12	09/01/03	04/01/12	02/15/07
EB4	C	C	C	C	C
EB5	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)

Indian EB-2 Expected to Retrogress to 2004 or 2005 in the December

The following is an Visa Office Update on Priority Dates and Demand (Updated 11/1/13), as reported by AILA:

On Wednesday, October 23, 2013, Mr. Charlie Oppenheim of the Department of State's Visa Office spoke to the Washington D.C. Chapter dinner. Below are notes from that meeting. These notes are Mr. Oppenheim's impressions at this time, and are subject to change based on usage or new developments.

• His office is concerned again this year that the EB-5 numbers for China are moving too fast and there could be a cut-off for China EB-5 in June 2014 or later, if usage remains at the current levels. Worldwide EB-5 usage is up as well.
• The India EB-2 cutoff date is expected to retrogress from June 2008 (which is what it is in the November 2013 Visa Bulletin) to 2004 or 2005 in December 2013. This is due in large part to Indian nationals "upgrading" from EB-3 to EB-2. See below for more on upgrades.
• India EB-3 will continue to move very slowly.
• Upgrades continue to be a tough issue to manage. USCIS does not appear to be working to develop any processes or procedures to better capture upgraded employment-based cases so there is no better information expected from that agency to assist Mr. Oppenheim's office in better managing these numbers.
• Worldwide EB-2 is expected to remain current.
• Worldwide EB-3 could move up to 2011 in the December Visa Bulletin.
• Worldwide EB-1 is expected to remain current.
• China EB-2 will continue to move slowly.
• China EB-3 is expected to continue to be ahead of a China's EB-2 priority date. Members are reminded that they may be able to use an expired EB-2 PERM for a new EB-3 category. As long as the first EB-2 I-140 was approved, the PERM can be used to file a second I-140 under EB-3. See this USCIS memo for more information (AILA Doc. No. 07062172)
• EB-4 is expected to remain current.
• Family-based 2A is expected to hold at its current date. Mexico FB-2A may need to retrogress in the future. Many FB-2A applicants are not showing up for their appointments, or their applications are being returned from the posts.

AILA InfoNet Doc. No. 12012349 (posted Nov. 1, 2013)

October 2013 Visa Bulletin: Family 2A No Longer Current

The most significant change in the October Visa Bulletin is that family-based second preference (F2A) has now a cut-off date for all countries, after having been current for the past two (2) months.  As predicted by the State Department, the current status of the last two months has generated a large number of applications.  The number is large enough to use up all the available visa numbers, resulting in retrogression in this visa category.  The good news is that the retrogression is only a minor one with all cut-off dates in September of 2013.  However, the situation could get worse in the future. Intending immigrants with a current visa petition should not wait to apply for an immigrant visa or adjustment of status. There are no significant movements in other family visa categories.

On the employment side, employment second preference (EB2) India remains unchanged this month after having advanced five (5) months in September. EB2 China advances five (5) weeks in October to September 15, 2008.  There are no significant movements in other employment categories.  Please see the tables below for details. 

Family	Other Countries	China	India	Mexico	Philippines
F1	10/01/06	10/01/06	10/01/06	09/22/93	06/01/01
F2A	09/08/13	09/08/13	09/08/13	09/01/13	09/01/13
F2B	03/01/06	03/01/06	03/01/06	03/08/94	02/08/03
F3	01/22/03	01/22/03	01/22/03	05/22/93	01/01/93
F4	08/08/01	08/08/01	08/08/01	10/15/96	03/22/90

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	China	India		Mexico			Philippines
EB1	C	C		C		C	C
EB2	C	09/15/08		06/15/08		C	C
EB3	07/01/10	07/01/10		09/22/03		07/01/10	12/15/06
Other Workers	07/01/10	09/22/04		09/22/03		07/01/10	12/15/06
EB4	C	C		C		C	C
EB5	C	C		C		C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)

August Visa Bulletin: EB-2 India advances to 01/01/2008

Ever since October 2012, EB-2 India has been retrogressed and the cut-off date has been kept at September 1, 2004.   However, this is about to change in August.  The August Visa Bulletin announces that EB-2 India's cut-off date will be changed to 01/01/2008, representing an advancement of three years and four months.  Sudden movements in the cut-off dates are not unusual during this time of the fiscal year, which ends September 30th. These movements are intended to generate more green card and immigrant visa applications so that any remaining visa numbers for the fiscal year will be used up.   This is also precisely the reason why the Family 2A preference category becomes current in August for all countries.  

Eligible applicants should take advantage of these movements and file their green card applications as soon as possible.  As intended by the State Department, the significant advancement in EB-2 India and the "current" status of the Family 2A will likely generate a large number of filings, which will cause the pendulum to swing to the other side again - the side of visa retrogression.  Therefore, do not delay in filing your green card applications if your case has become current.   Overseas applicants should start their NVC or consular processing immediately.  Applicants residing in the U.S. should prepare and submit their adjustment applications domestically with the USCIS.

March 2013 Visa Bulletin: EB Advances for China, Remains Slow for India

The March 2013 Visa Bulletin recently released by the U.S. Department State brings little surprises.  On the employment side, India continues to have slow (EB-3) or no (EB-2) movement, as a result of persistent high usage of employment-based immigration visas by the USCIS.  This is consistent with the predictions made by office of Visa Control and Reporting Division at the State Department.   The State Department predicts that this situation will likely to last for a few more months. China, on the other hand, advances four (4) and nine (9) weeks in the EB-2 and EB-3 employment-based categories respectively. 

Most family-sponsored categories continue to move forward.  Significantly, the Philippines moves forward by seven (7) months to October 15, 1998 in the F-1 (unmarried adult children of U.S. citizen) category;  China, India, and the "Other Countries" advance six (6) weeks to March 1, 2005 in the F-2B visa category (unmarried adult children of U.S. lawful residents).  The State Department predicts that moderate forward movements will continue on the family side.  

Family	Other Countries	CHINA	INDIA	MEXICO	PHILIPPINES
F1	15FEB06	15FEB06	15FEB06	22JUL93	15OCT98
F2A	22NOV10	22NOV10	22NOV10	15NOV10	22NOV10
F2B	01MAR05	01MAR05	01MAR05	15JAN93	08JUN02
F3	15JUL02	15JUL02	15JUL02	15MAR93	15SEP92
F4	22APR01	22APR01	22APR01	15AUG96	15JUL89

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	CHINA	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	15FEB08	01SEP04	C	C
3rd	01MAY07	22JAN07	22NOV02	01MAY07	01SEP06
Other Workers	01MAY07	01JUL03	22NOV02	01MAY07	01SEP06
4th	C	C	C	C	C
5th	C	C	C	C	C

     

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers) 2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)