Immigration Lawyers Toolbox® Magazine Issue 8 | 2024

IMMIGRATION ® LAWYERS TOOLBOX ISSUE 8 | 2024

MAGAZINE

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UPDATED D3 WAIVER GUIDANCE: HOW THIS HELPS GRADUATES OF U.S. COLLEGES AND UNIVERSITIES RETURNING HERE TO WORK Dan H. Berger, Esq. | page 32

12 MUST-KNOW TIPS FOR IMMIGRATION PRACTITIONERS NAVIGATING THE CBP WEBSITE Joseph D. Tsang, Esq. | page 36

THE CONSULAR OFFICERS TURNED IMMIGRATION ATTORNEYS

WHO ARE HERE TO HELP

page 16

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TABLE OF

CONTENTS 09 Bumps in the Rainbow Road: Unique Immigration Challenges for Same-Sex Couples

by Amie D. Miller, Esq. 24 Alien Smuggling IV Denials for Indian Parents of Former Asylees

by Inderraj Singh, Esq. 28 Navigating Immigration Reform: A Guide for Law Firms 32 Updated D3 Waiver Guidance: How This Helps Graduates Of U.S. Colleges And Universities Returning Here To Work

by Dan H. Berger, Esq. 16

The Consular Officers Turned Immigration Attorneys Who Are Here to Help Visa stamping insights, Trump Administration impacts, and post-Foreign Service life with Mandy and Travis Feuerbacher.

36 12 Must-Know Tips for Immigration Practitioners Navigating the CBP Website

by Joseph Tsang, Esq.

Publisher’s Note Dear Toolboxer, As immigration practitioners, we navigate a constantly evolving field that requires vigilance and adaptability to best serve our clients. With shifting policies, emerging trends, and an ever-changing regulatory landscape, our role demands not only knowledge but also foresight. This edition of the magazine explores critical developments and practical insights that every immigration lawyer should keep in mind during this pivotal time for our profession.

I am especially proud of this issue, which includes contributions from former Consular Officers and provides tools and strategies to navigate the complexities of the unique challenges ahead. From insider notes to emerging issues impacting specific nationalities and communities, our contributors dive deep into the nuances of these changes. Together, we aim to cultivate a community of informed, proactive practitioners ready to lead in this transformative era.

John Q. Khosravi, Esq. President of the Immigration Lawyers Toolbox®

CONTRIBUTORS AND STAFF

If you would like to be considered for submitting an article please contact: Info@ImmigrationLawyersToolbox.com

PRESIDENT & CHIEF EDITOR

CONTRIBUTING AUTHORS

JOHN Q. KHOSRAVI, ESQ.

AMIE MILLER, ESQ. JOSEPH D. TSANG, ESQ. DAN H. BERGER, ESQ. INDERRAJ SINGH, ESQ.

COVER & LAYOUT

CAELA DELA CRUZ

Disclaimer.

None of the information provided here is intended as individual legal guidance. The laws change frequently and some of the information may become outdated.

Please consult with an attorney in private to discuss an individual case.

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Issue No. 8 | 2024

Bumps in the Rainbow Road: Unique Immigration Challenges for Same-Sex Couples Amie Miller, Esq.

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation…”

-Justice Kennedy, Obergefell v. Hodges

Amie Miller, Esq. amiller@immigrate-us.net immigrate-us.net

Since 2013, the U.S. has recognized A Brief History of Marriage Equality marriage equality for immigration and U.S. Immigration purposes, yet LGBT couples still face unique immigration challenges. Obergefell v. Hodges: The Supreme In the United States, marriage Court’s Recognition of Marriage equality is vulnerable to political Equality shifts across administrations, raising new concerns after the 2024 Before 2013, U.S. citizens could not election. Same-sex marriage is file immigrant petitions for their sameunavailable in many countries, and sex spouses or fiancés. The Defense of in some countries, it is a death Marriage Act (DOMA) banned federal sentence. Documenting LGBT recognition of marriages for same-sex relationship bona fides is also couples and let states 1 refuse to challenging when the couple is recognize same-sex marriages unsafe or uncomfortable disclosing performed in other states. In 2013, the their relationship.

United States Supreme Court struck down section 3 of DOMA and Even seasoned attorneys can find compelled federal recognition of these issues difficult to navigate. marriage for same-sex couples,2 Attorneys representing couples in including for immigration purposes. same-sex relationships must be In 2015, the Supreme Court in sensitive to and aware of these Obergefell v. Hodges recognized samedistinct challenges to champion sex couples’ fundamental right to strategies to secure their clients’ marry and required all states to issue marriage licenses and give full faith future together. and credit to marriages for same-sex 3 The Question on Everyone’s Mind: couples solemnized in other states.

Will Same-Sex Marriage-Based Immigration Remain Viable in the The Respect For Marriage Act, 2022: United States After the 2024 Federal Recognition of Marriage Equality Election?

Many in the LGBT community have expressed concerns about the viability of marriage equality in the U.S. after the November 2024 election. These concerns are not unfounded, but any changes would likely not be immediate as the judicial and legislative marriage equality protections currently in effect would take time to reverse.

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Understanding the risk to federal recognition of marriages for same-sex couples if Obergefell is overturned, Congress enacted the Respect For Marriage Act (RFMA) in 2022. 4 The RFMA enshrines federal benefits for married same-sex couples and requires states to give full faith and credit to marriages for same-sex couples from other states. The RFMA enshrines 09

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federal benefits for married same-sex couples and requires states to give full faith and credit to marriages for same-sex couples from other states.

The RFMA stops short of mandating all states to marry same-sex couples, and if Obergefell is overturned, marriage bans for same-sex couples in thirty-three states could become effective. 56 Nothing would prevent new bans in the patchwork of states without them, and couples who cannot easily travel would face logistical and financial hardship if they had to travel far distances to marry. Should all 50 states enact same-sex marriage bans, immigration based on those relationships might no longer be possible.

1 Defense of Marriage Act, Pub. L. 104-199 110 Stat. 2419 (1996).

2 United States v. Windsor, 570 U.S. 744 (2013).

3 Obergefell v. Hodges, 576 U. S. 644 (2015).

4 Respect for Marriage Act, Pub. L. 117-228, 136 Stat.2305 (2022).

5 https://www.lgbtmap.org/news/Marriage-ReportMarch-2022. (see update below) 6 Erin Geiger Smith, Sarah Kessler, & Zoe Merriman, Voters Across the Country Amend Their Constitutions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Nov. 8, 2024), https://statecourtreport.org/our-work/analysisopinion/voters-across-country-amend-theirconstitutions

After the 2024 Election A new administration cannot easily overturn the protections for married same-sex couples secured in Obergefell v. Hodges and the Respect For Marriage Act. The President cannot ban marriages for same-sex couples by Executive Order. The Supreme Court would have to reverse itself, and Congress would have to repeal the RFMA or amend the Constitution. While possible, these scenarios all take time.

Obergefell recognized a constitutional right to marriage equality, which can only be overturned by the Supreme Court or if Congress utilizes a rare procedure to amend the Constitution.7 7 It will take time for a marriage equality case to reach the Supreme Court, and it is uncertain whether it has enough votes to overrule its precedent decision in Obergefell. It is a genuine concern, however, because only two of the Justices who voted in favor of Obergefell – Justice Sotomayor and Justice Kagan – remain on the Court.

10

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The Respect for Marriage Act was visa - in a location that does not enacted with bipartisan support, recognize their marriage. with 39 House Republicans and 12 8 Senate Republicans voting to pass it. 78 www.supremecourt.gov/about/constitutional.aspx Given this broad support in 2022, it www.senate.gov/legislative/LIS/roll_call_votes/vote1 is not a given that Congress would 172/vote_117_2_00357.htm 9 www.archives.gov/federal-register/constitution have the votes to repeal it.

10 Id 11 9 FAM 102.8-1(B). USCIS PM Vol. 12, Pt. G,

A Constitutional Amendment is Ch. 2(A)(1). much trickier and less likely, given For example, Brad (U.S. citizen) and the bipartisan support for marriage Mukasa (Ugandan citizen) fell in love equality. An amendment proposal when they attended a doctoral requires a two-thirds vote of both program in the U.S. They married in Houses of Congress, or, if two-thirds the U.S. before Mukasa returned to of the States request one, by a Uganda. In Uganda, homosexuality is 9 convention. The amendment must punishable by death, and gay marriage then be ratified by three-fourths of is not recognized. Brad petitioned for 10 the State legislatures, or conventions. Mukasa to immigrate to the U.S., and Marriage equality rights are still at risk, but the process needed to revoke them, along with the bipartisan support for marriage equality as recently as 2022, presents challenges that will likely prevent or delay their removal.

Mukasa’s visa interview occurred in Kampala. Because Brad and Mukasa’s marriage was legal in the U.S., it is valid for immigration purposes even though Mukasa’s home country does not recognize their marriage, and the U.S. consulate should issue Mukasa’s visa.

Who is a Spouse? Location, Location, Location.

Virtual Marriages

Federal recognition of marriage equality depends on the marriage location.

The United States Immigration and Citizenship Service (USCIS) and the Department of State (DOS) recognize marriage validity according to the “law of the place of celebration,” with a few 11 exceptions.

Both recognize marriage for same-sex couples when they are valid where celebrated for immigration purposes, even if the couple lives - or is processing their

What would happen if Brad and Mukasa did not marry before Mukasa returned to Uganda and Mukasa could not obtain a new visa to travel to a country that recognizes marriage equality?

This scenario is unfortunately common, as less than 17% of the world’s countries legally recognize same-sex marriage. Most are Western Countries and Australia, New Zealand, Taiwan, and South12 Africa. This creates disproportionate challenges for foreign national fiancés, such as travel logistics, expenses, and

Issue No. 8 | 2024

visas to same-sex marriage-friendly countries.

In this situation, U.S. citizens can file a fiancé visa petition for their fiancé, and if the visa is issued, marry within 90 days of arrival in the U.S. and then file for permanent residence in the U.S. While this is a good choice for same-sex couples unable to marry otherwise, it entails additional, lengthy immigration steps and expenses they would not incur if they could marry in their home country.

While photos of the meeting are also helpful, USCIS explicitly requests couples not to submit “graphic photos of . . . intimate relations as evidence of a relationship or marital bona fides.”

Notably, the instructions also ask couples not to submit “graphic photos of . . . intimate relations as evidence of a relationship or marital bona fides.”

Notably, the instructions also ask couples not to submit “graphic photos of . . . intimate relations as evidence of a relationship or marital

13

detailing their bona fide relationship and the reasons they cannot disclose their relationship, supported by country condition.

In these situations, counsel must explain to USCIS why these documents are not readily available.

This can be accomplished through declarations from the couple detailing their bona fide relationship and the reasons they cannot disclose their relationship, supported by country condition documentation, expert statements, and other proof of the challenges to obtaining traditional documents.

Counsel should also ensure the immigration officer is aware of the couple’s need for discretion so the officer does not “out” them by contacting family members, neighbors, or anyone else about their relationship.

Utah to the Rescue!

In an interesting twist, Utah, a state that both constitutionally and statutorily bans same-sex marriage, is the most friendly state to same-sex foreign national fiancés. Utah is the only U.S. state that marries couples even if they and their officiant are each in separate locations. Virtual marriages, or proxy marriages, are recognized for U.S. immigration purposes, but only if the couple consummates the marriage after the 13 wedding.

Special Documentation Requirement for Virtual/Proxy Marriages So now that Brad (in California) and Mukasa (in Uganda) have married virtually in Utah, how do they prove they consummated their marriage?

As a practical matter, they must prove they met in person after their virtual marriage. Brad can travel to Uganda, or they could both travel to another country together. Travel itineraries, flight or train tickets, passport stamps, and bank or credit card charges showing their shared location after the wedding date can all prove they met in person after their marriage.

12 Same Sex Marriages Around the World, Pew Research Center, June 9, 2023 https://www.pewresearch.org/religion/fact-sheet/gaymarriage-around-the-world/ 13 INA §101(a)(35), USPM Vol.12, Pt. G, Ch. 2 (A)(1), 9 FAM 102.8-1(D)(1)

bona fides.” 14 Notably, the instructions also ask couples not to submit “toys,” “action figures,” or “biological or genetic samples” to prove their relationship (one wonders how often USCIS received these items!).

How do Same-Sex Couples from Hostile Countries or Cultures Prove their Genuine Relationship?

Both spouses and fiancés must document their bona fide relationship in the immigration process, presenting challenges to couples who are not “out.” Let’s say Claire (U.S.) and Kamilah (Brunei) have had a loving, committed relationship for over three years.

Still, for safety and cultural reasons, most of their family and friends do not know about their relationship.

Claire and “coming out.” Claire and Kamilah may not have shared travel itineraries or photos in different locations for the same reason. The few family members and friends who know about their relationship may also be reluctant for their own safety to submit supportive affidavits.

In these situations, counsel must explain to USCIS why these documents are not readily available.

This can be accomplished through declarations from the couple

Previous Relationship Wrinkles: Opposite-Sex Marriages and Undissolved Domestic Relationships What if Kamilah, for cultural or other reasons, was previously married to a man? There are many possible reasons for this scenario. Sometimes, familial and cultural pressure compelled the marriage; she may not have been out to herself at the time, or she may be bisexual. Whichever reasons apply, it is essential first to understand and then to explain the previous relationship to U.S. Immigration to avoid the presumption of fraud.

And what if Claire was in a past domestic partnership with another woman and did not realize she needed to legally dissolve it before marrying?

Domestic-partner dissolution laws vary in each state, and practitioners should screen for past domestic 11

Issue No. 8 | 2024

partnerships and civil unions and the state laws regarding dissolution for each. Sometimes, for couples currently in domestic partnerships, remarriage may be required after the prior domestic relationship is legally terminated.

14 Special Instructions, Form I-129f https://www.uscis.gov/i-129f.

When the Consular Visa Interview Poses a Life-and-Death Risk As a citizen of Brunei, Kamilah faces the threat of violence, arrest, jail, and death if her relationship with Claire is exposed. Brunei imposes the death penalty on same-sex relationships, and at least sixty-seven countries 15 criminalize same-sex relationships. types of waivers and court Societal violence is also an issue, even applications based on their in countries where same-sex relationship. relationships are legal.

Best Practices for a Sensitive Applying for a same-sex marriage Approach to Same-Sex Couples visa in Brunei (and other countries hostile to same-sex marriage) would Brad and Mukasa or Claire and be risky for Kamilah. Although the Kamilah may be speaking to a U.S. consulate officer interviewing lawyer for the first time and may be about homophobia, Kamilah would be a U.S. citizen, the concerned especially if they have faced it in the embassies employ local staff, and past.

As their attorney, you want to Brunei citizens also applying for visas create a safe atmosphere, express in the waiting area may overhear the acceptance, and show your consular interview. understanding of the unique Kamilah can request a safer challenges same-sex couples face. consulate to process her visa. To You can do this with gender-neutral transfer her visa application location, language, particularly regarding the Kamilah must contact the consulate gender of their current or previous she wishes to move to, explain why spouses or fiancés. Understand that she is asking for the transfer, and previous opposite-sex marriages do indicate whether she resides in the not indicate the current one is third country she wishes to transfer fraudulent. Respect your clients’ to. The third-country consulate has need for discretion and recognize the discretion to accept or deny the they might not have the same bona request, and she may need to try fide marriage documents other consulates until she finds one to heterosexual couples do. Be ready to 16 accept her application. advocate for them if the immigration officer is insensitive or operating on A Brief Word on Other Marriage- incorrect assumptions.

Based Immigration Options 15 #OUTLAWED “THE LOVE THAT DARE NOT

In addition to fiancé and spouse- SPEAK ITS NAME” 2022 based immigration, there are several https://features.hrw.org/features/features/lgbt_laws/? gclid=Cj0KCQjwother options for same-sex couples. pyqBhDmARIsAKd9XIOF1C_WNnToNpoYH7E7B_i_f Same-sex spouses can be included in ICcvQ8Yl6T_h5vXORdTMgDHEWkijCcaAp4REALw_ wcB their spouse’s asylum applications, 16 https://travel.state.gov/content/travel/en/usaccompany their spouse on visas/immigrate/national-visa-center/immigrant-visasprocessing-generalfaqs. nonimmigrant visas - such as work, study, athlete, and entertainer visas, Conclusion be included in U (crime victim) visa The 2024 election highlights the risks applications, and qualify for certain 12

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and uncertainty same-sex couples face with potentially shifting legal recognition of their marriage. Samesex couples also face logistical challenges when marriage is not available, difficulty obtaining bona fide marriage documentation, and dangerous country conditions that can make a visa interview perilous. A sensitive and informed approach with strategies tailored to your same-sex couple clients is more essential now than ever to pave the way toward a “happily ever after” together in the U.S. *Brad, Mukasa, Claire, and Kamilah are fictional. No client confidences were harmed in writing this article.

ABOUT THE AUTHOR With a niche practice in LGBTQ+ immigration, Amie Miller represents immigrants worldwide with U.S. family immigration, citizenship, asylum, waivers, and other visas since 1999. Amie is a Certified Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization. Amie is an established authority in the field who has written articles on immigration topics for esteemed publications, including the Daily Journal. The media seek her expertise, and she has been quoted in newspapers and featured in television interviews. With over 26 years of dedicated practice in immigration law in San Francisco, she is passionate about advocating for her clients through their unique stories.

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The Consular Officers Turned Immigration Attorneys

Who Are Here to Help This month, I sat down with Mandy and Travis Feuerbacher, two former Consular Officers turned immigration attorneys who have focused their legal practice on helping attorneys and foreign nationals with the opaque visa stamping process. As former U.S. diplomats who worked for the U.S. Department of State, Mandy, and Travis have made decisions on more than 100,000 visa applications, and they are no strangers to the short but incredibly highstakes interview that can make or break a foreign national’s visa journey.

Issue No. 8 | 2024

I spoke with Mandy and Travis about their thoughts on the incoming Trump Administration and the anticipated impact on U.S. visa processing, what life is like postForeign Service, and their current endeavors.

John Khosravi: It’s so great to have the chance to talk about your careers as former Consular Officers and your work now as immigration attorneys.

Where have you served, and what kind of work did you do?

Travis Feuerbacher: My first assignment as a Foreign Service Officer (FSO) was to the U.S. Embassy in Beijing, China, where I served as a Consular Officer. During my first year in Beijing, I conducted over 30,000 visa interviews, speaking with applicants from all over the world seeking virtually every type of non-immigrant visa.

I also participated in negotiations with the Chinese Foreign Ministry, which resulted in the extension of the validity of Chinese and U.S. tourist visas from one to 10 years.

During most of my second year, I worked directly for the U.S. Ambassador, Gary Locke, as his Staff Assistant.

It was my responsibility to manage and prioritize requests for meetings, speaking engagements, and appearances to ensure that he advanced the United States’ key priorities in China to the greatest extent possible. It’s probably that year that I find most interesting and rewarding as I look back on my career at State – whether it was eating a Thanksgiving meal with Jackie Chan and Yao Ming, drafting a speech for Secretary of State Hillary Clinton, or watching Xi Jingping’s first inauguration as China’s President during an intimate meeting with the Governor of China’s Henan Province.

After returning to Washington, DC, to improve my Spanish, Mandy and I departed for Matamoros, Mexico, where I would serve as the Consular Section’s Fraud Prevention Manager and later the Chief of the American Citizen Services Section.

As the Fraud Prevention Manager, I led a team charged with investigating possible visa and passport fraud. It was during this time that we uncovered a large-scale network of Texan midwives who issued fraudulent birth certificates to Mexican-born babies so they could obtain U.S. Passports. A summary of my investigations would eventually help Embassies and Consulates around the world combat this alarming trend, and my investigative efforts even led me to be qualified as an expert witness in a federal passport trial.

Mandy Feuerbacher: I also did my first Consular tour at the U.S. Embassy in Beijing, China, but the circumstances were a bit more unusual. I was Travis's “trailing spouse” since he was a career Foreign Service Officer. At the time, the Embassy in Beijing was extremely busy (as they always are!), and they needed all the help they could get.

Since I was an “eligible family member” (also known as EFM in the Foreign Service) with a security clearance and I had the requisite Mandarin Chinese language skills (my native language), I took the entry-level consular training course, which gave me the Consular Commission to serve as a Vice Consul and entry-level Consular Officer at Embassy Beijing. So essentially, I was a spousal Consular Officer but my job was exactly the same as Travis’. During my first tour, in addition to the 100+ visa

interviews I conducted each day, I also became the Revocation Officer for the H and L visa petition-based portfolio and drafted all the revocation memos for H and L visa denials. I found the work challenging but fascinating, so I eventually flew back to DC to take the Foreign Service exam. I passed the exam and officially became a career Foreign Service Officer in my own right, and Travis and I were assigned to Matamoros, Mexico, for our second tours. My third and final tour was in Hong Kong, where I served as the Acting Immigrant Visa Chief for a lengthy period and also worked in the Nonimmigrant Visa and the American Citizen Services Units.

John: I think every immigration attorney wants to know what is going to happen once Trump takes office in 2025 and its impact on visa processing. What do you two think?

Mandy: Well John, even though we no longer work for the U.S. Government, I think it’s safe to say that a new Trump term will make visa processing much more difficult. In fact, I was working as a Consular Officer during the previous Trump administration, and I remember how low morale was in the State Department. Consular Officers felt the burden of new processes that made approving visas more difficult, from the “Muslim Ban,” which discriminated against people from Muslim-majority countries, to Presidential Proclamation 10043 for denying visas to Chinese students who attended 17

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certain Chinese universities and extreme vetting. Trump has already shown us what he can do with his previous term, and it seems, based on the speed at which he is moving this time, that he will try to hit the ground running and enact new restrictive policies in the U.S. visa and immigration process.

Travis: Mandy’s right. Nobody knows for sure how visa processing will be affected, but the signs thus far aren’t great. Even minor changes to operating budgets or personnel could have dramatic ramifications on visa processing times or even how long applicants have to wait to schedule their interview. For now, the best advice we can give is to apply as early as possible and plan for longerthan-usual delays.

John: Given the incoming administration, is there anything you would recommend for immigration attorneys and their foreign national clients?

down to the officers making decisions at the visa window. And we should also expect many drastic executive orders, which Consular Officers have to figure out how to implement. It will be messy.

Travis: It’s always best to treat Consular Officers as partners and not as adversaries. Assuming various processes are made more difficult under the new administration, as Mandy mentioned, this practice will become even more important.

Consider the possible hurdles you or your client might need to overcome before they arrive in the United States, and consider how you might help the Consular officer work towards a visa approval.

John: Wow. Well, let’s talk about something a bit more lighthearted for a moment – what made you two decide to leave the Foreign Service and start practicing immigration law Mandy: We’re not alone in thinking on your own? this, but where possible, I think attorneys and clients should think about fast-tracking petition filings Travis: I actually left the State and the scheduling of visa interviews, Department before Mandy did, but ideally by January 20, before Trump only after great consideration. I takes office. Consular Officers don’t loved my career with State, and I switch posts with the transition to a doubt anything in the future will ever new Administration, and in my However, as our experience, they will not immediately compare. start making the visa process more assignment in Mexico was coming to difficult. However, there has already an end, we found out that Mandy’s been a trend of Consular Officers next tour would be in Hong Kong. denying more F-1 student visas over As there were, unfortunately, no the past several years (even during President Biden’s tenure), and under open positions that even remotely fit Trump, that trend is likely to my timeline, I was told that my next continue. Whether Consular Officers assignment would likely either be to like to admit it or not, the White Manila or New Delhi. Mandy and I House’s negative stance on U.S. ultimately decided that we didn’t visas and immigration does trickle 18

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want to face multiple years of separation, so we decided to move back to California to open an immigration practice.

As we were making plans to open our law practice, I was offered a new role in Apple’s Hong Kong office, so Mandy decided to continue her career with State while I returned to the private sector. I ultimately spent close to eight years with Apple before I finally joined Mandy in the immigration firm she created, and I couldn’t be happier!

Mandy: When I was working at the U.S. Consulate in Hong Kong, Travis and I found out that we were pregnant with twins. We went back to California to deliver them, and while we were there, realized how important it was to have our families and support networks nearby. It was a really tough decision, but ultimately, we decided we wanted to give our kids more stability, and it was the best decision for our family. I do sometimes still miss my State Department career and working alongside some of my dearest friends that I made in the Foreign Service.

But these days, I can’t imagine doing anything other than being an immigration attorney. I really love helping foreign nationals and immigration attorneys with my knowledge from my time as a Consular Officer. It’s been amazing to make such an impact on the lives of foreign nationals.

John: What was it like to go from being a Consular Officer to an immigration attorney?

Mandy: For me, the transition was full of surprises. I remember when I went to my first AILA conference in June 2019, and I had been invited to the APAC chapter meeting. Nobody knew I had worked as a Consular Officer, and I sat at a table listening to all the attorneys gripe about Consular Officers and the mistakes they make, and I was shocked. I never realized there existed a group of people (i.e. immigration attorneys) who cared so much about the decisions of Consular Officers. As a Consular Officer, you’re very protected from the backlash on

Issue No. 8 | 2024

your decisions by the doctrine of Consular Non-Reviewability. When a Consular Officer makes a decision on their case, not even their managers can overturn the decision. Even though Consular colleagues are at the bottom of the totem pole when it comes to importance in the Foreign Service, they wield enormous power when it comes to individual cases. My consular colleagues and I used to wonder what happened to visa applicants who were denied visas (perhaps assuming they just gave up trying to come to the United States).

Once I became an immigration attorney, I realized that if a Consular Officer made a 30-second decision to deny someone with no substantive explanation, of course, that person would be confused and would want to try again. It was another full-circle experience for me to help clients on this side of the process.

Travis: For me, the process was surprisingly natural. As Mandy alluded to, Consular Officers rarely even think about individual visa applicants. This is not because they’re callous or robotic but simply because their workload is enormous. In Beijing, I routinely interviewed over 150, and sometimes even more than 200 applicants in a single day. At each interview, I had precious little time to evaluate an applicant’s qualifications and reach a decision, so I lacked the luxury of further contemplation.

Immigration law enables me that exact luxury that I wished I had when I was interviewing applicants. I can now spend as much time as I need to fully understand an applicant and their qualifications, and I relish the opportunity to strategically help applicants maximize their chance of success as they go in front of my former colleagues.

John: What are some things you wished immigration attorneys knew about Consular Officers?

Mandy: One thing that I realized once I became an immigration attorney is that knowledge of the culture of Consular Officers is extremely important in being successful in the

interview process. We’re really entering an arena that is less practice of law, and more Consular Officer psychology. For example, when I first started answering questions from attorneys about their cases, I thought my answers were so obvious, from how Consular Officers handled visa revocations to why a student was denied his/ her visa. But I soon realized, to an immigration attorney who’s never worked in a Consular section, the answers are not so obvious. The only reason I knew those answers was because I had spent 7 years working inside different Consular sections, and I understood the culture of how Consular Officers think through issues and how they make decisions. Administrations may come and go, but the culture of Consular Officers hasn’t really changed for a very long time. So for my immigration attorney friends who are frustrated by the Visa Officer’s actions, I completely understand, and I feel for you. It’s impossible to read their minds and they don’t explain why they deny a visa. These days, the consular interview is anything but a rubber

stamp process, and foreign nationals need to know what they are up against. Often, a foreign national may only have 30 seconds to 3 minutes to speak to the Consular Officer—are your clients ready?

Travis: It’s often easy to forget that most Consular Officers are not lawyers (Mandy and I were exceptions). Consular Officers are not trained to decipher case law, read through statutes, or consider various visa classifications that might be available to an applicant. Consular Officers are instead trained to consider the application that an applicant submitted and nothing else. And their only source of guidance is the Foreign Affairs Manual (FAM), so immigration lawyers should challenge themselves to similarly only rely upon the FAM when considering how a Consular Officer might adjudicate a particular application.

Beyond the FAM, psychology, as Mandy mentioned, is often more determinative than any law or regulation. This is where Mandy and I can add particular value from our 19

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experiences working in Consular Sections. For example, how might a Consular Officer apply 214(b) in this situation? Would a document help this applicant? What might a Consular Officer consider when deciding whether to request a waiver of a specific ineligibility? Mandy and I often help other immigration lawyers sift through these types of issues, so please reach out to us if we can be of any assistance!

pressures I was under due to everincreasing application numbers to reach my decisions quickly. In many instances, applicants who may qualify for a visa are simply unprepared for their interviews, or perhaps they don’t understand how to communicate effectively with their Consular Officers, and the officer is left with no option but to deny the application.

Applicants must remember that it is their

the longest time, foreign nationals were made to believe this is a rubber stamp process, and they could just passively attend their visa interview, be asked some questions, and get their visas approved. But now, given the sheer volume of people applying for U.S. visas around the world and Consular Officers being pressured to interview fast, the old way isn’t enough anymore.

It’s extremely important for foreign nationals to be properly prepared before their visa interviews so they can be proactive. I don’t necessarily think a longer visa interview is a good thing—you want the foreign national client to be so prepared that after just a couple of questions, the Visa Officer is convinced they are qualified and can approve them on the spot. I always tell my clients that they have to offer specific details and context about their plans and that they should “show, not tell” the officer about their ties to their home country. It’s a different way of speaking and communicating with the Visa Officer that is authentic, truthful, and direct, and many foreign national clients are not used to it. It definitely takes practice.

John: What are some recommendations you have for immigration attorneys and foreign nationals?

John: Why do you think Consular responsibility to demonstrate why Officers deny visas? they qualify for a visa, especially for visas that are subject to 214(b). The Travis: I can say without exception harder a Consular Officer must work that Consular Officers loathe visa to glean even basic details about an denials. As a Consular Officer, I Applicant’s situation or plans in the always remembered that my decision United States, the more likely that would affect the life trajectory of the applicant will face a denial. human standing at my window (e.g., whether they could attend their Mandy: I think the two biggest dream school in the United States, hurdles are how short visa interviews work for a U.S. employer, etc.), but I are and foreign nationals not being prepared for the visa interview. For still couldn’t escape the enormous 20

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Mandy: For immigration attorneys, I would recommend that any correspondence or memorandum for the consular section be kept short and concise but include key details like the timeline and visa history of the client/ visa applicant. Consular Officers are incredibly busy and will probably not read a 50-page letter. Clients should not rely on their documentation at their interview because a Consular Officer is often unwilling to review them (Officers have a common saying – “no documents!”) Instead, how the client explains their situation at the interview is absolutely crucial.

Usually, Consular Officers prefer to hear about a situation through an interview and not an attorney’s memo.

Finally, make sure that your clients are proactive interviewees and ready to address the main issues in their visa applications, especially if they have ineligibility, a prior arrest, past visa

Issue No. 8 | 2024

denials, etc. Because Travis and I know from experience how important it is for foreign nationals to prepare for their visa interviews, earlier this year, we launched ZF Visa Guides, which are F-1 and B1/B2 visa interview training courses created by former Consular Officers and immigration attorneys.

The ZF Visa Guides is really a bit of a passion project, because we have personally seen so many foreign nationals be denied visas because they don’t know how to communicate with a Consular Officer in a short amount of time. It’s not because they’re not eligible for the visa, but it’s because they don’t know what’s expected of them and how to talk to the Visa Officer. So that’s what we set out to do with these self-service online courses. For each course, Travis and I recorded multiple hours of video lessons that walked foreign nationals through every aspect of the visa interview process for the F-1 student visa and B1/B2 tourist and business visas. We teach them how to properly complete the DS-160 form so it doesn’t raise red flags at the visa interview and how to answer the Visa Officer’s questions truthfully and authentically.

Travis: Above all else: don’t leave anything to chance. Immigration lawyers should take a conservative approach when it comes to advising their clients (e.g., err on the side of a visa that truly fits the client’s

situation, even if it might take a bit longer for the initial approval instead of testing an alternative classification that might work).

Applicants should understand what to expect on the day of their interview, how to communicate with their Consular Officer, how to avoid possible complications (e.g., don’t hire an agent to fill out your DS160!), and how they might address complications that are simply unavoidable.

Before Mandy and I launched our online courses, we dedicated our time to one-on-one meetings with applicants, but we could never address all the inbound inquiries – whether from email, our website, our YouTube Channel (check out @ZFVisa!), or elsewhere. I’m excited that we can now offer a truly selfservice platform to empower every applicant to maximize their chance of success in their visa journey.

John: Wow, it sounds like the ZF Visa Guides course could be a very helpful tool for those applying for an F1 or B1/B2 visa. Aside from the online courses and the law firm, what do you two like to do for fun?

Travis: When I’m not blowing past Mandy on a snowboard, I enjoy any excuse to be outdoors. I’ve been an avid road cyclist since I first joined the State Department—a passion that even led me to start my own bicycle company while we lived in Hong Kong—and I rarely pass up an opportunity to jump on my bike in the sunshine of California!

For help with your complex consular issues, reach out to Mandy and Travis at info@zfvisa.com.

For more information on the Ex-Visa Officers’ B1/B2 and F-1 Visa Training Courses, visit www.zfvisaguides.com.

Mandy: Well, we have two little ones at home, so our free time really revolves around them. But we are both avid snowboarders and love international travel. We will be at the APAC AILA conference in Seoul in April 2025, where we are excited to connect with new and old friends.

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Alien Smuggling IV Denials for Indian Parents of Former Asylees

By Inderraj Singh, Esq.

Inderraj Singh, Esq. isingh@thesinghlawoffice.com thesinghlawoffice.com

The complexities of immigration law remain a source of confusion not only for the general public but also for seasoned practitioners. While certain immigration issues capture headlines and dominate public discourse, there are significant developments and events that often go unnoticed. These lesser-known issues, though underreported, have profound and lasting impacts— often resulting in the prolonged, if not permanent, separation of families. In this article, I will shed light on the recent trend of immigrant visa denial to parents of United States Citizens (“USC”) that continues to affect countless lives.

In 2024, I saw a marked increase in the denial of immigrant visas to Indian parents of U.S. citizens at the U.S. Consulate in Mumbai under INA §212(a)(6)(E)(i), alleging alien smuggling. These denials often involve parents whose children entered the United States without authorization and later obtained legal status 1 through asylum.

As an immigration practitioner frequently handling asylum cases, it is not uncommon to encounter clients who disclose that a family member—often a father or uncle— facilitated their departure from India. These admissions, while crucial to understanding the client’s journey, can raise complex legal issues, particularly when the U.S. government scrutinizes such assistance under provisions like INA §212(a)(6)(E)(i), relating to alien smuggling.

These familial connections and actions, though often motivated by a desire to protect loved ones from harm, can complicate the legal landscape for both the asylum seeker and their family members.

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The language governing alien smuggling is notably broad in scope.

Pursuant to INA §212(a)(6)(E)(i), a foreign national “who at any time knowingly has encouraged, induced, assisted, abetted, or aided” any other foreign national to enter or try to enter the United States in violation of laws is inadmissible.

Under the statute, a foreign national who suggests the idea of entering the United States–irrespective of the method of entering, that is, with or without authorization –can be subject to alien smuggling charges and could be deemed inadmissible. Although the statute specifically addresses entry or attempted entry in violation of U.S. immigration laws, it does not provide protection for legal encouragement or inducement if the individual ultimately enters unlawfully. This broad interpretation leaves room for significant legal consequences.

Suppose a father wishes for his son to leave his home nation for his son’s safety. The father arranges a meeting with a visa consultant and wishes to pursue legal options, but all efforts fail. The son, unbeknownst to his father, leaves his home country and enters the United States without authorization and in violation of immigration laws. This fact is mentioned in the son’s sworn declaration and the son also testifies to this fact in his merits hearing.

Upon becoming a USC, the son applies for his father and mother.

The U.S. consulates inquired from the father about the method and means by which his son traveled to the United States. The father mentions the meeting with the visa consultant and then mentions that his son entered illegally.

Issue No. 8 | 2024

1 The word legal status being used as a shortcut to describe the process of obtaining an asylum grant and then adjusting status to legal permanent resident and eventually becoming citizens through naturalization.

Under these circumstances, the U.S. consulate may deny the father an immigrant visa under INA §212(a) (6)(E)(i) for alien smuggling based on the claim that he encouraged or induced his son to enter the United States without authorization. If this outcome seems unexpected, it is— yet it reflects the broad application of the alien smuggling provision in cases like these.

In recent cases, it has come to light that even parents who have not actively "encouraged" or "induced" their child's departure from their home country and entry into the United States are being denied immigrant visas. This troubling pattern, particularly observed in India, suggests that the U.S. Consulate is effectively treating the parents as a single unit. If one parent is deemed inadmissible, the other parent is often found inadmissible as well, regardless of their individual actions or involvement.

analysis for each foreign national. It does not include language suggesting that parents or family units should be assessed collectively.

The law explicitly requires that

Application for Waiver of Grounds of Inadmissibility. However, this waiver process presents its own challenges, including significant costs and lengthy processing times.

determinations of admissibility be made on a case-by-case basis without presuming guilt by association.

Currently, the filing fee for the waiver under the general category is $1,050.00. For petitioners seeking to reunite with both parents, this means an additional financial burden of over $2,100.00 in government filing fees alone. These costs do not account for potential delays in adjudication and attorney fees, adding further hardship to families already facing prolonged separation.

Despite this, the Consulate's broad interpretation has led to a troubling practice where both parents, even those who may have had minimal or no involvement in their child's decision to move to the United States, are being denied visas. The result is that spouses are being unfairly lumped together, with both parents being deemed inadmissible.

These consulate denials are outside judicial review under the doctrine of consular nonreviewability pursuant to the Muñoz decision by the U.S. Supreme Court.

Currently, the average wait time for a waiver decision is approximately 28.5 months. In some cases, this process can take even longer. Unfortunately, the approval of the I-601 waiver does not mark the end of the waiting period. The process effectively enters a second phase, as the U.S. Consulate must be notified of the approval, and, if deemed necessary, a new interview date will be scheduled. This additional step can further delay the issuance of immigrant visas, prolonging family reunification.

The U.S. Consulate, however, is providing bad news of immigrant visa denial with a touch of humanity–issuing a one-page visa denial with a suggestion that a waiver is available to overcome the inadmissibility grounds.

A process that should ideally take 8 However, this practice appears to to 12 months is now stretching into contradict the statutory framework A potential remedy for overcoming several years for some foreign governing visa eligibility. The statute the alien smuggling inadmissibility nationals due to the overly broad ground is filing Form I-601, clearly mandates an individualized interpretation of alien smuggling

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charges. These charges are being applied to individuals who clearly have no involvement in the business of smuggling yet face severe consequences under immigration law. The significant filing fees for the I-601 waiver, combined with the lengthy wait times, effectively punish U.S. citizens of modest financial means. For many, this additional financial strain resembles a "poverty tax" on immigrant visas, disproportionately impacting families who simply seek lawful reunification.

It remains unclear why the U.S. Consulate has recently adopted this aggressive approach. These parents, in many cases, merely suggest a course of action to protect their children from harm. In Matter of Tiwari, the Board of Immigration Appeals has recognized that individuals may engage in "smuggling" out of charity, love, or kindness. Viewed through the emotional lens of Tiwari, these parents’ actions should be understood as “encouraging or inducing” their children to smuggle into the United States out of love and kindness.

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Consulate has recently adopted this aggressive approach. These parents, in many cases, merely suggest a course of action to protect their children from harm. In Matter of Tiwari, the Board of Immigration Appeals has recognized that individuals may engage in "smuggling" out of charity, love, or kindness. Viewed through the emotional lens of Tiwari, these parents’ actions should be understood as “encouraging or inducing” their children to smuggle into the United States out of love and kindness.

Given this precedent, the government should continue its historical practice of exempting parents from alien smuggling charges under INA §212(a)(6)(E)(i) and deeming them admissible. These parents deserve to be reunited with their children, and their immigrant visas should be issued without further obstacles.

About the Author: Inderraj Singh is a California licensed lawyer and the founder of The Singh Law Office. Mr. Singh practices Removal Defense, particularly focusing on Asylum cases along with Adjustment of Status, family-based immigration, and has a robust Immigration Appellate Practice. Mr. Singh's recent win at the Ninth Circuit in Kumar v. Garland was a key victory in cementing the past persecution standard for the Mann Party members in particular. Mr. Singh is currently litigating Asylum cases in several States. Mr. Singh also practices family law and Civil Litigation. Prior to graduating from Pepperdine Law School, Mr. Singh served in the United States Air Force for 5 years. In addition to law practice, Mr. Singh hosts the Legal Talk with Inderraj in Punjabi. Mr. Singh is admitted to practice before the Ninth Circuit Court of Appeals and the Supreme Court of the United States.

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Navigating Immigration Reform: A GUIDE FOR LAW FIRMS Change is constant in immigration law, demanding proactive adaptation from law firms. This is especially true as we move into 2025, with ongoing shifts in policies and enforcement.

So what can immigration law firms do to prepare? This guide provides key strategies to not only survive, but thrive, in this wild ride.

While none of us can truly predict what will happen throughout the next year, these are our best hunches.

Key Trends and 2025 Considerations Current trends point towards continued emphasis on border security, enforcement, and potentially increased scrutiny of visa applications. We also see a continued push for skilled worker visas and a focus on economic contributions. The two of those come into contrast at some level, so the repercussions of any decisions, even the smallest ones, will be monumental and require adaptability.

Looking ahead to 2025, several factors are likely to shape the landscape: •Technological Advancements in Enforcement: Expect further integration of technology in border control and immigration processing, potentially impacting application timelines and procedures.

Biometrics and data analytics are likely to play an even larger role.

•Shifting Political Landscape: Elections and potential changes in administration could lead to significant policy shifts, requiring firms to be prepared for both restrictive and more lenient approaches.

•Economic Fluctuations: Economic conditions can significantly influence immigration patterns and policies. Firms should monitor economic indicators and prepare for potential shifts in demand for different visa categories.

The Impact on Law Firms These changes in immigration law present a law firms specializing in this area.

expertise and strategic counsel, placing a premium on the skills of experienced immigration attorneys.

The sheer velocity of change—with frequent updates to statutes, regulations, agency

This surge in demand, coupled with the inherent complexity of each case, creates significant

complex duality of challenges and opportunities for

interpretations, and enforcement priorities—demands an unprecedented level of vigilance and a sustained commitment to professional development. Firms must not only track formal legal pronouncements but also anticipate shifts in agency practices, processing times, and enforcement strategies. This requires a significant investment in resources, including dedicated research staff, subscriptions to legal databases, and ongoing training programs.

This constant state of flux translates directly into increased client demand, as individuals and businesses grapple with increasingly intricate procedures and potential legal pitfalls.

Navigating the complexities of visa applications, deportation defense, asylum claims, and other immigration matters requires specialized

pressure on firms to maintain both efficiency and profitability. Effectively managing potentially higher caseloads while ensuring meticulous attention to detail and personalized client service requires optimized operations, streamlined workflows, and the strategic deployment of technology. Firms must find innovative ways to balance the demands of providing high-quality legal representation with the imperative to remain competitive in a demanding market. This might involve adopting advanced case management systems, implementing sophisticated data analytics tools, refining internal processes through lean methodologies, or exploring alternative fee arrangements that align client needs with firm profitability.

How Can You Prepare for the Future?

Looking beyond 2025, firms must embrace a mindset of continuous adaptation and innovation.

This includes: •Scenario Planning: Prepare for various potential policy scenarios based on political and economic factors.

•Building Strong Relationships: Cultivate relationships with government agencies, industry stakeholders, and other relevant organizations.

•Investing in Technology and Innovation: Continuously evaluate and adopt new technologies to enhance efficiency and client service.

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Immigration Lawyers Toolbox® Magazine

Updated D3 Waiver Guidance: How This Helps Graduates Of U.S. Colleges And Universities Returning Here To Work

By Dan H. Berger, Esq.

Dan H. Berger, Esq. dhb7@cornell.edu www.gands.com

In June 2024, the Biden administration announced that it would ease the pathway to longterm immigration status for Dreamers (people who were brought to the United States as children). In July 2024, the Department of State (DOS) updated its Foreign Affairs Manual, clarifying that Dreamers and other U.S. college graduates can qualify for expedited processing of waivers 1 (D3 waivers). 2 The first D3 waiver was processed under this guidance in September, with some details in this Substack posting. This guidance is relatively new, and there is a lead time to file cases, but to date, this process seems to be streamlining the D3 waiver pathway for U.S. college and university graduates. As with all other areas of immigration law, practitioners will be monitoring trends under the next administration.

The D3 waiver is an established part of the immigration statute that offers a waiver of the 3- or 10-year unlawful presence bars for nonimmigrant visa purposes (unlike the better-known I-601 waiver for immigrant visa purposes). It has historically been underutilized by the undocumented community due in part to long processing times, which would necessitate waiting many months or even years abroad.

The author is part of a grant-funded program at Cornell Law School called Path2 Papers that helps attorneys, employers, and DACA recipients understand employersponsored visa pathways. Over half of the DACA recipients we have met have a viable employment-based visa option. Moreover, many who might not qualify for an employment-based option now might benefit in the future if they obtain a new job or academic

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degree.

Some individuals might be hesitant to engage with a new program, especially with the 2024 election results. Attorneys may recall similar conversations about the DACA program when it was first announced in 2012. Two colleagues then laid out the argument for 3 considering applying for DACA, recognizing that each person's situation and risk tolerance are unique.

Lawyers who discount the D3 process for Dreamers as too uncertain fail to properly weigh the importance of the new D3 expedite process as an essential pathway for over 500,000 DACA beneficiaries who may lose their jobs and their protection from removal in the next few years. And also, to consider the benefit for those who have not been able to obtain DACA benefits.

While many DACA beneficiaries who apply for H-1B or other nonimmigrant work visas will likely need to apply for the new expedited D3 waiver, younger DACA beneficiaries, which constitute an estimated 40% of all DACA recipients, do not need a D3 waiver.4 We hope that publicity around the D3 waiver initiative will encourage all DACA recipients to get screenings and learn about pathways to status.

1 Technically, D3 is not a waiver, but authorization provided by Customs and Border Protection’s Admissibility Review Office for a State Department consular office to issue a nonimmigrant visa outside the United States. Given the widespread use of the term waiver, however, we refer to this initiative as a “D3 waiver.”

2 For a general discussion of D3 waivers, see 2 Charles Gordon, Stanley Mailman, Stephen YaleLoehr & Ronald Y. Wada, Immigration Law and Procedure § 12.05.

3 https://cbkimmigration.com/wpcontent/uploads/2017/07/lexisnexis-emerging-issuesanalysis-daca.pdf.

Issue No. 8 | 2024

What Nonimmigrant Visa Types Will Work?

In general, an employer must enter a lottery for the ability to sponsor an employee for an H-1B visa. This is held in March each year and has a success rate in the 25% range. As a result, there is a lot of interest in socalled "cap exemptions" -- ways to sponsor an H-1B outside the lottery.

This is a complicated area of law.

The guidance is not clear, and the range of types of organizations keeps growing. To start, five situations are relatively straightforward – the following employers do NOT need to go through the lottery and can sponsor an employee for an H-1B visa at any time: 1. Institutions of higher education (nonprofit colleges or universities).

2. Government or nonprofit research organizations.

3. A healthcare practice hiring a doctor who has previously been issued a J-1 waiver for clinical practice for a medically underserved population.

4. An employer hiring a worker who already has an H-1B through another cap-exempt employer.

The concurrent employment at the cap-exempt organization can be part-time so long as the position continues. If the part-time cap-exempt H-1B ends, the concurrent H-1B ends.

5. Employment at a cap-exempt organization where the individual physically works more than 50% of their time on the grounds of that organization.

A common example is a private medical practice operating at a nonprofit teaching hospital.

Late last year, USCIS proposed an H-1B modernization regulation that would clarify many questions about cap exemptions. Do government entities qualify as nonprofit? How much time must an employee spend physically on a university campus in an era when many employees are remote? We hope that this regulation will be finalized to provide greater clarity for H-1B cap exemptions.

Congressional Research Service, Deferred Action for Childhood Arrivals (DACA): By the Numbers 13 (Apr. 14, 2021), https://sgp.fas.org/crs/homesec/R46764.pdf [hereinafter CRS Report].

The New Enhanced D3 Waiver Process Thanks to the new D3 waiver guidance, this process should be faster, more likely to be approved, and subject to an internal review process when a waiver is denied.

Specifically, 9 FAM 305.4-3 creates three important benefits:

(1) Visa officers are instructed to consider the fact that a person has a U.S. degree and is returning to work for a U.S. employer a significant positive factor in meeting of the D3 waiver requirements, Another situation is more one significantly increasing the chances complicated but creates an of waiver approval. opportunity for many nonprofits to become cap-exempt. A 501(c)(3), (2) Visa officers are encouraged to (c)4, or (c)6 nonprofit is cap-exempt recommend expedited D3 waiver for H-1B purposes if it is affiliated processing in the same with a cap-exempt organization circumstances when a person has a (usually a college, university, or U.S. degree and is returning to research organization).

The nonprofit must have a written work for a U.S. employer. affiliation agreement and evidence (3) If a visa officer declines to that there is an active working recommend a D3 waiver for relationship. Many nonprofits have approval, the applicant can ask connections with a college or DOS headquarters to review the university by engaging in joint decision. projects or accepting student interns, so establishing a cap exemption that While D3 waivers are never cements this relationship can be guaranteed, these new mutually beneficial. enhancements make an H-1B with the D3 route faster, easier, and reviewable. For those DACA

beneficiaries who choose to obtain an H-1B visa using this new process, the risks and uncertainty of obtaining approvals have significantly decreased. This is an essential tool that DACA beneficiaries should consider while DACA advance parole still exists.

Maneuvering the Uncertainty: What Happens After an H-1B with D3 is Approved?

Attorneys sometimes ask whether getting a nonimmigrant visa with a D3 waiver is a short-term gain with no long-term plan. Will it leave the individual vulnerable in the future?

Since there are many fact patterns in

the Dreamer population, we present below an FAQ laying out some of the longer-term options. For those who are undocumented or concerned about the end of DACA, the D3 waiver benefit may be enough for now, even if there is no clear longterm plan. For others, it is possible to map out a longer-term strategy to move to permanent residence.

Conclusion As with the original DACA program, we encourage immigration attorneys to carefully consider the new D3 pathway for their clients. D3 is one of many tools that are available to immigration practitioners to consider. Given the uncertainty surrounding DACA, for many Dreamers it could mean choosing between remaining undocumented or having a more stable lawful status.

For more information about employment-based options for Dreamers, see Path2Papers and Legal Pathways that Work websites.

About the Author: Dan Berger is a Visiting Fellow at Cornell Law School and a Senior Attorney at Path2Papers. He is also a Partner at Green & Spiegel LLC.

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12 Must-Know Tips for Immigration Practitioners Navigating the CBP Website

By Joseph Tsang, Esq.

1. Traveler’s Redress (DHS TRIP)

Joseph Tsang, Esq. Jdtsang@tsangslaw.com tsangslaw.com The U.S. Customs and Border Protection (CBP) has two primary websites., While one is for general CBP resources, the other, the DHS Traveler Redress Inquiry Program (DHS TRIP), is invaluable for addressing frequent entry issues. If a client experiences repeated mistaken identity or unnecessary detentions, filing a complaint through DHS TRIP can be a game-changer, saving you and your client time and stress.

DHS TRIP has proven effective for many of our clients, so it’s worth bookmarking! Pro Tip—the redress only lasts for 1 year for security purposes, so if it is an ongoing issue, just make sure you submit a new redress every year before you enter.

help if a TRIP inquiry isn’t resolved, or if you need follow-up support.

Reach out to these officers directly to discuss specific cases and clarify entry procedures.

3. Waivers The CBP site also provides a comprehensive list of immigration forms and waivers, such as I-192, I193, and I-212 waivers. Practitioners should familiarize themselves with these forms, as CBP officers need them to clear certain entries. You’ll see which forms require fees and which don’t, giving you a handy reference for waiver requirements.

4. The I-94 Tool

2. Professionalism Service Manager (PSM)

On the main CBP site, the PSM contact list is crucial to contact someone directly at the port of entry. This area offers contact numbers for CBP officers and can 36

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Checking I-94 records on the CBP site is crucial for verifying correct admission statuses and dates. This tool is invaluable for practitioners working with clients in temporary statuses. Remember, airlines often provide the data here, so doublecheck for errors, especially if you

Issue No. 8 | 2024

notice recurring issues with specific airlines or ports of entry.

5. CBP Videos

CBP offers short, informative videos on topics like customs expectations and travel tips, which can answer many common client questions.

Instead of fielding these repeatedly, consider sharing these videos with clients for efficient guidance on arrival and inspection procedures.

6. Restricted Items List CBP provides an exhaustive list of items restricted from entry. This is especially helpful when advising clients from diverse cultural backgrounds. Sharing this list with clients can prevent common issues at inspection points and ensure they’re well-prepared for customs.

7. Important Notices and Customs Warnings 9. Real-Time Wait Times Wait times for entry are available on the site for major U.S. entry points, including airports like LAX. Practitioners can share this information with clients to help CBP frequently updates the website them plan accordingly, reducing with travel notices, such as stress and facilitating smoother reminders for Canadians about arrivals. federal marijuana restrictions or bans on specific agricultural 10. Deferred Inspection Process products. These alerts can help practitioners anticipate issues their If an officer cannot fully adjudicate a case at the point of entry, the CBP clients might face at customs. site outlines deferred inspection protocols. This is also where clients 8. Port of Entry Directory can correct errors, like I-94 discrepancies, through designated inspection points, complete with contact details.

12. Trusted Traveler Programs

CBP’s site lists all entry points, including airports and land borders.

Understanding the setup at each location can help you and your clients choose the best entry options and avoid potential congestion.

empower you and your clients to navigate the immigration process with greater clarity and confidence.

P.S. This CBP handbook section is great and full of great details for unique situations: Directives and Handbooks | U.S. Customs and Border Protection About the Author: Joseph Tsang is an immigration and naturalization law specialist and founding partner of the international law firm Tsang & Associates. He serves on the national liaison committees for American Immigration Lawyer Association and is a regular speaker and author at conferences. He has a YouTube channel that focuses on creative solutions for legal problems.

Trusted Traveler Programs such as NEXUS, SENTRI, and Global Entry offer expedited entry for frequent travelers, and details on each program’s requirements are available on the CBP site. These programs vary by nationality, so this section is a must-read for practitioners assisting frequent cross-border clients.

These are the essentials on the CBP website for immigration practitioners. Each point can 37

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