Trump’s travel ban, public charge and vetting curtails Fiance visa couples

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President Trump made quite an impact on the Fiance K-1 visa process. His frenzy included

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● The Travel Ban

● Public charge revisions (currently approved by Court)

● Social media vetting

● various background checks

● Among other changes

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These not only resulted in stress, anxiety, and piles of paperwork, but also

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● Couples who got stuck in limbo

● Some lost in Administrative Processing for years without the slightest idea of when they’ll reunite with their partners

● And many who heard silence when they asked questions

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The most serious of these is the travel ban, which made headlines. One story in particular, Brian and Mehraneh, has got the attention of the media.

It turned out, Brian met his Iranian fiance, Mehraneh, in 2015 when she came to the US on the research scholar (J) visa.

In order for her to be eligible for a K-1 visa, Mehraneh had to return to Iran for the two-year residency requirement before undergoing her visa interview.

But even though her K-1 visa interview was approved two years ago, they didn’t hear back from the embassy until recently.

Just silence.

They’ve made several unsuccessful attempts and fought hard. Fortunately, in late 2018, they were approved.  But it’s obvious that the Travel Ban dragged their love story through a mud puddle. Unfortunately, this couple is just one of many to get hit by former President Trump’s Travel Ban.

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How immigration got to this point after Trump took office

But let’s step back and look at how this all started.

The Terrorist attacks of 9/11 and the San Bernardino shooting in 2015 has a lot to do with it. The latter drew attention to the K-1 visa process because the beneficiary, deemed a terrorist, entered on a fiancé visa and was from a Muslim country.

From the offset of Trump’s presidency, the entire immigration system was scrutinized.

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● Travel Ban – Executive Order 13769 effectively banned citizens from seven predominantly Muslim countries. On January 31, 2020, Trump added several more countries.
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● Rising delays – the average I-129F processing time went up because of intense vetting. (but still there was a steady number of I-129F applications coming in, as we’ll see below)
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● Criminal records – in the new I-129F edition, criminal history became a big target, was scrutinized, and explored a lot more than before.
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● Social media vetting – social media disclosure became mandatory for all K visa applicants.

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Which K-1 visa applicants are affected by the Travel Ban?

Brian and his fiance from Iran were one example, but who are the others affected?

Nationals of several countries are currently subject to travel restrictions according to the Presidential Proclamation 9645.

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Since the K-1 visa is technically considered “non-immigrant”, fiance visa applicants are affected if they’re citizens of:

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● Iran
● Libya
● North Korea
● Somalia
● Syria
● Yemen
● Venezuela
● Nigeria
● Myanmar
● Eritrea
● Kyrgyzstan
● Sudan
● Tanzania

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In addition, even if a traveler had an ESTA (VWP), they would need to get a visa if they were originally from a nation on the travel ban.

Out of the thirteen (13) countries, Venezuela seems to be the only one that is not affected in terms of K-1 visa issuance (as long as you’re not a higher government employee).

The justification that Trump gave as to why he chose these seven countries is that such countries’ governments…

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“[do not]…ensure the proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits.”

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Meaning, these seven countries don’t provide enough information on their citizens for the US to determine if they’re a threat or not.

So, who gets to make this life-changing decision? Well, a consular officer makes a final determination of eligibility. So, let’s talk about that.

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Applicants affected by the Travel Ban may be eligible for a K-1 Visa

A consular officer has to carefully review each I-129F petition to determine if the applicant is affected by the P.P. and qualifies for an exception or a waiver.

According to the US DOS, applicants must disclose any and all history or circumstances that would indicate to the Embassy that he/she is a threat. 

Following which, the officer decides if issuing the K-1 visa is in the national interest, the applicant poses no threat to the US, or if a denial would cause “undue hardship”.

But, of course, no one gives a clear definition for “undue hardship”… and this provides enormous latitude to the DOS in whom he approve or deny, shielded by a cloak of non-transparency. 

In fact, there are cases where people have waited almost 2 years in silence. And many who were never approved.

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For example, from Dec 2017 to Dec 2019, only 17% of affected NIV visa applicants had waivers approved from travel ban countries, according to the Department of State statistics.

But still, some applicants do get approved. What are two ways you can get a K-1 visa if you’re from one of the seven nations?

Well, the waiver is the first. That’s based upon the discretion of the consular officer. And if you’re under Administrative processing, you can request congresspersons or senators to intervene. Some couples are also finding legal routes to press the DOS for answers (and thereby getting approved).

The second method is that if you’re a dual national and you’re using the passport of a non-designated country, you can evade the restriction even if you hold dual nationality from one of the seven restricted countries.

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More complexity in the I-129F petition

The I-129F form got longer and more inquisitive as a result of Trump’s goal to improve security.

There used to be a time when only a few pages were enough to comply with the information needed for a petition.

Recently, we’ve seen not only the form get longer, but also more detailed, and the fees are increasing.

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● Form I-129F got longer because it consolidated what was originally in the G-325A (discontinued for Fiance visa petitions)
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● More questions asked about your background and history, including: past addresses, employment, parents history, beneficiary’s travel to the US, etc.
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● You disclose ALL criminal history (big or small) regardless of the conviction. In other words, if you got arrested or imprisoned, they want to know.

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To make things even more strict, the USCIS now has lower tolerance for RFEs. 

In the past, the USCIS would issue Request for Evidence (RFE)s when your paperwork wasn’t complete to a certain standard… consider that them being “nice” because they gave you an opportunity to fix it. 

However, now the USCIS new policy has lower tolerance for RFE for cases which are grossly insufficient. That’s because they realized some petitioners were deliberately sending weak petitions with a lot of missing documents as a tactic to save time while they gathered the remaining documents.

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Social Media Vetting for K-1 visa applicants

To be fair, social media vetting was in effect even before former President Trump took office. 

In the Obama days, social media vetting was only a pilot program and used in certain situations to determine “eligibility for a visa”. 

The USCIS, the Dept of State, and even Customs and Border protection could open up public information on you while doing an interview (i.e. social media, google, twitter, etc.)

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Trump made social media disclosure mandatory as part of the application for non-immigrants including fiance K-1 visas.

So, what exactly do they look for? What influences their decisions?

Well, in the DS-160, you select from a dropdown list of which social media handles you have or have had in the past. The Department of State then uses data-mining software to target Facebook, Google, Twitter, or dozens of other platforms… and presents Officers with information.

And although most experts agree that the data-mining software is unreliable and flawed, it’s still employed to help look for connections to criminals, terrorists, or security risks. 

Secondly, for family-based and K Visas, they try to spot fraud or marriage scams.

So, the question on all our minds is: well, how effective or impactful has social media vetting been? are more people getting denied as a result? any statistics?

Well, quite frankly, it hasn’t made much of an impact. There are only a few stories of denial resulting from social media vetting on fiance visas.

For the most part, it seems that the Dept of State doesn’t currently rely too much on this system. But there are no statistics available to verify this.

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Trump’s “public charge” for the I-134

One of the biggest ripples former President Trump caused with fiance visas is the “public charge” requirement. Public charge is an existing law that says all intending immigrants must have financial support (either by themselves or sponsoring family members) so they won’t become a “burden” on the US.

Although “public charge” was already part of the US immigration system long ago, Trump’s made it a lot more visible. In fact, his plan was to enforce the “totality of circumstances” a lot more so Consular officers would be stricter with whom they grant a visa or whom the USCIS would grant Permanent Residency to.

The requirement suggests applicants should have higher income, be able to prove they have health insurance, and pay for their sustenance. This is known as the “wealth test”.

To people this meant that he was creating a barrier for poorer applicants or their petitioners during their fiance K-1 visa interview (form I-134).

In addition, his plan calls for the USCIS to adjudicate Permanent Residency (form I-485) with a higher level of scrutiny, thereby reducing the number of people who are eligible for a green card.

On October 15, 2019, this order was implemented but it was quickly blocked by Court. As a note from the Department of State explains:

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“Although the effective date of the interim final rule is October 15, 2019, the Department will not implement the rule until the use of a new form for information collection is approved by the Office of Management and Budget.  On October 24, 2019, the Department published a 60-Day Notice of Proposed Information Collection for its Public Charge Questionnaire, which is a necessary step to have the new information collection approved.”

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It turned out that both the Courts in the US, and the US Department of State blocked this order. Meaning…

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“visa applicants are not required to take any additional steps at this time and should attend their visa interviews as scheduled.  We will inform applicants of any changes to current visa application procedures.”

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However, as of January 27th, 2020, the courts have approved the stricter form of “public charge” to be implemented in the US for Adjustment of Status. 

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How did Trump affect K-1 Visa statistics?

According to the official statistics, Trump’s first three years has affected the K-1 visa dramatically.

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Sources: USCIS, US DOS, US DHS immigration statistics.

The key takeaways are:

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● A steady number of people are applying for a fiance visa (consistent I-129F submission numbers) over the years.
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● The number of K-1 and K-2 visa approvals decreased *BUT* the percent of approvals/denials is almost the same. Meaning: it’s not harder to get approved, it just takes longer. (explained in detail: statistics for fiance visas in 2018)
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● The number of K-1 and K-2 entries at the POE has correspondingly gone down as a result of fewer approvals. 

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The following are K visas granted to citizens affected by the travel ban: Annual Reports 2016, 2017, 2018,

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What’s going to happen with fiance visas in the future?

Aside from the Travel Ban, Public charge revisions, social media vetting, background checks and more… there’s more general agitation.  

You’ve heard of the numerous ICE raids throughout the country, you’ve heard of the issues at the border, and you’ve heard of the backlog the USCIS faced.

The results are apparent: delayed petitions, Administrative Processing, and resentment. 

The most serious impact to fiance visa applicants is the travel ban and the dramatic decrease in overall K visa approvals for 2018. 

Although Trump never specifically targeted immigrant visas or fiance visas, the repercussions will be felt for years. 

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60-day “immigration ban” aimed at reducing unemployment

Aside from the Travel Ban, on April 23, 2020 the executive order for an immigration ban went into effect.

Domestic employment- the key point behind this new order was to help Americans regain jobs which are otherwise given to foreign workers (i.e. H1-B, etc.).

The secondary benefit was to reduce the load on consular sections (i.e. visas processing) abroad because they’re already working on reduced staff.

Section 2: Limitations on ENTRY of certain individuals:
(i) those aliens who are outside the US right now
(ii) those who don’t ALREADY have an immigrant visa at this point
(iii) those who don’t ALREADY have another travel document or permit to enter the US

(b) this new suspension of ENTRY does not apply to the following
(i) any Legal Permanent Residents (LPR)
(ii) aliens entering on healthcare basis.
(iii) aliens on an EB-5 (investor) category
(iv) aliens who are spouses of US citizens (i.e. CR1/IR1 recipients)
(v) children of US citizens or adoptees
(vi) aliens allowed by US law enforcement
(vii) armed forces personnel and family
(viii) special immigrant categories
(ix) aliens allowed by the DHS (i.e. upon discretion of the government)

During a visa interview, Consular officers will determine the eligibility or exceptions of those listed under the category which “does not apply” (list from section “b” above).

Any visa applicant who uses fraud to circumvent the immigration process or those who misrepresent will be subject to removal.
Asylum, refugee, or other protected classes are still eligible for entry and visas.

This executive order expired in 60 days from the effective date unless it was continued after the 60-day limit. This proclamation start 11:59 PM April 23, 2020.

It was unclear whether Fiance K-1 visa categories fit into this situation. But since K visa are normally counted with family-based (i.e. spousal, siblings, etc), it’s fair to assume that fiance visa shouldn’t be affected or counted within this immigration ban.

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Foreign workers “immigration ban”

This executive order specifically bans H1-B, H-2B, J-1, J-2, L-1, and L-2 visas starting June 24, 2020. This was effective for 6 months until the end of 2020.   

The Fiance K visa category is exempt.