2021 AILA Conference Day 3 Session 1: Department of State Open Forum

The Department of State Open Forum, the whole world is watching this forum because there’s so many key information that’s being released today. Hi everyone, this is Joseph, welcome to AILA 2021 conference session one, day three. Let’s get started.

[0:17] Good news number one: the National Interest Exception now includes economic factors as well. Before it was on there and then it dropped off, and now it’s back on. Why is that important? As later on we’ll talk about it, but because business is such a low priority for most consular posts. If you have a business reason that you need to come to the US, it’s pretty low on the priority list. There are so many other people that are ahead of you to get in line to get the visa that you’re probably not going to get a visa for many, many months, maybe even years. But if you can frame it in the sense of an economic hardship or a significant economic impact, then you can get that emergency pass to get that visa to come to the US. Before this wasn’t even available, but now it is.

[1:02] On the topic of National Interest Exceptions, if you have a specific reason that you need to come to the US but your reason doesn’t fall in line with all the other National Interest Exceptions, it’s not because of infrastructure, it’s not because of health, it’s not because of medical or economic or any of those factors listed normally, there is now a catch-all provision that you can use. They taught us on this forum how to apply for it. If you want to find out, go ahead and download this from AILA Agora, and you can find out more.

[1:31] The second thing is a bad news, and that’s E-visas. The Investment Treaty Trader visa, it’s so low on the priority that people are just not getting interviews, or it’s being denied or delayed, and it’s a mess all around the world. The reason for that is because normal business reasons that you’re making an investment, you’re opening up a shop is so low on the priority list for people that need to come to the US that they’re just not granting these interviews. So, that is the bad news.

Now, sidebar, if you need to renew your E-visa, if your dependents need to renew your visa, other consular posts are open to that, and some consular posts are not allowing third-party nationals, but they make an exception for E-visas. This is not something that was mentioned, but this is totally true. We’ve helped tons of clients get their E-visas renewed at the nearby consular post. Yes, that’s a good news.

[2:27] The third thing is SB1 visas being denied. Now, that’s bad news. A lot of the AILA attorneys asked the Department of State why all these SB1 visas are being denied, what are the parameters, what are the things that you’re looking for? The Department of State really didn’t give a clear answer. They just said, “Prepare all your documentation. It’s up to the Section Chief’s discretionary authority to grant whether or not somebody can return to the US.” Now, if you don’t know what the SB1 visa is, basically, if you are a lawful permanent resident and you’ve been abroad outside of the US for over a year, well, technically, your green card has been abandoned. You need to apply for SB1 visa to come back and you need to prove that you did not abandon your green card. The factors include your trip abroad was temporary and coming back to the US is your permanent home, things like that. And when you hear that, you might think, “Oh, that’s fairly simple, that’s pretty obvious, of course, I didn’t abandon my green card, that’s insane.” I filed taxes, I temporarily couldn’t go back because of the airplane and pandemic. Yet a lot of consulates around the world have been denying SB1 visas, and we kind of knew that already, but this time it was, we got to directly talk to the Section Chiefs as a whole, and them as a whole basically said, “No, you just need to prepare all the documentation.” Now, that’s very PC. Of course, they can’t directly say why and how and all this stuff, and that was actually the same response given by the CBP Open Forum. If you haven’t watched my video on the CBP, you should do it now.

[4:01] Okay, now that you’ve watched the CBP Open Forum, you know exactly what they’re saying, basically prepare your documents well and we will adjudicate it on a case-by-case basis. That’s the same thing as what the Department of State is saying. Well, why is there such a drastic difference and drastic results? CBP officers, generally speaking, in the past year have been allowing people in, even if they’ve been out of the country for almost two years. Our office, we’ve represented people who’ve been outside of the US for three years in the past year to come back successfully. Yet people who’ve just been out a little bit over a year have been denied the SB1 visa. Now, know if your SB1 visa gets denied and you don’t pursue other means, basically, your visa just got ripped up, man, that’s crazy.

[4:49] Whenever I see an anomaly like this, where government actions don’t quite make sense, my journalistic instincts geek out, and I get super excited. Why is this happening? Same set of law, two different agencies, completely drastic different responses. And I think the answer is BATNA, the Best Alternative Negotiated Agreement. Basically, the idea is, what’s the consequence of the case getting denied? So, if you are a CBP officer, you are seeing thousands of people before you trying to come to the US, and somebody has been out for a little bit over a year or two years, are you gonna execute your authority and make them buy a plane ticket and fly back to their home country for 14 hours, or are you going to try to focus on the drug lords that are trying to come in, trying to catch them, right? You, as a CBP officer, your choice of denying somebody entry is compared to all these other people. Now, compared to a visa consulate officer, where you have to schedule an appointment and you have a one-on-one time for 20 minutes or 30 minutes to review all their documents, and if you deny them, well, they just go back down the street and go back to their home where they’ve been staying for a year, for two years. Yes, it’s still canceling a green card, but still, the consequence arguably is not that big. I really don’t have an explanation. I know that the consular officers are completely overworked with everything that they’re doing, and as we go down the list, we’ll see all the things that they’re struggling with, and so this might be just one of the lowest priorities. But then again, right, if it’s such a low priority, just grant the visa, and the LPRs can fly back to the US. So, I don’t know what’s going on, but that is my best take on this problem. 

If you can come up with a better reconciliation about this particular problem, treat it like an LSAT problem, right? What is the best explanation to resolve this inconsistency? Please leave a comment below, let me know your thoughts.

[6:36] The next thing, and perhaps the biggest thing that everybody wants to know is what is the priority for immigrant visas and non-immigrant visas? How are the consulates scheduling these interviews because their capacity to interview people is still so limited? So with the limited space available for appointments and all these people want to come to the US, what is the priority list? You’re not going to get this information anywhere else online other than this open forum, that’s amazing. So they listed out exactly what their priorities are for immigrant visas and non-immigrant visas. Let me give it to you.

[7:11] Let’s start with the non-immigrant visas. The first, if you have an urgent need, then the diplomats, then mission-critical, urgent food supply shortage. If you are here to solve that kind of infrastructure problem, students, right? So these are the top five, and then everything else. Business doesn’t even make the top five list, isn’t that crazy? That’s amazing, I love it.

[7:32] Next, let’s talk about the immigrant visas, the priorities of people getting these appointments, these so scarce appointments so that they can get the visa, come to the US, and finally get their green card. Many of these people have been waiting for a long time already because immigrant visas, a lot of them have been canceled. So they might have already gotten the immigrant visa a year ago or two years ago, but because of all the reasons that happened, they couldn’t get it. And now, what are the priorities? The first people who have been adopted, adoption visas. Second, very closely aligned to that are the children who are about to age out. Now, if you don’t know about immigration law, if you are going to age out, if your children are past a certain age, then they don’t qualify to come with you. So, you finally waited many, many years, and suddenly the child is now over 21, and so they can no longer come with you, and that’s a nightmare. So, they get priority. After that are the immediate relatives, right? The spouses, the children of US citizens, things like that, immediate relatives, and then family preference cases, and then returning lawful permanent residents, those are the SB1 visas that we’re talking about. Many consulates are designating one day a week just for returning residents. There are so many green card holders that are outside of the US and they need to come back home, so one day a week designated for them. So, those are the top priorities, pretty much all family-based cases. Again, business not even on the map, right? So, if you’re EB1, EB2, EB3, B4, EB5, it doesn’t matter how much you invested, if you’re an Einstein, if you’re like a high executive, sorry, we’re not gonna give you the visa to come to the US. You’re so low on the priority list right now.

[9:09] Next up is Charlie, Charlie Oppenheim. Now, if you don’t know who he is, he is in charge of the priority dates, of who can come in, who can come out across the entire world. He wields an enormous amount of power. There are entire YouTube channels dedicated to following and predicting what he’s gonna say. He’s a jolly good personality, and of course, during this open forum, he showed up, and he gave a lot of good information. I’m not gonna cover that here, but if you’re interested or you’re one of those YouTubers that are dedicated, you need to download this session from AILA Agora right now. Sneak peek, he talked a lot about India, so there’s a lot of adjustments that’s going on there.

[9:48] The last thing I want to talk about is a concerning trend that we are beginning to see, not at one consulate, not at two, but more than five around the world. We are beginning to see consulate officers ask the people who they are interviewing, “Let me see the engagement letter that you have with your attorney. Show me the retainer between you and your family and your lawyer, how much did you pay, and what are their services?” When pressed about this, there’s no official reason given on why they are doing this, but that is concerning on a lot of fronts. Because, first, attorney and client privilege, as an attorney, you cannot release your client’s information to a third party unless there’s a court order, there’s a warrant, or something. So, privilege is completely protected, but that privilege is held by the client. You as a client have the authority to take your information and give it to anybody else, and then when you do that, it’s released. But the thing is, that is concerning, right? Because if the officer is asking you for it, you’re sort of in a situation of duress. If you don’t give it, well, what happens? Your case might be denied. But if you do give it, well, that becomes concerning as well because why are they asking it, and how is that even relevant?

[11:00] Now, if I were to venture a guess and give the benefit of the doubt, maybe the Department of State is trying to catch fraud, right? I know from my personal experience, a lot of consulates are asking, which law firm did you hire, did you hire a local agent in the country overseas or did you hire a US law firm, and who and what and why are and why they’re asking a lot of these questions, but they’re not asking, at least from my experience, they haven’t actually asked for the retainer yet. Now, I’m not so concerned about releasing our retainer because it’s relatively simple. You as the client retained us to apply for the L1 visa or O1 visa, and here’s the service and here’s the price, that’s it, it’s very straightforward, there’s nothing unique about it. But maybe there are certain firms outside of the US or in the US, or maybe some clients, they don’t even, they haven’t even officially hired a law firm, they hired an agent, an agent hired another agent, another agent hired a law firm, and they’re getting scammed. So, for whatever reason, there is now a movement that consular officers are asking for the engagement letters between the client themselves and the law firm, and if not provided, drastic consequences will happen.

[12:09]So, that is something that’s on trend. Attorneys, of course, we don’t feel comfortable about it, I kind of make sense of it, I don’t know why they’re doing it. Honestly, from my experience with consular officers, they usually don’t want to do more than they have to. So, if they’re doing it, there must be a really good reason why. So most likely there’s a lot of fraud going on and they’re trying to catch that. So, if you’re an attorney representing a client, be very careful about your engagement, and if not providing an engagement, do provide it and make it good. Okay, so it’s an art, crafting an engagement, we’ll probably do a whole another YouTube series on it, but anyways, that’s a trend.

[12:44] There’s so much good information provided in this open forum. This is probably the one that everybody’s been waiting for. So, if you haven’t had a chance, and there’s so many other things, by the way, that were talked about that I couldn’t cover in this short amount of time, so please get it from AILA Agora or AILA University. I just got the email from them if you or if you subscribe to AILA, their sessions are available all the way through December.

And that’s it for this video. If you like what you see, please smash that like button, subscribe, and we are on to our next session. Let’s go.