2020 AILA Conference: Day 4, Session 1: Open Forum With The Department Of State

[Tsang Intro Splash]

Hi everyone, this is Joseph, and I’m here at day four, the last day of AILA’s 2020 virtual conference. This is the biggest conference of immigration in the year. This is where we all gather and discuss key ideas and today’s track is significantly important because we’re interviewing all the top agency personnel from the Department of State to ICE to CBP, and we’re hearing what they have to say.

Just a quick disclaimer before we get started, the opinions expressed in this video should only be attributed to me, even though I am an AILA member, they cannot be attributed to AILA organization as a whole, nor even to the speakers themselves. I’m trying to do my best to summarize them. If you would like, please download the original version from AILA University, and you can also help fact-check this video. Thank you.

[0:45] And here we are at day four of session one, a panel discussion with the Department of State. Now, if you don’t know who the Department of State is, these are the people who control the consulates all over the world. These people, right? This department is responsible for executing the president’s foreign policy. Basically, these are the people who have to listen to President Donald Trump, right? Other people have to listen to the president, but these people really have to listen. And obviously, there are a lot of questions we want to ask them.

What makes it even more exciting is that in this awkward situation where they are sitting before thousands of attorneys, at least virtually, they are also simultaneously being sued by AILA. So here we are, the plaintiffs who are suing them regarding their boss’s proclamation, and then awkwardly we’re inviting, “Hey, can you also talk to us about how this is being implemented?” And so there were a lot of exciting things that were dropped. Let’s get started.

[1:41] Now, for the purpose of this video, I’m going to start with the most important revelation that we discovered and then move on to the other things that happened. We’re not going to do it chronologically like they did. And something else to note is that these speakers [Kenneth J Harder, Sandra S. Reguerin, Davide Newman, NVC Alex Jones] from AILA, as well as from the Department of State, when they were talking to each other, even though there was a lawsuit in the room hanging over everyone where AILA is actually suing their boss, the atmosphere was very cordial. They were cracking jokes, we know each other, and that is awesome. That’s America, man. We are able to talk to the opposing party in a cordial fashion because we are all here trying to make America great.

President Donald Trump is trying to make America great in his own nationalistic ways. This agency is trying to carry out his ways, but this agency also served other presidents before him and they will serve other presidents after him. And as the AILA organization, all the immigration attorneys representing clients and representing interest groups from all over the world, we’re here to try to make America great as well from a more globalist standpoint.

So, you can imagine there are people and major companies all over the world who have a lot of key questions that they want to ask, including myself as well as all my clients. And so we got ready and you can imagine there are a lot of people and companies and attorneys and clients who have a lot of questions that they want to ask the Department of State. So let’s get started.

[2:56] The first major revelation was actually revealed unintentionally. AILA has been constantly asking, “Now that the consulates are open, are we able to get a visa and we could just old on to it and we don’t have to enter until the proclamation is lifted, or until it’s safe?”

Of course the consulate says “No, you can’t do that.”

“Well how do weget an emergency appointment? What arguments can we use?”

And AILA was trying over and over to ask all these questions which we will discuss later. And the answers were “No,” “It depends by the post,” “If you have a good enough reason, we’ll consider it.” Things that were very coy, but then the Department of State said if you had a visa that’s already valid and you were in the US at the time of proclamation, you can leave and you don’t have to go to the consulate and you’re able to get back in.

And the AILA speaker was like, “Really?” and she was like “Yeah.” And it’s “Wow. That’s really helpful…” And I was looking at my team and was like, “Did you know this?” and it’s actually unexpected because the idea of the proclamation is that you want to prevent people from other countries who have these type of visas to get into steal US jobs because the idea of the proclamation is to prevent foreigners, outsiders to come into the US with H visas and L visas to steal American jobs. And also because of the pandemic and etcetera right?

And so you want to revive the economy and so if you have an H visa o L visa, if you’re in the US, we know you’re safe. People are filing extensions here, but the risk is if you leave, well, suddenly, you’re part of that group. Are you able to get back in? Do you have to go back to the consulate? Do you have to renew your visa? And the answer is if you’re able to leave the country, and you’re able to get back in, we’re not going to stop you, but if your visa expires overseas, we’re not going to issue you a new one.

[4:29] But of course, this is super risky because you’re not facing the consulate when you leave, you’re facing the airlines and the CBP when you get back in. What if you left on a valid H or L visa and when you get back in the CBP officer looks at it says, “No, there’s a proclamation. Sorry, go back,” and then cancel your visa. And then now you can’t go before a consulate and get a new visa.So there are still a lot of risks, but it is good news that the Department of State is saying people who are in the US with valid visas when the proclamation was announced are exempt.

So Pro Tip if you really need to leave and you’re part of that group that are exempt and you have a valid visa, definitely check with the CBP and if you can’t directly get to the CBP, contact AILA, AILA attorneys. They can get a hold of the CBP. Get in contact with them. Get some confirmation that it’s okay for you to re-enter. Get contacts with the airline and let them know that you are exempt and you’re able to reenter. Shouldn’t be a problem, but if you have a passport that’s about to expire, that may be a separate issue. We can talk about that later.

[5:29] And the second major revelation is that since Europe is beginning to open with the consulates and visas being issued in the airlines, what are some arguments that they’re actually accepting? And the key thing is that they are accepting economic arguments. Without the person being here in the US, if the visa is not granted, if they cannot come, there will be an economic loss to US citizens, US workers, US company, their business or economy as a whole. These economic reasons ARE actually being considered by the consulate in Europe now. This is significant because if you remember on day two’s panel discussion with other AILA lawyers and experts, they were saying consulates all around the world are not considering economic arguments, but now from the mouth of the Department of State, they are saying that this European Zone, they are accepting economic arguments. That is a good news.

And of course all of the AILA attorneys are jumping in. “Well, what about Asia? What about South America? What about Latin America? What about all these other places?”

And the answer was resoundingly “No. Only europe for now.” Now is this going to be a template for other people when they start opening up? Why is Europe getting a special treatment? et cetera… And of course the answer was “Well, it’s case by case. It’s post. And we have foreign policy in place.” But the point is Europe is now opening up and they are accepting economic arguments. So if you are a practitioner that deals with E-2s from the UK like us, they are accepting economic arguments and it could work.

[6:55] And the third major revelation is that when we were talking to the NVC, we were told that the attorney hotline, the attorney direct messaging, is down. And the way to get into contact with the NVC is through the normal inquiry form, but you select “attorney” and then everything that you normally do with the attorney channel, you put in there and so that way they have a funnel that’s very clear. If it’s attorney then they go to a special team. Just like the original team that were adjudicating cases directly from the attorney channel.But now instead of having two different channels, it’s the same funnel that goes through separately and then they will contact us back. Now this is important because NVC has just been a mess. There’s been a huge delay in processing. Consulates being shut down. USCIS has been shut down. They’re being shut down and they are the ones in between gathering everything and it’s not their job to adjudicate and it’s just super complicated. We understand.

[7:43] So typically to get things processed faster, and this is significant because NVC plays such a crucial aspect to the entire process. With USCIS being shut down, with the consulates being shut down, they are the in the middle, trying to push everything through. And if they don’t gather the documents accordingly and push it through, and… and they’re not the ones adjudicating the case. They just have to get it through. They have to issue the fee bill. It’s a process and if they can’t do it and if they can’t do their job, then kids might age out, then people might lose their status, then the visa that was supposedly granted by USCIS doesn’t actually get granted by the consulate. So they play a super crucial role. And typically, it’s the attorneys that are helping the clients go through this process and expediting. Normally something that might take a year becomes three months and it’s super important. And without this proper channel in place, things will get delayed and so we are super glad to hear that it’s the same channel, you select attorney, and then you provide all the normal documentation to get this expedited through.

[8:41] Alright now let’s move on to the four key takeaways.

The first one: AILA asked a lot of questions regarding appointments. How do I get the emergency appointment? The different arguments, um, How do I use my debit card and if it got cancelled. Things like that.

And the answers were all… it’s post by post specific just check the post website.

The second key takeaway: AILA kept on trying to ask if there’s a way to bypass an interview altogether. Can we just mail in the passport? This is based on national emergency. Then directly get a stamp because of the exemption, then they get the passport back, and they directly fly to the US because of medical reasons and what not?

And the answer from the Department of State is generally O-1 and medical reasons are okay to get the exemptions, but they still have to do an interview

The third takeaway is that what about all the people who are now overstayed in the US. Maybe they filed an extension. maybe they didn’t file an extension in the US. Maybe a tourist person came for two months, and then now they’ve stayed nearly a whole year because they can’t afford an airline back. What is going to be the Department of State’s policy? Are they going to punish them? Are they going to ban them? What’s the policy?

Use logic and reasoning, but the important thing is that you want to show you didn’t violate any immigration laws other than the fact that you’re staying here. So don’t unlawfully work. Don’t lawfully study. You have to prove that you have enough finances to be able to sustain the entire time you’re here. Get a good attorney.

And the last key takeaway relates to Hong Kong. What is the Department of State? What are all the consulates? What is NVC going to do with Hong Kong? Are they going to be considered part of China for visa processing purposes or are they going to still keep their original status under the INS. And is this designation determined by Department of State could mean additional five years to 10 years of wait time for people from Hong Kong.

And the answer from the Department of State is that Hong Kong’s designation as a separate country for visa purposes falls under the INS so unless the INS is changed Hong Kong will remain this special status. Now this is being challenged by the executive order and this is being litigated over, but until that is resolved Hong Kong should still be considered under the INS. But let’s wait and see. But that in itself should be good news because this is an executive order regarding this special provision, but it is up to Congress to change the law and so we’ll really have to see. Now of course, if you already have a visa issuance and you are from Hong Kong and you’re about to get your immigration visa, this process might take a while and until this is resolved you might not be able to get the green card immediately. But we’ll wait and see.

[11:09] And that’s a wrap for this session. I hope you found that helpful. I know in normal AILA conferences, there are a lot of attorneys when they go to the conference, they skip the first two/ three days and they just go to these sessions where they get to engage and talk to and ask questions to the direct department heads. It’s super exciting. 

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Thank you and have a great rest of the year. Bye-bye.