Snapshot: Immigrant Visas Issued at Foreign Service Posts, FY2016-FY2020

 

Via state.gov (full document available here (PDF).

 

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Snapshot: Immigrant and Nonimmigrant Visa Ineligibilities FY2020*

 

Via state.gov, partial stats on IV and NIV ineligibilities by Grounds for Refusal Under the Immigration and Nationality Act) Fiscal Year 2020*
The full document is available here (PDF).

3 Listed total ineligibility findings pursuant to the 2017 E.O. on Immigration are not directly comparable to refusal counts provided in the Department of State’s Quarterly/Monthly Report of Implementation of Presidential Proclamation (P. P.) 9645. Refusal statistics in the Quarterly/Monthly Reports do not include applications subsequently issued, and are reported cumulatively from December 8, 2017, the date of full P. P. 9645 implementation, through the end of the stated reporting period, rather than by fiscal year as in the table above. Counts of monthly new subject applications provided in the Quarterly/Monthly Reports include not only applications found ineligible on P. P. 9645-grounds, as above, but also those issued pursuant to an exception or waiver or refused on non-P. P. 9645 grounds. President Biden signed PP 10141 on January 20, 2021, ending the travel restrictions under P. P. 9645.

 

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State/OIG Announces Review of the Afghan Special Immigrant Visa (SIV) Program

On December 7, 2021, an un-dated announcement tweeted by @StateOIG indicates that the Office of the Inspector General for the State Department is initiating a review of the Afghan SIV Program:
The Office of Inspector General (OIG), Office of Audits, is initiating a review of the Afghan Special Immigrant Visa (SIV) Program. The primary objectives of the review are to assess and describe (1) the number of SIV applications received and processed and their processing times; (2) the adjustments made to processing SIV applications between 2018 and 2021; (3) the status and resolution of recommendations made by the Department of State Office of Inspector General in its reports Quarterly Reporting on Afghan Special Immigrant Visa Program Needs Improvement (AUD-MERO-20-34, June 2020) and Review of the Afghan Special Immigrant Visa Program (AUD-MERO-20-35, June 2020); (4) the status of SIV recipients; and (5) the totality of OIG reporting on the SIV Program in a capping report.
The review will be conducted at the Bureaus of Consular Affairs; Near Eastern Affairs; Population, Refugees, and Migration; and South and Central Asian Affairs and at selected domestic facilities and overseas posts including the Afghanistan Affairs Unit in Doha, Qatar. The review will include interviews of appropriate officials, an assessment of pertinent documents, and analyses of data.
The announcement also notes that State/OIG “will be coordinating and deconflicting with other members of the inspector general community to ensure efficiency and to leverage interagency resources in performing this important oversight work.”

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US Announces Travel Restrictions For Eight African Countries Over New COVID Variant

 

On November 26, President Biden issued a Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019. The proclamation is effective at 12:01 a.m. eastern standard time on Monday, November 29, 2021. This proclamation notes that this does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 12:01 a.m. eastern standard time on November 29, 2021.
The entry restrictions cover travelers (with certain exceptions) who were physically present within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe during the 14-day period preceding their entry or attempted entry into the United States.
Excerpt:

The national emergency caused by the coronavirus disease 2019 (COVID-19) outbreak in the United States continues to pose a grave threat to our health and security. As of November 26, 2021, the United States has experienced more than 47 million confirmed COVID-19 cases and more than 773,000 COVID-19 deaths. It is the policy of my Administration to implement science-based public health measures, across all areas of the Federal Government, to act swiftly and aggressively to prevent further spread of the disease.

On November 24, 2021, the Republic of South Africa informed the World Health Organization (WHO) of a new B.1.1.529 (Omicron) variant of SARS-CoV-2, the virus that causes COVID-19, that was detected in that country. On November 26, 2021, the WHO Technical Advisory Group on SARS-CoV-2 Virus Evolution announced that B.1.1.529 constitutes a variant of concern. While new information is still emerging, the profile of B.1.1.529 includes multiple mutations across the SARS-CoV-2 genome, some of which are concerning. According to the WHO, preliminary evidence suggests an increased risk of reinfection with this variant, as compared to other variants of concern. Further, the WHO reports that the number of cases of this variant appears to be increasing in almost all provinces in the Republic of South Africa. Based on these developments, and in light of the extensive cross-border transit and proximity in Southern Africa, the detection of B.1.1.529 cases in some Southern African countries, and the lack of widespread genomic sequencing in Southern Africa, the United States Government, including the Centers for Disease Control and Prevention (CDC), within the Department of Health and Human Services, has reexamined its policies on international travel and concluded that further measures are required to protect the public health from travelers entering the United States from the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe. In addition to these travel restrictions, the CDC shall implement other mitigation measures for travelers departing from the countries listed above and destined for the United States, as needed.

Given the recommendation of the CDC, working in close coordination with the Department of Homeland Security, described above, I have determined that it is in the interests of the United States to take action to suspend and restrict the entry into the United States, as immigrants and nonimmigrants, of noncitizens of the United States (“noncitizens”) who were physically present within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe during the 14-day period preceding their entry or attempted entry into the United States.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act, 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that the unrestricted entry into the United States of persons described in section 1 of this proclamation would, except as provided for in section 2 of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.

Read in full here.

 

Snapshot: PP9645 and PP9983 – Affected Nationalities, Nonimmigrant and Immigrant Visas

 

On January 20, 2021, President Biden signed a Presidential Proclamation (P.P. 10141) titled “Ending Discriminatory Bans on Entry to the United States.”  This proclamation ended the travel restrictions under Presidential Proclamations 9645 and 9983 under Trump and directed the State Department to pursue the processing of visa applications for individuals from affected countries consistent with applicable law and visa processing procedures.  Guidance on State’s implementation of P.P. 10141 can be found here. Pursuant to President Biden’s Proclamation, the visa restrictions under Proclamations 9645 and 9983 are no longer applicable.
Below is a CA report on the affected nationalities for both nonimmigrant and immigrant visas from December 8, 2017 t0 January 20, 2021. The full report is available here.

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USG to End Travel Restrictions on 11/8/21 EST, Announces Global Vaccination Requirement

 

A week from today, the United States will officially end the travel restrictions imposed under four Presidential Proclamations. In its place, the U.S. Government will require a global vaccination requirement for all adult foreign national travelers coming to the United States. The State/CA announcement notes that “does not necessarily mean that your local U.S. embassy or consulate is able to immediately schedule all affected applicants for visa interviews.”
Via travel.state.gov:
On October 25, President Biden announced a Presidential Proclamation titled “A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic.”  This proclamation, which takes effect at 12:01 am Eastern Standard Time on November 8, 2021, will end the travel restrictions under Presidential Proclamations (P.P.) 9984, 9992, 10143, and 10199 as they relate to the suspension of entry into the United States of persons physically present in Brazil, China, India, Iran, Ireland, the Schengen Area, South Africa, and the United Kingdom.  In place of these restrictions, the President announced a global vaccination requirement for all adult foreign national travelers.   This proclamation applies to persons aboard a flight scheduled to arrive in the United States that departs after 12:01 a.m. eastern standard time on November 8, 2021.  More information about this global vaccination requirement, including details on exceptions and waivers due to humanitarian concerns, is available at Non-U.S. citizen, Non-U.S. immigrants: Air Travel to the United States | CDC.
Pursuant to President Biden’s proclamation, as of November 8, the Department can process visa applications for individuals physically present in the affected countries.
Please note that the rescission of these P.P.’s does not necessarily mean that your local U.S. embassy or consulate is able to immediately schedule all affected applicants for visa interviews. Please see the embassy/consulate website for information on what services they are offering at this time and instructions on how to apply for a nonimmigrant visa.

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USDOJ: FL Executives Plead Guilty to Large-Scale Visa Fraud Employment Scheme

 

Via USDOJ:

Two Florida business executives pleaded guilty today in the Southern District of Georgia to charges related to their roles in a scheme to recruit and hire foreign nationals who were not authorized to work in the United States to fill temporary housekeeping and food service positions and commit various other criminal immigration offenses for profit.

According to court documents, Educational World Inc. (Ed World), a visa processing company based in North Point; and Larisa Khariton, 73, and Jon Clark, 71, also of North Point, were indicted by a federal grand jury in Georgia on April 8. The 36-count indictment also contained allegations against Regal Hospitality Solutions LLC (RHS), a Louisiana-based staffing company, and seven current and former RHS employees. Each defendant was charged with one count of conspiracy to defraud and commit offenses against the United States, including encouraging and inducing an alien to reside in the United States, as well as alien harboring, alien transporting, and visa fraud. In addition, the RHS defendants were charged with wire-fraud related offenses.

Khariton and Clark pleaded guilty today to conspiracy to defraud and commit offenses against the United States.

According to the indictment and other court documents, the individual defendants enriched themselves by participating in a scheme to recruit and hire noncitizen laborers without authorization to work for RHS. RHS provided hospitality-related businesses with laborers to work in housekeeping, retail, and food service positions, using noncitizens who were unauthorized to work in the United States to fill the positions. In some cases, the RHS defendants arranged for and provided housing and transportation to the workers.

The defendants and other co-conspirators also encouraged and induced noncitizen laborers on expiring and expired J-1 exchange visitor visas to obtain B-2 tourist visas and to work in the United States for RHS, knowing that employing such laborers on B-2 visas was illegal. According to admissions made in connection with their guilty pleas, Khariton and Clark prepared and submitted applications for B-2 visas on behalf of the workers after charging noncitizen laborers approximately $650 per application. The application contained false and misleading statements indicating the noncitizens intended to obtain the B-2 visa for the purpose of engaging in tourism. In fact, Khariton and Clark knew that those noncitizens were already present in and intended to stay in the United States for employment, not tourism.

The indictment also alleges that Khariton and Clark submitted petitions for H-2B temporary work visas on behalf of defendant RHS that contained false and misleading information about the location where noncitizen laborers allegedly were to be employed. In connection with their guilty pleas, Khariton and Clark admitted that they engaged in deceitful and dishonest conduct to impede and obstruct the functioning of, among other things, the H-2 non-immigrant visa program. Khariton and Clark also admitted that they were paid a commission by RHS for noncitizens Ed World recruited to work for RHS, including those who were not authorized to work for RHS in the United States.

Khariton and Clark will be sentenced at a later date. Khariton and Clark face a statutory maximum penalty of five years in prison; A federal district court judge will determine the sentences after considering the U.S. Sentencing Guidelines and other statutory factors. Charges remain pending against defendant RHS and the individual RHS defendants who are considered innocent unless and until found guilty

The U.S. Department of State Office of Inspector General is investigating the case with assistance provided by U.S. Immigration and Customs Enforcement’s Homeland Security Investigations and U.S. Citizenship and Immigration Services.

Trial Attorneys Frank Rangoussis and John-Alex Romano of the Criminal Division’s Human Rights and Special Prosecutions Section and Assistant U.S. Attorney Steven Lee of the Southern District of Georgia are prosecuting the case.

 

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Doctrine of Consular Non-Reviewability Defense on Visa Processing Stopage Fails

 

 

There is a separate case not included in the recent court cases summary by the State Department. See below what the  Court says about visa processing or the absence of it, and the consular non-reviewability doctrine (see PHILIP KINSLEY, et al., v. BLINKEN et al.  Civil Action No. 21-962):
“While the Court concurs with Defendants that some Plaintiffs lack standing or have claims that are now moot, it also concludes that, as to the nine remaining Plaintiffs, their claims are justiciable, and State acted improperly in suspending visa issuance based on the Proclamations.”
[…]
Defendants believe that “Plaintiffs cannot challenge the actions of the Secretary of State to implement a proclamation issued by the President under 8 U.S.C. § 1182(f).” Id. at 20. They argue that the Supreme Court has “long recognized the power to expel or exclude aliens as a  fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal quotation marks and citations omitted); see also Def. MTD/MSJ at 20. In particular, they suggest that the “principles underlying [the doctrine of consular non-reviewability] similarly preclude review of the Secretary’s decision to implement a proclamation issued under 8 U.S.C. § 1182(f) because the President suspended entry, and thus determined that a class of noncitizens were ineligible for a visa.” Def. MTD/MSJ at 21.
This is familiar territory. This Court and others in this district have already rejected similar arguments rooted in the doctrine of consular non-reviewability because that doctrine only applies once a decision has been reached on a specific application. See Milligan v. Pompeo, 502 
F. Supp. 3d 302, 317 (D.D.C. 2020) (“[T]he doctrine [of consular non-reviewability] however, is not triggered until a consular officer has made a decision with respect to a particular visa application.”) (internal citation and quotation marks omitted); see also Tate v. Pompeo, 513 F. 
Supp. 3d 132, 142 (D.D.C. 2021), dismissed sub nom. Tate v. Blinken, No. 21-5068, 2021 WL 3713559 (D.C. Cir. July 22, 2021) (“The D.C. Circuit has held that the consular non-reviewability does not apply where plaintiffs ‘do not challenge a particular determination in a particular case of matters which Congress has left to executive discretion’ but instead improperly promulgate rules in violation of statute.”) (internal citation omitted); Gomez v. Trump, 485 F. Supp. 3d 145, 176 (D.D.C. 2020), amended in part, 486 F. Supp. 3d 445 (D.D.C. 2020), and amended in part sub nom. Gomez v. Biden, No. 20-1419, 2021 WL 1037866 (D.D.C. Feb. 19, 2021) (“District courts in this jurisdiction consistently have held that when the suit 
challenges inaction, as opposed to a decision taken within the consul’s discretion, there is jurisdiction.”) (internal citations and quotation marks omitted).
Given this repeated determination, there is no reason that the “principles underlying [the consular non-reviewability] doctrine” would preclude the Court from reviewing implementation of policy relating to the Proclamations. Nor does Plaintiffs’ challenge risk “diminish[ing] the 
President’s ability to exercise his broad authority under 8 U.S.C. § 1182(f) to exclude non-citizens.” Def. MTD/MSJ at 22. Even a successful suit would affect only whether visa applications must be adjudicated, not whether visas should actually be issued or individuals allowed to enter once they have received a visa. The Court thus finds the Department’s no-visa policy reviewable.

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Court Orders @StateDept to “Reserve” Diversity Visas From FY20/FY21, State/CA Guidance to Follow

 

Via State/CA:
The Department of State is aware of the various court orders regarding the reservation of DV-2020 and DV-2021 diversity visas, which are briefly summarized below. We will publish public guidance on this website regarding the Department’s plan for complying with these orders as it becomes available.
On August 17, 2021, the U.S. District Court for the District of Columbia in Gomez v. Biden ordered the Department to “process DV-2020 applications in random order until all 9,905 diversity visas have been granted.” However as of September 30, 2021, the Court had not issued a final order establishing a time frame for processing.
On September 27, 2021, the U.S. District Court for the District of Columbia in Rai v. Biden ordered the Department of State to “reserve 966 diversity visa numbers of applicants awaiting adjudication at the twenty-seven embassies and posts previously subject to Proclamations 9984 and 10143 and Defendants’ regional No-Visa Policy.”
On September 30, 2021, the U.S. District Court for the District of Columbia in the Goodluck v. Biden-related matters ordered the Department of State to “reserve 6,914 diversity visas for adjudication pending final judgment in the Goodluck-related matters.”
On September 30, 2021, the U.S. District Court for the District of Columbia in the Goh v. Biden ordered the Department of State to “to make 481 diversity visas available for adjudication” and to “adjudicate those diversity visas by the close of Fiscal Year 2022.”
In the GOH decision, the Court writes:
“The court (once again) appreciates the efforts of State Department officials and employees  who have processed diversity visas to comply with the court’s injunction, but those efforts “do not obviate the need for additional relief.” Id. Unless additional relief is granted, the shortfall of visas issued for Fiscal Year 2021 from the historic average will be dramatic. Some of that shortfall is no doubt due to the difficulties caused by the COVID-19 pandemic, but the pandemic is not the primary culprit. That would be the State Department’s complete cessation of adjudicating diversity visa applications for five months and its unlawful deprioritizing of those applications when adjudications resumed.”
Below are the related court orders:
Civil Action No. 2020-1419 GOMEZ et al v. TRUMP et al
Civil Action No. 2021-0863 RAI et al v. BIDEN et al
Civil Action No. 2021-1530 GOODLUCK et al v. BIDEN, JR. et al
Civil Action No. 2021-0999 GOH et al v. U.S. DEPARTMENT OF STATE et al

 

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