2020 AILA Conference: Day 2, Session 2: The "Invisible Wall"

[Tsang Intro Splash]

Hi everyone, this is Joseph Tsang at Tsang & Associates, and today we’re back at day two of the AILA Conference 2020. This is the first time AILA is doing this virtual conference, and I’m super excited to bring that to you.

Now, as a quick disclaimer, I’m only reviewing the sessions I’m attending, and the opinions shared in the video are mine only, even though I am an AILA member. The opinions I share are not attributed to AILA or even to the speakers. I am summarizing what the speakers are saying and sharing my two cents on the topic.

And if you don’t know what AILA is, it is the American Immigration Lawyer Association, the largest immigration lawyers association in the United States. Hundreds of thousands of attorneys gather together around the world to discuss these topics every year at this conference, and I’m super excited to get started.

[0:46] Here we are at day two, session two. The topic is officially “Invisible Wall,” but it really tackles the issue with I-94s. And if you don’t know what the I-94 is, let me explain.

Before we start, a huge shout-out to the amazing panelists AILA University assembled. You can see them here [Alexis S Axelrad, Leslie A Holman, Ramon E. Curiel, Helena Tetzeli], and in particular, Leslie Hoffman, who is the previous AILA president and she’s in my AILA Lisa chapter. Woohoo! She has been instrumental in helping me change the Law Student Law School Division of AILA and really empowering the students to make a difference. It’s awesome. Let’s get to it.

[1:16] Alright, before we start, we’re talking about battling the “Invisible Wall” of getting into the country or staying in the country. Right now, in the previous sessions, we talked about high-level techniques different attorneys employed to help clients get in, get out. This is more like battling in the trenches. A lot of these speakers are talking about specific techniques and dealing with the southern border and northern border. It’s really the techniques you get in the trenches. They’re super good, and it’s really valuable information. So, I can’t wait to share them with you now.

Almost all the problems relate to the I-94. Now, if you don’t know what the I-94 is, it’s a very, very complicated number in relation to your visa, in relation to your receipt number on your 797. I always have to explain this to clients because they don’t really understand, and they’re super confusing. And I don’t know why there are three different numbers relating to how long you can stay in the US. So, let’s break it down so people can understand it and understand exactly what situation people are facing.

[2:08] So first, when you’re applying for an application in the US, you will file it with USCIS, and you’ll get this receipt number, and it’ll talk about how long your application is permitted ‘til, right? So, it might say January of 2020 to the end of January 2021. So, you get this full year. Okay, so that’s one number.

And then you take that receipt notice and you go to the consulate overseas and you apply for a visa. Now, that visa could be different than your receipt notice. It could be single entry or multiple entry, allowing you to come in once or allowing multiple times. And it might give you longer or shorter than that particular notice, and it’s really confusing why that is, but that is the way it is. Typically, it’s the same, but just know that it could be shorter or longer given your specific circumstance. The best way to understand the difference between these two is when you file the application, a government official, a government agency, on a very high level, approved this duration of time, but that doesn’t mean you get this amount of time. Okay, so that’s just a very high level concept.

Then when you go to the embassy, you get a visa. Then on that visa, it will tell you how long you are permitted to enter the U.S. It might be the same amount of time; it might be shorter. But essentially, that tells you now you’re able to come into the U.S. during this time. It’s like a ticket to Disneyland. You only have 30 days to use this ticket to enter. That’s the ticket to come into the U.S. It’s different from the high-level concept of how long you’re able to stay.

[3:31] Now, the next thing is the I-94. This is actually the most important number that most people don’t realize, but it is. When you enter the country, the immigration officer will take your passport and stamp your passport and enter on the system how long you’re permitted to stay in the U.S. This is another number. It’s going to be different than your visa, and it might be different from your 797 number as well. And the reason why this is different is now this is the stay that you’re permitted to actually be in the U.S. Your ticket, your visa, allowed you to get into the U.S., but it’s different than how well you’re able to stay in the U.S. It’s a completely different concept. The I-94 will be tagged to your passport, will be tied to what you told the officer. Sometimes, your visa will allow you to come in for six months, but the officer only gives you three days. Well, if you stay past those three days, you are officially illegal in the U.S. Your I-94 can also be tied to the validity of your passport. Maybe your visa gives you five years, but your passport is about to expire in one year. So, the I-94 might only be six months or one year.

[4:34] Alright, so a lot of people in this country have valid visas which will allow them to come back into the U.S., but their I-94 is about to expire. So, which means they can no longer stay in the U.S. They must check out and check back in. In the past, in normal times, they could just leave the U.S., go to the border, and come back in, and it’ll be fine. But we are in a pandemic right now. If they leave the U.S., they might not be able to come back for a long, long time. And maybe they can’t leave the U.S. Then what are they supposed to do?

[5:04] In this session, we’re going to dive into all the different strategies to deal with this particular problem. Let’s start.

Alright, the first thing you need to understand is that there’s a difference between the northern border and the southern border, and if you’re doing it by car or by plane. Let me break it down. 

Because of the different policies between Mexico and Canada, their restrictions on travel are very, very different. So this now ties into the international politics between different countries. Mexico is still welcoming people for tourism because their economy needs it, whereas in Canada, no. “You can stay at home, please don’t come into our country unless you’re essential.” The rule of thumb is, if you can get into the US, if your passport or your visa allows you in the US, chances are you’re going to be allowed in Mexico. So everybody is kind of going through Mexico and then getting to the US through whatever appropriate visa.

On the Canadian side, it might be much more difficult to fly into the US and then come to the US. Maybe there are no flights, maybe they don’t even allow you in, maybe they’re requiring you to stay for 14 days. So much more difficult.

[5:59] Now here’s a trick, and that’s super interesting. On the Canadian front, we are told that if you’re doing a flag polling, which means if you’re in your car, you drive through the border on the Canadian front and then you don’t leave your car, and the CBP officer understands that you just need to renew your I-94, they will allow you to turn around and drive back in. Your flagpole, meaning you’re getting to Canada just to pull the flag and turn around, and technically you’ve left the country and you’ve re-entered, and you’re getting a new I-94 stamp. So on the driving front, if you don’t leave your car, some ports of entry from the Canadian front will allow that. That is huge news for people who need this particular service.

In contrast, the Mexican border is not allowing that. You’re not allowed to just go and turn around. What they’re requiring is you fly to Mexico and then turn around, stay for a couple of days, and then fly back. I don’t know exactly why Mexico is more stringent on the land crossings, but they are. There’s a great story about this. One of the speakers shared that there was this professional baseball player and his girlfriend trying to enter the country. Now, the baseball player was able to get in, not a problem, but the girlfriend who had an O visa could not get through the border and had to fly to Mexico first, get it, and then come in. So it’s a very unique situation with a border crossing, but that is the key difference. In Canada, certain ports are allowed to do this flag polling technique, and you can just drive. You don’t have to fly. In Mexico, they’re requiring the flight.

[7:25] Now, if you’re flying and you have to stay for a couple of days, at any given moment, the nation’s laws can change, and suddenly a new restriction is in place. And before, it was only going to be a three-day journey. Suddenly, it turns into a six-month journey, and that’s devastating. We understand, and that’s the risk that you have to consider. 

[7:40] And this is significant on so many levels. For example, all of my E-2 clients, they all need to leave the US and come back in to get that extra two years. But if they continue to stay in the US, they will be illegal. That’s one option they face. Or they have to fly back to their home country and stay indefinitely, who knows how long. But they have a business here. They’re on an E-2 visa. They’re hiring employees. If they leave, then they have to shut down the entire business. That will be terrible. Or three, they have to risk this thing, and they don’t know what to do.

One other option is that they can file in the US for an extension, but with the USCIS furloughs, it might take a long time. If it gets denied, then they have to stay in the US. And almost all E-2 attorneys know if you’re filing an E-2 in the US, it is significantly more work. That is like 30 times more work. You have to submit a huge application to explain why you qualify, and you have to pay this huge amount of filing fee in the US in order to prove to somebody who cannot interview you why you are qualified to stay in the US on this E-2 visa. Whereas, if you can go to the border, get the stamp, come back in, it’s so much easier.

[8:43] Moving on to the next pro tip. Now you know, you’re directly getting the firsthand experience of attorneys working on the ground, battling with the invisible wall, battling with CBP, battling with the I-94 issues because these are super specific. It’s not just a high level “Oh yeah, you can get an emergency application if you file an argument this way.” It’s directly, you need original signatures. And that’s my experience too, anytime you deal with the CBP, anytime you deal with the northern border or the southern border, these officers are super picky about original signatures, original letterheads, wet signatures. It can’t be a photocopy. Whereas USCIS, the consulates, they’re dealing with paperwork day in and day out, it doesn’t have to be original.

So that is one thing, if you don’t have an original signature, if you don’t have an original copy cover letter, if you don’t have your original diploma, if you don’t have your unopened transcript, sometimes, they will deny your case. Conversely, even if your case is weak, if you have all these original documents, then they get super happy. I don’t know what it is, but that’s just the state of things. So when you are applying for this border entry, and you’re already going on a limb arguing that you’re an essential worker, arguing that they have to let you in because it’s super critical to the US economy, because you’re trying to do this flag polling thing, and they know you’re doing it, but you’re not technically staying out of the country for three days or five days, well, having all these additional original signatures will just make their day so much easier because that’s what they’re looking for. I don’t know if it’s in the training manual, I don’t think it is, but it’s funny that they’re looking for it. And so if you have it, good job.

[10:16] And here’s a little pro tip by me. Even if you don’t have the original offer letter for your H-1B application or your L-1 application, just get your employer or HR department to give you another letter confirming your role, and do it in blue ink so it’s super clear that it’s original. Get multiple copies, different types of letters. Your employer giving you an offer letter, getting an employment verification letter, giving a thank you letter. All these original documents with blue ink that totally signifies that you are working at the company, and they get to see all these letters and they get really happy, and hopefully that will allow you in.

[10:46] All right, the next pro tip relates to the F-1 international students. International students deal with this I-94 thing all the time. Maybe because they change school, so they need to exit the country and enter with a new I-20 and get a new stamp so they can be allowed in. Maybe because they got kicked out of school and so they need to change to a new school and their F-1 visa is still valid, so they need to leave and come back in. Or maybe their passport expires, so they got a new passport and with the old visa, and they need to argue with CBP to allow them back in. So all these different reasons why they need to re-enter the country.

Now we are told that at the CBP, they are still being challenged whether these students are taking only online classes. Now, if you don’t know, F-1 students are required to attend class, and if you do only online classes, that is not permissible. That was the old law or that is the law. But given the pandemic situation, the government was able to give an exception so that if there were only online classes available. However, very, very recently, on July 6th [2020], they changed the rule and changed it back to the original law, saying that it is no longer permissible. You have to attend class in the fall quarter. So all these CBP officers are enforcing this rule, making the students say whether or not they’re attending online classes and show proof. And if they can’t, then they’re turning these students away, and that’s really bad. Imagine the students being here, they go to Mexico, they go to Canada, and they’re trying to re-enter, and then they can’t because they’re only taking online classes.

[12:14] Now, we just did a video on this not too long ago. Harvard and MIT sued the government, saying that that law is unjust, it’s null and void. And then right at the hearing, the government pulled that. However, I don’t know if the CBP officers know that. We are told that they’re still enforcing this law that has actually been rescinded. And so it’s super important, if you’re an international student, you need to go out of the country, you need to go to the southern border or the northern border for whatever reason to change your I-94, you need to bring a copy of that statement saying that the government has rescinded that, right? And so you’re able to come in even if the CBP officer doesn’t know. You can’t expect them to know everything. It’s a super complicated process, but now you know.

[12:54] All right, we’re going to end this session with some of the key updates on other very important updates. The first thing is that e-SAFE is no longer working. e-SAFE is basically if you’re reapplying to get and re-enter the US and you’re applying for a waiver, that has been working. But because now of the new requirement to take the biometrics, the fingerprinting, and they’re not taking biometrics during this pandemic time, so that is on a standstill. Key update number one.

The second thing, the new NAFTA that has been signed by everyone, everybody’s really paying attention to it to see how that changes all the immigration laws. Well, no news is good news. It doesn’t seem like there are any major changes. So everything is going to go on as is. Now, if there are any other key updates, I’m sure AILA will let you know.

[13:34] All right, and that’s a wrap for day two session two, how to battle the invisible wall and deal with the I-94 situation.

I know it’s complicated. These are the things that us AILA immigration attorneys are fighting day in and day out, explaining things to CBP officers, explaining things to different ports of entry, explaining things to our clients, and building a case to make it accessible, understandable, and clear and trying to fight these mini-wins. And that when you win on Monday might not apply on Tuesday or Wednesday, and you might need to explore a new option. And that’s just the field of immigration law, and it’s constantly changing. And I hope you stay encouraged. Keep on fighting. AILA’s here with you. And if there’s anything that you know, please let us know.  We can share notes. We’re all in this together, and CBP and USCIS are not the bad guys. They’re adjudicating the law. They’re trying to make the nation a safer and more comfortable place for everybody. And clients are trying to get in. They have legitimate reasons. Let’s make this better together.

[14:24] Typically, at the end of each AILA session, all the attorneys will stay together, they will ask each other questions, they’ll talk to the speakers, they’ll exchange notes. But since this year’s AILA conference is held virtually, we’re not actually meeting and discussing. So if you have any questions about any particular topics that we covered in this video, please leave a comment below, let us know, email us, call us. We’ll be happy to discuss some of these nuances with you. It’s an extremely exciting time, and thank you for joining.

Take care. Bye-bye.