Transcript of the above video: 

As the title of this video suggest, we are discussing Trump's Visa pause, this new news that now apparently USCIS isn't going to do Green Card issuance anymore, and we are talking specifically about K-1 and K-3 Visas because they seem to sort of be on the one hand threading the eye of the needle as it were, sort of legally, but at the same time amidst this new discussion of well we're not going to issue Green Cards, Residency in America, you have to go abroad - self-deport as it were - there's a lot going on here. That said let's go back over here. I've already cited this in a prior video but that said, I think it's worth pointing out again. This is from the Cato Institute, cato.org, the article is titled: DHS Quits Granting Green Cards -- Almost Entirely. Quoting directly: "The Department of Homeland Security (DHS) announced Friday that it will cease granting Green Card applications except in extraordinary circumstances."

So look, there's a lot of language that has just been sort of thrown out there in coming up with these new regulations based on I guess their interpretation of the law. I think it's wildly disingenuous because they come up with notions like 'outstanding equities' and 'unusually important and extraordinary circumstances' and that gaining residence is in and of itself is an "extraordinary form of relief". All of it is pretty nonsensical in light of a plain language reading of the Immigration and Nationality Act. Now I can go on and on about that, but let's deal with what we need to deal with, rather than talk about why this is such bad policy. It's not based on really in my opinion, sound legal interpretation. On top of that, there was no Notice and Comment period so they have created this new regulation out of whole cloth and then they didn't allow anyone to make any commentary on it, which is standard operating procedure for setting new regulations, because one, there needs to be a notice period so people can be aware that this is coming online and two, commentary from for example people like me who would say, "Yes I guess that we need to deal with illegal immigrants, but those who specifically come to the United States - and they've done so legally - if there's a legal path to residence, they should be able to avail themselves of that. I don't think there's anything wrong with that.

That said, quoting further: "In short, DHS grants Green Cards when a qualified immigrant who is inside the United States applies to adjust their status to legal permanent residence. Now, every legal immigrant must leave the country -- that is, self-deport -- even if they are qualified for a Green Card -- and even if leaving would disqualify them." So then that brings into mind the question, what's the point of these Visas? It calls into mind the question of the K-1 Visa - and I'll get to the K-3 as well - but let's go through some further analysis here. Quote: "From now on, an alien who is in the US temporarily wants a Green Card must return to their home country to apply, except in extraordinary" circumstances USCIS states. It calls adjustment of status inside the United States an "extraordinary form of relief." Well the law doesn't call it that. The INA is clear. There are procedures to allow for adjustment of status to lawful permanent residence, specifically with regard to the K-1 and the K-3 Visa. The K-1 itself was created purely for that purpose. The K-3 is actually a little bit more nebulous, as I'll get to here in a moment. That said, quoting further: "The idea that this is an extraordinary form of relief is entirely baseless." - I agree with the author on that - "This language and framing are not in the statute, section 245 of the Immigration and Nationality Act (INA), which has existed for decades. The law grants the authority to do it, whichever Administration has faithfully done according to the intent of Congress, until this one." Quoting further:

 

How USCIS (mis)interprets the law. The USCIS claims that it is contrary to Congressional intent to have so many temporary residents applying to adjust to permanent residence."

 

Now with regard to Tourist Visas, Student Visas, J-1 Visas, other types of Non-immigrant visas that don't have any kind of dual intent attached to them, I can actually see the administration's argument on that, where they are saying, "look the law wasn't designed so that people can come in on a Tourist Visa and then basically meet the love of their life, get married and file for a Green Card in the United States. That's not what it was designed for. I can see the argument behind that by the way. Now that said when we get to the K-1 and the K-3, I'm a bit at a loss for words as to how this is going to play out but let me get to it. That said, quoting further: "USCIS states, quote: "Nonimmigrants, like students, temporary workers, or people on Tourist Visas come to the US for a short time and for a specific purpose. Our system is designed for them to leave when their visit is over." Now this author goes into further analysis and gets into well the realities of life. No, on USCIS talking about nonimmigrant visas like Tourist Visas and things, again I can see the argument. Don't know if I necessarily agree with it, but I can see the argument, and I definitely don't agree with the notion that "oh just anybody that is in America temporarily, if the "realities of life" somehow change, they should be able to avail themselves of the ability to gain lawful permanent residence. Maybe, maybe not. Depends on the circumstances. 

Now that said, quoting further:  "The law explicitly envisions these things happening. The K-1 Visa was designed for fiancé(e)s of US citizens to come temporarily for the purpose of getting married." Yes, and this is where I have real significant concerns about what this Administration is doing with regard to adjustment of status, especially in the K-1 context, because it's designed explicitly to come to the United States to adjust. You have 90 days in which to get married and then adjust status; that's the purpose of the Visa. Now I think that this new rule, they are either going to say that K-1's fall under "extraordinary circumstances" in and of themselves because it is explicitly stated by law that they are different, and that's true, they are a dual intent Visa that really has no other analog in the US Immigration system except maybe for the K-3. As I have discussed in other videos, the K-3 was created under the Life Act signed into law by President Clinton - important to point out, actual promulgated Congressional legislation signed by a President - not a bunch of nonsensical rule-making without Notice and Comment and just arbitrarily and capriciously saying, "oh this is an extraordinary benefit and exceptional and all of this. What are they saying, again, “extraordinary form of relief” not just saying that out of nowhere sort of out of the blue and then just saying, "oh that's the rules now". No, the Life Act was created the K-3 through legislation, the way our Constitution demands that laws actually be made. Regulations, rulemaking, yes those are legitimate in light of the law but not where you are disingenuously interpreting the law and especially not where you are not even going through the due process associated with changes in regulation, i.e. a Notice and Comment period. So again, this whole change I've got serious issues with. Now the K-3, back to the K-3, Clinton created it under the Life Act. It was created at a time where it was taking years to get Marriage Visas to the United States but you could get Fiancé(e) Visas in a matter of a few months, so they created the K-3 and they said, “okay if you are married to an American citizen” - now note, the K-3 pertains only to American citizens, you can a Non-immigrant Spouse Visa which has a dual intent component which will allow for adjustment of status, and when it was first created, it was a multi-entry Visa; I believe it was actually 10 years when it was first created and basically people could hop in and out or remain in the US in Nonimmigrant status while they were waiting their adjustment or their underlying Immigrant Visa. Now the problem we have right now and the questions that I have regarding the K-3 in terms of processing it out of, in a Consular  processing context for example here in Thailand, is Thailand is on now the list of countries that have been “paused” from getting the Immigrant spouse visas on the basis that they somehow might pose a threat of becoming a public charge i.e. a welfare recipient in the United States. I have got to be honest with you, after 20 years of doing this, I have never seen the Thais, one, they are not a huge number in terms of nationality of immigrants into the United States to begin with. The vast majority of them are legal and I mean again, in 20 years of doing family-based immigration, various types of employment-based immigration to the United States, I have not seen the Thais being the type to vastly abuse the American needs-based assistance system. But okay, this Administration in their infinite wisdom has decided that this is a problem which again I question it especially in light of the fact Thailand is our oldest ally in East Asia and has stuck with us through everything, including I think it's worth pointing out, the Vietnam War so why this is happening I don't know.

That said, I think there are multiple scenarios that can play out, bearing in mind I just saw a K-1 Visa issued recently, within the past couple of weeks. We have others processing through now; we are processing through 221g request pending further approval; we've also got cases stuck in administering processing, one in particular involving an I-601 waiver. That said, it remains to be seen how those play out, but I can see a number of scenarios playing out where really the only options for those who want to get a loved one to the United States and to attempt to get them into some sort of benefit that allows them long-term access and long-term residence in the United States, the K-1 and the K-3 maybe the most viable options under current circumstances. That said, it remains to be seen how this all plays out, so we'll certainly be keeping you updated on this channel as the situation evolves.