USCIS to Shrink Overseas Presence to Seven Locations

 

We almost missed a recent announcement from the U.S. Citizenship and Immigration Services (USCIS) dated August 9 concerning its “international footprint.” It will maintain its presence at seven locations but will close 13 field offices and 13 district offices within the next year.

U.S. Citizenship and Immigration Services (USCIS) announced today plans to maintain operations at its international field offices in Beijing and Guangzhou, China; Nairobi, Kenya; and New Delhi, India. Previously, Acting Director Ken Cuccinelli directed the agency to continue operating in Guatemala City, Guatemala; Mexico City, Mexico; and San Salvador, El Salvador, as part of a whole-of-government approach to address the crisis at the southern border.

While retaining these seven international offices, USCIS plans to close the remaining thirteen international field offices and three district offices between now and August 2020. The first planned closures are the field offices in Monterrey, Mexico, and Seoul, South Korea, at the end of September. These organizational changes will allow more effective allocation of USCIS resources to support, in part, backlog reduction efforts.

“This cost-effective and high value international footprint allows USCIS to efficiently adjudicate complex immigration petitions that require in-person interviews, to enhance integrity through fraud detection and national security activities, and to liaise with U.S. and foreign government entities to improve migration management capacity,” said Cuccinelli. “In the months ahead, USCIS will close its other international offices on a staggered schedule, ensuring a smooth transition of workloads to USCIS domestic offices and State Department consular sections, while mitigating impacts on USCIS staff who will rotate back to domestic positions.”

Many functions currently performed at international offices will be handled domestically or by USCIS domestic staff on temporary assignments abroad. As part of this shift, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices. In addition to issuing visas to foreign nationals who are abroad, DOS already performs many of these service functions where USCIS does not have an office. USCIS is working closely with DOS to minimize interruptions in immigration services to affected applicants and petitioners.

As of this writing, travel.state.gov’s newsroom remains pretty sparse with news.

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#USCIS Badly Written ‘Policy Alert’ on Citizenship Blows Up, Causes Wildfire

 

 

The U.S. Citizenship and Immigration Services published a Policy Alert on August 28, 2019 on “Defining Residence in Statutory Provisions Related to Citizenship.”  The same day, the agency had to issue a USCIS Policy Manual Update and the Acting USCIS Director Ken Cuccinelli subsequently had to issue a statement clarifying the policy update, “This policy update does not affect who is born a U.S. citizen, period.  This only affects children who were born outside the United States and were not U.S. citizens.  This does NOT impact birthright citizenship.  This policy update does not deny citizenship to the children of US government employees or members of the military born abroad.  This policy aligns USCIS’ process with the Department of State’s procedure, that’s it.”
That’s it! The end. But that doesn’t make it so. There was a hashtag trending already.
So, first, we need to point out that the Foreign Affairs Manual (see 8 FAM 301.1) already dispels the myth that birth on a U.S. military base outside of the United States or birth on U.S. embassy or consulate premises abroad constitutes as “birth in the United States:”

(1) Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment.  A child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth;

(2)  The status of diplomatic and consular premises arises from the rules of law relating to immunity from the prescriptive and enforcement jurisdiction of the receiving State; the premises are not part of the territory of the United States of America.

Children born at U.S. military installations overseas or at U.S. diplomatic and consular premises are not born in the United States and do not/do not acquire U.S. citizenship by reason of birth in the United States or outlying possessions; they could acquire citizenship through one or both their U.S. citizen parents.  We’re throwing this out there because various reporting appears to perpetuate the misconception that birth in these premises accord children their U.S. citizenship; it doesn’t.
Now, we’ve read USCIS’s multiple justifications for this update (pages 9-10), and we still don’t understand the reasoning for rescinding the previous interpretation. What precipitated this update? If true that this affects only approximately a hundred annually, why is this update even necessary?  Supposedly, the original  policy determination was made in 2004, and there were changes in 2008, but the previous Administration did not clean it up or reconcile the conflicts in the various  parts of the Immigration Act so the current Administration is now updating the policy? That’s basically what USCIS is saying on the Alert.
Also, the previous policy apparently “produced confusion” which obviously, this policy update does not.
One blog pal who did consular work called it “messy and contradictory prior guidance.” But we think part of the problem is that this Administration has such a poor record on immigration that it even when it is providing a policy guidance to clean up or sort out the conflicts in the law, it causes a wildfire in our heads.
We have some thoughts about this updated USCIS policy; just that  – some thoughts based on the published regs because we’re nerdy that way and the wildfire caused by this interests us. That USCIS Policy Alert is frankly, a convoluted piece of work but it makes two points:  one, it makes a distinction between a “residence” and “physical presence” in the United States, and two, it talks about change specific to INA 320.

Residence vs. Physical Presence

The USCIS Policy Alert basically says that an individual may be physically present in the United States for summer camps or while visiting relatives for weeks or even months but those would not constitute a residence  for the purposes of transmission of citizenship. Page 4 of the Alert notes:

Residence is more than a temporary presence or a visit to the United States. Therefore, temporary presences and visits are insufficient to establish residence for the purposes of transmitting citizenship. For example, someone who resides along the border in Mexico or Canada, but works each day in the United States, cannot use his or her workplace to establish a residence.”

We found a similar language in the State Department’s 8 FAM 301.7-4(B)  Birth in Wedlock or of Wedlock to Two U.S. Citizen Parents, updated in June 2018, which notes the following:

Residence is not determined solely by the length of time one spends in a place, but also takes into account the nature and quality of the person’s connection to the place.  This is a very fact-specific test.  However, at all times and in all cases, residence involves the connection to a specific physical place.  Residence is not a state of mind that travels with a person.  Department guidance clearly states that residence is more than a temporary presence and that visits to the United States are insufficient to establish residency for the purposes of citizenship transmission under INA 301(c).

8 FAM 301.7-4(B) also notes that “a child born abroad to two U.S. citizens acquires U.S. citizenship at birth if, before the child’s birth, one of the parents had a residence in the United States or its outlying possessions.  No specific period of residence is required.”
Is that why USCIS want to clarify this? The USCIS Policy Alert description of documents required to demonstrate residence is almost identical to the State Department’s list enumerated in the 8 FAM 301.7-4(B) section, by the way.
This FAM citation also helpfully points out:

The concept of “residence” should not be confused with the term “physical presence” which is used elsewhere in the INA as the test for transmitting citizenship, and which is a more literal concept that may be easier to apply.  INA 301(g), for example, requires that when only one parent is a U.S. citizen, that citizen parent must have a specific duration of physical presence — not residence–in the United States prior to the birth of the child in order to transmit U.S. citizenship to the child.  Unlike in INA 301(g), in INA 301(c), Congress chose to use the term “residence,” and not set a time requirement.  The rationale being that the nature of a residence presupposes the sort of relationship to a place that mere physical presence does not.

INA 320/INA 322

The USCIS Policy Manual Update explains the Policy Alert better:
      • Clarify that temporary visits to the U.S. do not establish U.S. residence;
      • Explain the distinction between residence and physical presence in the United States; and
      • Explain that USCIS no longer considers children who are living abroad with a parent who is a U.S. government employee or U.S. service member as “residing in the United States” for purposes of acquiring citizenship under INA 320.
That’s simple enough when put that way. It also links to Automatic Acquisition of Citizenship after Birth (INA 320) and the  General Requirements for  Genetic, Legitimated, or Adopted Child Automatically Acquiring Citizenship after Birth.
So we looked up INA 320 in the FAM. Per 8 FAM 301.10-1(A), the Child Citizenship Act of 2000 (CCA), Public Law 106-395, which took effect February 27, 2001, amended INA 320 to extend U.S. citizenship automatically to certain foreign-born children of U.S. citizens.  It extended citizenship to three categories of children:

(a)  Children of naturalized citizens;
(b)  Children adopted abroad by U.S. citizens; and
(c)  Children born abroad to a U.S. citizen and who do not otherwise acquire U.S. citizenship at birth under INA 301 as made applicable by INA 309.

The law also amended INA 322 to apply only to children who reside outside the United States and who do not have Lawful Permanent Resident (LPR) status; amended INA 322 to provide for expeditious naturalization to children born outside the United States and who do not have LPR status.;  and stepchildren cannot avail themselves of the CCA unless they have been adopted by the U.S. citizen step parent.
The FAM notes that children acquiring U.S. citizenship under the Child Citizenship Act are not eligible for form FS-240, Consular Report of Birth Abroad of Citizen of the United States of America or form DS-1350, Certification of Birth, which are processed by consular sections at US embassies and consular posts overseas.
The acquisition of U.S. citizenship under the revised INA 320 or revised INA 322 is a form of expedited administrative naturalization.  The FAM cite further notes that Section 322 INA is administered exclusively by U.S. Citizenship and Immigration Services (USCIS).
So it looks like what this policy update does in attempt to clarify what “residence” means, and it removes the exception  under the Child Citizenship Act of 2000 (CCA) for children of U.S. government employees and U.S. armed forces members residing outside the United States. One of the requirements under INA 320 is that “The child is residing in the United States in the legal and physical custody of the U.S. citizen parent. [5]  
One source who did consular work told us that it may be that U.S. military serving overseas are considered resident on, for instance, a U.S. base in Germany. Well, in fact, the USCIS still has this in their footnotes as of this writing: 

“5. [^] See INA 320. See 8 CFR 320.2. Children of U.S. government employees temporarily stationed abroad are considered to be “residing in the United States” for purposes of acquisition of citizenship under INA 320. 

We borrowed another head which happens to be a consular one, and he/she thought that with this policy change of what is a “residence,” U.S. citizens could not just be on TDY to the United States or on a visit to obtain citizenship for their children, they have to be residing in the United States. Whereas in the past, military members or FS members may be able to arrive in the US. and get naturalization for their children then return overseas to continue their assignment, it appears that this new update would make it so that U.S. citizen parents have to do the naturalization on behalf of their minor children at the end of their overseas tours and when they are permanently relocating to the United States. At least, that’s how we’re reading this policy update at this time. We’re happy to entertain other interpretations.
We’ve checked the USCIS website to see what this means in terms of processing fees and time.  The USCIS website which has not been updated yet as of last night notes that per INA 320, the child must be under 18 years of age and must be a legal permanent resident in order to qualify. In order to obtain a Certificate of Citizenship, a child who has automatically acquired citizenship must follow the instructions on the Application for Certificate of Citizenship (Form N-600). This cost $1,170 and the fee applies even if the applicant is filing as an adopted child or as a child of a veteran or member of the U.S. armed forces. Processing time for an N-600 case according to USCIS is between 5 Months to 24.5 Months (same for Newark, NJ, and WashDC but may vary for other areas).
Effective October 29, 2019, USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as “residing in the United States” for purposes of acquiring citizenship under INA 320, but they may still apply under INA 322.

In general, INA 322 provides that a parent who is a U.S. citizen (or, if the citizen parent has died during the preceding five years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born and residing outside of the United States who has not acquired citizenship automatically under INA 320. The child must naturalize before he or she reaches 18 years of age.

See Children of Service Members Residing Abroad (INA 322). (Form N-600K) This also cost $1,170. Processing time for an N-600K case in El Paso, TX is between 6.5 Months to 28.5; same processing time for Los Angeles, CA, although the time may vary in other locations; we haven;’t checked all the locations).
Based on USCIS info, the processing fees are the same either way, but applications under INA 322 may take slightly longer than applications INA 320.  Are there any other ways where the INA 322 process is different or more challenging to applicants? We’ll update this post if we learn anything more.

 

Related items:

301.7 IMMIGRATION AND NATIONALITY ACT OF 1952

301.1 (U) ACQUISITION BY BIRTH IN THE UNITED STATES

8 FAM 301.10 ACQUISITION OF U.S. CITIZENSHIP BY THE CHILD CITIZENSHIP ACT

 

@StateDept to start requiring Diversity Visa applicants valid, unexpired passports on electronic entry forms

 

On June 5, 2019, the State Department published on the Federal Register an interim final rule requiring alien petitioners for the Diversity Visa Program “to provide certain information from a valid, unexpired passport on the electronic entry form.”

Diversity Visa Program, DV 2016-2018: Number of Entries Received During Each Online Registration Period by Country of Chargeability. (Click on image to see the full pdf document)

Excerpt:

An estimated 14 million aliens register annually for the DV Program through an electronic entry form. The entry form collects information on the petitioner’s full name; date and place of birth; gender; native country, if different from place of birth; current mailing address; and location of the consular post where the diversity visa should be adjudicated, if the petitioner is selected through the DV lottery. The electronic entry form also collects information about the names, dates and places of birth for the petitioner’s spouse and children. The entry process is open to all aliens who are natives of “low-admission” countries without numerical limitation, defined as countries with fewer than 50,000 natives admitted to the United States during the most recent five-year period. After the close of the DV Program entry period, petitioners are selected through a randomized computer drawing (“selectees”) for consideration for one of the 50,000 available diversity visa numbers.

Section 204(a)(1)(I)(iii) of the INA, 8 U.S.C. 1154(a)(1)(I)(iii), vests the Secretary of State with authority to set by regulation the information and documentary evidence to support a petition for entry into the DV Program. The requirements are set out in 22 CFR 42.33.

With this rule, the Department is amending 22 CFR 42.33(b)(1) to require the petitioner to include on the electronic diversity visa entry form the unique serial or issuance number associated with the petitioner’s valid, unexpired passport; country or authority of passport issuance; and passport expiration date. These requirements will apply only to the principal petitioner and not derivatives listed on the entry form. These requirements apply unless the petitioner is either stateless, a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or the beneficiary of an individual waiver approved by the Secretary of Homeland Security and the Secretary of State, consistent with the passport waivers for immigrant visa applicants provided for in 22 CFR 42.2(d), (e), and (g)(2). A petitioner who does not have a passport and is either stateless, is a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or has an individual waiver of the passport requirement from the Secretary of Homeland Security and the Secretary of State, must indicate that he or she falls into one of these three circumstances on the electronic entry form, instead of providing passport information. The requirements for information from a valid passport will not be waived under any other circumstances.

Mandatory Disqualification

The Department is also clarifying that failure to accurately include any information required by 22 CFR 42.33(b)(1) and (2) will result in mandatory disqualification of the petitioner for that fiscal year. The existing regulations require the petitioner to submit specific information, including, but not limited to: Name, date of birth, and place of birth for the principal petitioner and any relatives that may accompany the petitioner, if selected to apply for a diversity visa, as well as a digital photo. While these are currently requirements for the diversity visa entry form, existing regulations do not make clear the consequence for failure to provide the information. The revised regulation clarifies that failure to provide the required information, including a compliant photograph, will result in the disqualification of the entry, the petitioner, and derivatives from the DV Program for that fiscal year.

Why is the Department promulgating this rule?

The Department has historically encountered significant numbers of fraudulent entries for the DV Program each year, including entries submitted by criminal enterprises on behalf of individuals without their knowledge. Individuals or entities that submit unauthorized entries will often contact unwitting individuals whose identities were used on selected DV Program entries, inform them of the opportunity to apply for a diversity visa, and hold the entry information from the named petitioner in exchange for payment. Requiring that each entry form include a valid passport number at the time of the DV Program entry will make it more difficult for third parties to submit unauthorized entries, because third parties are less likely to have individuals’ passport numbers. Entries submitted by unauthorized third parties using a duplicative passport number will also be easily identified and automatically disqualified.

Click here to read the entire notice, or for information on where to send comments (accepted up to July 5, 2019).

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State/CA Asst Secretary Carl Risch to Give Up Control of 50 Attorneys to the Legal Adviser?

Posted: 1:56 am EST

 

We understand that Assistant Secretary for Consular Affairs (CA) Carl Risch is reportedly “electing to give up control of 50 attorneys under his leadership” in the Consular Affairs bureau.

Give them up? CA has 50 attorneys? He is reportedly moving them to the Office of the Legal Adviser (L). 

“Guy has no idea how many of his requests will now go unanswered because legal adviser will be arbiter of what policies deserve attention. Major implications for immigration law at State.”

We’re not sure if this move covers just the Office of Legislation, Regulations and Advisory Assistance (CA/VO/L) or also includes the Office of Legal Affairs (CA/OCS/L).  If he gives them up, does CA stops funding them, so then he gets to write this move on his “savings” column? Or if he gives them up, does CA still pays for them but won’t be responsible for them? What does that give Consular Affairs? How does that impact Consular Affairs, and consular posts overseas who may need legal guidance/advisories? 

We’ve asked CA about this a week ago — about Mr. Risch’s justification for this move, and how this will this impact immigration law at State.  It looks like we have a hot/cold relationship with the CA dahrlings, sometimes they respond quickly, and sometimes they give us this glaring silent treatment for just asking questions.

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USG Sends 5,200 Armed Troops to Border Against Purported Migrant “Invasion” a Week Before Elections

DHS/CIS clearly states that people may only apply for asylum if they are arriving in or already physically present in the United States. To apply for asylum in the United States, foreign nationals may ask for asylum at a port-of-entry (airport, seaport, or border crossing), or, if they are already in the United States, they may file Form I-589, Application for Asylum and for Withholding of Removal, at the appropriate Service Center. They may apply for asylum regardless of their immigration status, whether they are in the U.S. legally or illegally.

Per 2 FAM 220 on asylum cases, U.S. embassies and consulates may not/may not grant or in any way promise “asylum” to any foreign national:

Although foreign nationals may request “asylum,” posts should be aware that the term has specific meaning in U.S. immigration law. Persons may apply for asylum under U.S. law only if they are physically present in the United States or at a land border or port of entry and may be granted asylum only if they meet the definition of a refugee under U.S. law and are otherwise admissible. The United States does not recognize the granting of asylum at posts abroad. Requests for asylum by persons in the United States are handled by the Department of Homeland Security (DHS) and the immigration courts of the Executive Office for Immigration Review within the Department of Justice. Refer questions relating to such procedures to the Department, Bureau of Democracy, Human Rights and Labor, Office of Multilateral and Global Affairs (DRL/MLGA).

On Refugees:

Posts may not in any way promise that an individual will be admitted to the United States as a refugee. A U.S. embassy may refer any individual who appears to meet the definition of a refugee to the U.S. Refugee Admissions Program for consideration. Embassies may refer someone to ensure protection or provide a durable solution in compelling circumstances. Due to resource constraints and other foreign policy concerns, posts usually refer individuals only because of a significant humanitarian concern; a particular U.S. Government interest; or an especially close link to the United States. Acceptance of a referral by the program does not guarantee that an individual will be admitted to the United States as a refugee.

So when POTUS says “If they want to come into the country, you have to apply, like other people,” that’s what people are actually trying to do: presenting themselves at a U.S. border crossing because U.S. law requires that for people applying for asylum.

AND NOW THIS: “NO ONE IS COMING TO GET YOU”

MEANWHILE, ELSEWHERE IN THE WORLD OF LIGHT WHERE FEAR IS NOT A STRIKE ANYWHERE MATCH HEAD:

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USG, Inc. Attempts to Derail World Health Assembly’s Nonbinding Resolution on #Breastfeeding

 

On June 7, the community editor of Malnutrition Deeply’s Amruta Byatnal reported about the attempt of the United Staes Government to derail a nonbinding resolution on breastfeeding at the World Health Assembly (WHA) in Geneva.

What should have been a non-controversial discussion on breastfeeding turned rancorous at the recent World Health Assembly (WHA) in Geneva.Advocates at the event have accused the U.S. delegation of trying to stop a resolution on infant and young child feeding from being introduced. The U.S. representatives later pushed for diluted text that removes references to regulating aggressive marketing of breast milk substitutes.

[snip]

The first draft was originally supported by Sri Lanka, Sierra Leone, Cambodia and Nepal, and contained several references to the International Code of Marketing of Breast-milk Substitutes, which outlines what levels of marketing are acceptable while seeking to protect the health of infants and young children.

[snip]

This opposition made its way to the WHA, where the U.S. delegation allegedly threatened countries with trade retaliation if they introduced the resolution, according to civil society advocates. Ecuador, which had led the drafting of the resolution, actually pulled out from introducing it.

[snip]

The United States also attempted to stall this passage, advocates say, by suggesting an alternative text that omitted any reference to the WHO code or any of the text relating to specific guidance around inappropriate marketing of infants foods.

Reports say that the U.S. delegation was led by Health and Human Services Secretary Alex Azar who reportedly declined requests to provide on-the-record comments to news deeply.  Remember this is the same guy who told Congress  that he could find separated kids with basic keystrokes.

“There is no reason why any parent would not know where their child is located,” said Azar during a Senate hearing Tuesday. “I sat on the ORR portal, with just basic key strokes and within seconds could find any child in our care for any parent available.”

On July 8, NYT also reported the threats against Ecuador:

The Americans were blunt: If Ecuador refused to drop the resolution, Washington would unleash punishing trade measures and withdraw crucial military aid. The Ecuadorean government quickly acquiesced.

In the end, the Americans’ efforts were mostly unsuccessful. It was the Russians who ultimately stepped in to introduce the measure — and the Americans did not threaten them.

Oh-uh!

An anonymous HHS spox (not a blogger) provided a statement to the NYT:

“The resolution as originally drafted placed unnecessary hurdles for mothers seeking to provide nutrition to their children,” an H.H.S. spokesman said in an email. “We recognize not all women are able to breast-feed for a variety of reasons. These women should have the choice and access to alternatives for the health of their babies, and not be stigmatized for the ways in which they are able to do so.” The spokesman asked to remain anonymous in order to speak more freely.

So, it looks like there’s a growing list of cabinet secretaries and others who go on national TV, or speak from the podium to eternal, historical embarrassment … pray tell, who taped them to those lying microphones?

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July 4, 2018: Celebrations, Boycotts, Lies, Cages, Profiteers, One Fired Cartoonist

 

Meanwhile — we understand that it was a spectacular show on teevee. Apparently, one story changed more than a dozen times, and ratings were like nothing ever seen before.

And then a cartoonist was fired for his catalog of brutal realities. If you’ve lived in developing countries ruled by dictators (who typically, take over media outlets in the name of protecting their people), you will quickly realize that media outlets run by pals and cronies is a perilous cliff. Before long, the only cartoons and news fit to print are friendly litanies of the life of the country. There are no dissenters in fairytales, of course. We don’t want to be that country. I don’t think we will … but it doesn’t help my troubled soul tonight.

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More than just sanctuary, migrants need social citizenship #seventhperson

By Nancy Berlinger:  a research scholar at The Hastings Center in New York. Her most recent book is Are Workarounds Ethical? Managing Moral Problems in Health Care Systems (2016). She co-directs the Undocumented Patients project. | Via Creative Commons Attribution-No Derivatives

 

In 1975, the English author John Berger wrote about the political implications of immigration, at a time when one in seven workers in the factories of Germany and Britain was a male migrant – what Berger called the ‘seventh man’. Today, every seventh person in the world is a migrant.

Migrants are likely to settle in cities. In the United States, 20 cities (accounting for 36 per cent of the total US population in 2014) were home to 65 per cent of the nation’s authorised immigrants and 61 per cent of unauthorised immigrants. In Singapore, migrant workers account for 20 per cent of the city-state’s population. (Migrants continue to be a significant rural population. In the US, three-quarters of farm workers are foreign-born.)

Scholarship on migration tends to focus normative arguments on the national level, where policy concerning borders and immigration is made. Some prominent political philosophers – including David Miller at Nuffield College, Oxford, and Joseph Carens at the University of Toronto – also outline an account of ‘social membership’ in receiving societies. This process unfolds over five to 10 years of work, everyday life and the development of attachments. As Carens writes in ‘Who Should Get In?’ (2003), after a period of years, any migrant crosses a ‘threshold’ and is no longer a stranger. This human experience of socialisation holds true for low-wage and unauthorised migrants, so a receiving society should acknowledge that migrants themselves, not only their economic contributions, are part of that society.

Carens and Miller apply this argument to the moral claims of settled migrants at risk of deportation because they are unauthorised or because the terms of their presence are tightly limited by work contracts. In the US, for example, most of the estimated 11.3 million people who crossed a border without authorisation or are living outside the terms of their original visas have constituted a settled population for the past decade, with families that include an estimated 4 million children who are US citizens by birthright. In The Ethics of Immigration (2013), Carens writes that the prospect of deporting young immigrants from the place where they had lived most of their lives was especially troubling: it is ‘morally wrong to force someone to leave the place where she was raised, where she received her social formation, and where she has her most important human connections’. Miller and Carens concur with the Princeton political theorist Michael Walzer’s view of open-ended guest-worker programmes as ethically problematic. The fiction that such work is temporary and such workers remain foreign obscures the reality that these migrants are also part of the societies in which they live and work, often for many years, and where they deserve protection and opportunities for advancement.

Not all migrants will have access to a process leading to national citizenship or permanent legal residence status, whether this is because they are unauthorised, or their immigration status is unclear, or they are living in a nation that limits or discourages immigration while allowing foreign workers on renewable work permits. If we agree that migration is part of the identity of a society in which low-wage migrants live and work, whether or not this is acknowledged by non-migrants or by higher-status migrants, what would it mean to build on the idea of social membership and consider migrants as social citizens of the place in which they have settled? And what realistic work can the idea of social citizenship do in terms of improving conditions for migrants and supporting policy development?

Social citizenship is both a feeling of belonging and a definable set of commitments and obligations associated with living in a place; it is not second-class national citizenship. The place where one’s life is lived might have been chosen in a way that the nation of one’s birth was not; for a Londoner or a New Yorker, local citizenship can be a stronger identity than national citizenship. Migrants live in cities with a history of welcoming immigrants, in cities that lack this history, and also in cities where national policy discourages immigration. Considering how to ensure that social citizenship extends to migrants so that they get to belong, to contribute, and to be protected is a way to frame ethical and practical questions facing urban policymakers.

Considering migrants as social citizens of the cities in which they settle is related to but not the same as the idea of the city as a ‘sanctuary’ for migrants. Throughout the US, local officials have designated ‘sanctuary cities’ for undocumented immigrants subject to deportation under policies announced by the federal government in February 2017. This contemporary interpretation of an ancient concept refers to a policy of limited local cooperation with federal immigration officials, often associated with other policies supporting a city’s migrant population. Canadian officials use the term ‘sanctuary city’ similarly, to refer to local protections and potentially also to limited cooperation with border-control authorities. In Europe, the term ‘city of sanctuary’ tends to refer to efforts supporting local refugees and coordinated advocacy for refugee admission and rights. These local actions protecting migrants are consistent with a practical concept of social citizenship in which civic history and values, and interests such as being a welcoming, diverse or growing city, correspond to the interests of migrants. However, the idea of ‘sanctuary’ suggests crisis: an urgent need for a safe place to hide. To become social citizens, migrants need more from cities than sanctuary.

Local policies that frame social citizenship in terms that apply to settled migrants should go beyond affirming migrants’ legal rights and helping them to use these rights, although this is certainly part of a practical framework. Social citizenship, as a concept that should apply to migrants and non-migrants alike, on the basis of being settled into a society, can build on international human rights law, but can be useful in jurisdictions where human rights is not the usual reference point for considering how migrants belong to, contribute to, and are protected by a society.

What can a city expect or demand of migrants as social citizens? Mindful that the process of social integration usually takes more than one generation, it would not be fair to expect or demand that migrants integrate into a new society on an unrealistic timetable. Most migrants are adults, and opportunities to belong, to contribute, and to be protected should be available to them, as well as to the next generation. Migrants cannot be expected to take actions that could imperil them or their families. For example, while constitutionally protected civil rights in the US extend to undocumented immigrants, using these rights (by identifying themselves publicly, for example) can bring immigrants to the attention of federal authorities, a reality or fear that might constrain their ability to participate in civic life.

In his novel Exit West (2017), Mohsin Hamid offers a near-future fictional version of a political philosopher’s ‘earned amnesty’ proposal. Under the ‘time tax’, newer migrants to London pay a decreasing ‘portion of income and toil’ toward social welfare programmes for longstanding residents, and have sweat-equity opportunities to achieve home ownership by working on infrastructure construction projects (the ‘London Halo’). Today, the nonfictional citizens of Berlin are debating how to curb escalating rents so that the city remains open to lower-wage residents, including internal and transnational migrants. A robust concept of social citizenship that includes migrants who have begun the process of belonging to a city, and those who should be acknowledged as already belonging, will provide a necessary framework for understanding contemporary urban life in destination cities.Aeon counter – do not remove

Nancy Berlinger

This article was originally published at Aeon and has been republished under Creative Commons.

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Visa Holders Who Violate #90DayRule May be Presumed to be of “Material Misrepresentation”

Posted: 4:44 am ET
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On September 26, the State Department updated its FAM guidance on INELIGIBILITY BASED ON ILLEGAL ENTRY, MISREPRESENTATION AND OTHER IMMIGRATION VIOLATIONS – INA 212(A)(6)

INA 212(a)(6)(C)(i) provides an alien who seeks to procure, or has sought to procure, or has procured a visa, other documentation, or entry into the United States or other benefit provided under the INA by fraud or willfully misrepresenting a material fact at any time shall be ineligible for a visa.

9 FAM 302.9-4(B)(2) notes that “most cases of inadmissibility under this section will involve “material misrepresentations” rather than “fraud” since actual proof of an alien’s intent to deceive may be hard to come by.  As a result, the Notes in this section will deal principally with the interpretation of “material misrepresentation.”

The guidance tells consular adjudicators that “To conclude there was a misrepresentation, you must have direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion but less than a preponderance of the evidence.”

On September 16, 2017 the State Department sent 17 STATE 95090 on the Change to INA 212(a)(6)(C)(i) and Introduction of 90 Day Rule

1. SUMMARY: This cable advises posts on the application of INA section 212(a)(6)(C)(i) as it pertains to revised guidance at 9 FAM 302.9-4(B)(3)(g-h) regarding the 90 day rule, formerly known as the “30/60 day rule.” Interagency working groups agreed to a change in policy and expanded the 30/60 day timeframe to 90 days for aliens who enter the United States and engage in activity inconsistent with their nonimmigrant status before procuring a change or adjustment of status. END SUMMARY.

The 90 day rule

2. The following revised guidance replaces the 30/60 day rule and applies to all adjudications that occur after September 1. The guidance should not be applied retroactively. As detailed in the revisions to 9 FAM 302.9-4(B)(3)(g-h), aliens who violate or engage in conduct inconsistent with his or her nonimmigrant status within 90 days of entry into the United States by:

1) engaging in unauthorized employment;
2) enrolling in a course of unauthorized academic study;
3) marrying a U.S. citizen or lawful permanent resident and taking up residence in the United States while in a nonimmigrant visa classification that prohibits immigrant intent; or
4) undertaking any other activity for which a change of status or adjustment of status would be required prior to obtaining such change or adjustment, may be presumed to have made a material misrepresentation.

You must give the alien the opportunity to present evidence to rebut the presumption that he or she made a willful misrepresentation on prior visa applications or in their applications for admission to the United States before you can find the applicant ineligible under 212(a)(6)(C)(i). If the applicant is unable to overcome the presumption that he or she engaged in a willful misrepresentation, post must request an Advisory Opinion (AO) from the Visa Office of Advisory Opinions (CA/VO/L/A) per 9 FAM 302.9-4(B)(3)(h)(2)(b).

3. If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status after 90 days of entry into the United States, there generally is no presumption of willful misrepresentation. However, if facts in the case give you a reason to believe that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you must request an AO from CA/VO/L/A.

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Appropriations Committee Releases FY2018 DHS Bill, Includes $1.6 Billion For Border Wall

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Posted: 2:22 am ET
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On July 11, the House Appropriations Committee released its proposed fiscal year 2018 Department of Homeland Security (DHS) Appropriations bill, which will be considered by the subcommittee on July 12. The legislation directs $44.3 billion in discretionary funding for DHS, an increase of $1.9 billion above the fiscal year 2017 enacted level. The bill includes $1.6 billion for physical barrier construction along the U.S. southern border. It also includes $6.8 billion – the same as the President’s request – for disaster relief and emergency response activities through the Federal Emergency Management Agency (FEMA), according to the Committee’s statement.

The bill highlights include the following:

Customs and Border Protection (CBP)

The bill contains $13.8 billion in discretionary appropriations for CBP – an increase of $1.6 billion above the fiscal year 2017 enacted level. These resources ensure our borders are protected by putting boots on the ground, improving infrastructure and technology, and helping to stem the flow of illegal goods both into and out of the country. Within this total, the legislation includes:

  • $1.6 billion for physical barrier construction along the Southern border – including bollards and levee improvements – meeting the full White House request;
  • $100 million to hire 500 new Border Patrol agents;
  • $131 million for new border technology;
  • $106 million for new aircraft and sensors; and
  • $109 million for new, non-intrusive inspection equipment.

Immigration and Customs Enforcement (ICE) – The bill provides $7 billion for ICE –$619.7 million above the fiscal year 2017 enacted level. Within this total, the legislation includes:

  • $185.6 million to hire 1,000 additional law enforcement officers and 606 support staff;
  • $2 billion – an increase of $30 million above the requested level – for domestic and international investigations programs, including efforts to combat human trafficking, child exploitation, cybercrime, visa screening, and drug smuggling;
  • $4.4 billion for detention and removal programs, including:
  • 44,000 detention beds, an increase 4,676 beds over fiscal year 2017;
  • 129 Fugitive Operations teams; and
  • Criminal Alien Program operations, including the addition of 26 new communities to the 287(g) program, which partners with local law enforcement to process, arrest, and book illegal immigrants into state or local detention facilities.

Transportation Security Administration (TSA)

The bill includes $7.2 billion for TSA – a decrease of $159.8 million below the fiscal year 2017 enacted level. This includes full funding ($3.2 billion) for Transportation Security Officers, privatized screening operations, and passenger and baggage screening equipment, in order to speed processing and wait times for travelers and cargo. This also includes $151.8 million to hire, train, and deploy 1,047 canine teams to further expedite processing time.

Cybersecurity and Protection of Communications

To combat increasingly dangerous and numerous cyber-attacks, the bill includes a total of $1.8 billion for the National Protection and Programs Directorate to enhance critical infrastructure and prevent hacking.

Within this amount, $1.37 billion is provided to help secure civilian (.gov) networks, detect and prevent cyber-attacks and foreign espionage, and enhance and modernize emergency communications. Funds are also included to enhance emergency communications capabilities and to continue the modernization of the Biometric Identification System.

Citizenship and Immigration Services (CIS)

The legislation does not fund most CIS activities, as these are funded outside the appropriations process through the collection of fees However, the bill does contain $131 million for E-Verify, which is funded within CIS and helps companies ensure their employees may legally work in the United States.

SEC. 107 of the bill requires the following:

(a) Not later than 30 days after the date  of enactment of this Act, the Secretary of Homeland Security shall submit to the Committees on Appropriations of the Senate and the House of Representatives, the Committees on the Judiciary of the Senate and the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on Homeland Security of the House of Representatives, a report for fiscal year 2017 on visa overstay data by country as required by section 1376 of title 8, United States Code: Provided, That the report on visa overstay data shall also include—

(1) overstays from all nonimmigrant visa categories under the immigration laws, delineated by each of the classes and sub-classes of such categories; and 

(2) numbers as well as rates of overstays for each class and sub-class of such nonimmigrant categories on a per country basis.

(b) The Secretary of Homeland Security shall publish on the Department’s website the metrics developed to measure the effectiveness of security between the ports of entry, including the methodology and data supporting the resulting measures. 

For the complete text of the FY 2018 Subcommittee Draft Homeland Security Appropriations bill, see: http://docs.house.gov/meetings/AP/AP15/20170712/106241/BILLS-115HR-SC-AP-FY2018-HSecurity-FY2018HomelandSecurityAppropriationsBill-SubcommitteeDraft.pdf

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