Immigration Articles

Pregnant Women and Visa Applications 04/02/2020

I am pregnant and I want a visitor visa now!

April 2,2020

By James T. Daly

Evan is a citizen of India. She is 7 months pregnant and it shows. Evan has been invited to attend her best friend’s wedding in the US. In order to attend the wedding, Evan will need to apply for a B2 visitor visa. Can the officer deny Evan’s visa application because the officer thinks that Evan just wants to enter the US so she can give birth, thereby conferring US citizenship on her child (commonly known as “birth tourism”)? Yes, the officer can deny the application.

On January 23, 2020, the US State Department addressed this issue and amended the B2 visa rules to establish a rebuttable presumption that a B2 visa applicant, who a consular officer has reason to believe will give birth during her stay in the United States, is traveling for the primary purpose of obtaining U.S. citizenship for the child. The rule requires consular officers to deny B2 visa applications to applicants who do not overcome the presumption.

The new rule retains the general rule that pleasure, for purposes of visa issuance, refers to
legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or services nature. The new rule also states that travel for the primary purpose of obtaining United States citizenship for a child by giving birth in the United States is not a legitimate visitor activity.

According to the US State Department, birth tourism poses risks to national security:

    “The birth tourism industry is also rife with criminal activity, including international criminal schemes, as reflected in federal prosecutions of individuals and entities involved in that industry.”

Under the primary purpose test, a consular officer must consider a visa applicant’s primary
(or principal) purpose of travel to evaluate the applicant’s eligibility for the requested visa classification. All of a visa applicant’s intended activities in the United States are considered in
determining the applicant’s eligibility for a visa. The US State Department’s guidance to consular officers on this point—that an ‘‘alien desiring to come to the United States for one principal, and one or more incidental, purposes should be classified in accordance with
the principal purpose’’—has remained unchanged for well over 30 years.

An entire ‘‘birth tourism’’ industry has evolved to assist pregnant women from other countries to come to the United States to obtain U.S. citizenship for their children by giving birth in the United States, and thereby entitle their child to the benefits of US citizenship. Birth tourism companies advertise their businesses abroad by promoting the citizenship-related benefits of giving birth in the United States. Companies tout a broad range of benefits for the U.S. citizen child and eventually its family, including, but not limited to, access to free education, less pollution, retirement benefits, the ability to compete for jobs in the U.S. government, and the ability for the whole family to eventually immigrate to the United States. The visa officer knows this.

So what should Evan do at the visa interview? She should bring evidence with her to the interview confirming that the primary purpose of her travel is to attend the wedding and that she will return home after the wedding is over. Evidence could include:

1. Copy of the wedding announcement;
2. All correspondence about the wedding including any scheduled parties, rehearsals, hotel recommendations/reservations, etc.;
3. Employment verification letter from Evan’s employer confirming that she has time off to attend the wedding;
4. Copies of pay stubs and tax returns;
5. Copy of Evan’s lease agreement;
6. If delivery arrangements have been made at a hospital in India, a copy of the agreement.

Under this new rule, if a pregnant woman cannot prove that having birth in the US is not the primary reason for travel, the visa application will be denied.

Defective Notices to Appear and the Stop Time Rule

By James T. Daly

Many people in removal proceedings apply for Cancellation of Removal as a form of relief. If the application is granted, the person becomes a lawful permanent resident. This form of relief requires the applicant to prove:

  1. Physical presence in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
  2. The applicant has been a person of good moral character during such period;
  3. The applicant has not been convicted of certain offenses; and
  4. The applicant establishes that removal would result in exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

The removal process starts with the issuance of a Notice to Appear (“NTA”) . The NTA is a charging document similar to a Complaint in criminal court. The NTA is served on the person and it contains factual allegations about the person (i.e. when the person entered, the country of nationality, current status, etc.) and also explains why the person is removable from the US. If a person admits that they are removable from the US, the person may request relief from removal by applying for Cancellation of Removal. This article discusses item #1 above: the requirement of 10 years of physical presence in the US.

Certain actions stop the accrual of time towards the 10 year physical presence requirement. Section 240A(d)(1)(A) of the Immigration and Nationality Act (“INA”) says that the period of continuous residence ends when the person is (1) Served with an NTA or (2) Commits certain crimes. This article discusses the service of the NTA.

The NTA is required to contain the date and place of the immigration hearing. For years, NTA’s were served on people without containing the date and place of the hearing. People would argue that these NTA’s were deficient and not valid to initiate removal proceedings or stop the accrual of physical presence time in the US.

Immigration judges would hold that the deficient NTA’s were valid. Appeals of the immigration judge’s decisions were filed at the Board of Immigration Appeals (“BIA”). The BIA held that as long as a later issued document contains the date and time of the hearing, the date of the deficient NTA controls and stops the accrual of the 10 years of required physical presence.

Wescley Fonseca Pereira disagreed with the BIA and fought his case all of the way to the US Supreme Court (Pereira v. Sessions, 138 S. Ct. 2015 (2018). Mr. Pereira is a native and citizen of Brazil who came to the United States in 2000 and remained after his visa expired. Following a 2006 arrest for operating a vehicle while under the influence of alcohol, the Department of Homeland Security (“DHS”) served him with an NTA that did not specify the date and time of his initial removal hearing, instead ordering him to appear at a time and date to be set in the future.

More than a year later, in 2007, the Immigration Court mailed Mr. Pereira a more specific notice setting the date and time for his initial hearing, but the notice was sent to the wrong address and was returned as undeliverable. As a result, Mr. Pereira failed to appear, and the Immigration Court ordered him removed in absentia.

In 2013, Mr. Pereira was arrested for a minor motor vehicle violation and detained by DHS. The Immigration Court reopened the removal proceedings after Mr. Pereira demonstrated that he never received the 2007 notice. He then applied for cancellation of removal, arguing that he had been continuously present in the United States for more than 10 years and that the stop-time rule was not triggered by DHS’ initial 2006 NTA because the NTA lacked information about the time and date of his removal hearing.

The Immigration Court disagreed and ordered Pereira removed from the US. The BIA agreed with the Immigration Court and held that the 2006 notice triggered the stop-time rule, even though it failed to specify the time and date of Mr. Pereira’s initial removal hearing. The BIA stated that the 2007 immigration court hearing notice did contain the required information so the stop-time rule was triggered.

Mr. Pereira appealed to the Court of Appeals for the First Circuit. The Court denied Mr. Pereira’s petition for review of the BIA’s order stating that the BIA’s rule was a permissible reading of the statute.

Mr. Pereira appealed to the US Supreme Court. The Court reversed the First Circuit and held that a “putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under §1229(a),” and so does not trigger the stop-time rule.”

The BIA read the Pereira decision and on May 1, 2019 in Matter of Silvestre Mendoza Hernandez and Matter of Rufina Capula-Cortez, 27 I&N Dec. 520 (BIA 2019), the BIA said that the Supreme Court did not address whether a later issued hearing notice from the immigration court that does specify the date and place of the hearing triggers the stop time rule.  The BIA held that the later issued immigration court that does contain the date and place of the hearing triggers the stop time rule.

But wait! On May 22, 2019 in Lopez v. Barr, 925 F.3d 396, the Court of Appeals for the Ninth Circuit held that a notice to appear that was defective under Pereira could not be cured by a subsequent notice of hearing issued by the immigration court because the law did not permit multiple documents to collectively satisfy the requirements of a notice to appear. Because Mr. Lopez never received a valid notice to appear, his residency continued beyond 2008, and thus he was eligible for cancellation of removal. Lopez v. Barr, 925 F.3d 396, 398.

So the new issue is: Does a later issued immigration court notice containing the date and place of the hearing supplement a defective NTA and trigger the stop time rule? We will continue to follow the developments in this matter. Hopefully it will be resolved soon.