This concept is fairly new, but faced with numerous refusals of visas from American or European embassies, many Haitian nationals are wondering about the various possible remedies against decisions that they consider unfair or unjustified.
Haiti is happy to welcome foreign citizens to the country for a stay of no more than 90 days per calendar year, with a simple fee-based entry Visa – and an exit visa or residency permit required for those that stay over the 90 day threshold. Convexly, the laws of United States have made travel into the United States much more complicated – limiting travel to those with valid Visas of the appropriate category, and even those with Visas have different rules based on the type of Visa and citizenship of the Visa holder.
There are 185 types of Visas to the United States. Most people are familiar with the B1/B2 “visitor” visa; and really do not understand visas beyond the Visitor visa. However, the number of visas for entering the US is a sign of the complexity of the US immigration system, and the political impetus to control immigration through the “us versus them” social identity theory. Visas can be broken into two primary categories: the nonimmigrant visa and the immigrant visa.
The immigrant visa is rather self-explanatory; it is a visa for people intending to relocate from their country to the US, to remain in the US. The most familiar immigrant visas are family-based visas, including spousal visas and visas for immediate family members and adopted children (parents, children, and siblings). Immigrant visas through chain migration only extend one generation (for example, an applicant cannot apply for a grandparent to be a beneficiary), and in most cases can be a rather lengthy process. We currently have one sibling immigrant case that has been in process 20 years; a 10-year wait is not unusual for siblings, and the spousal visa process in Haiti is currently tracking at approximately 4 years from application to approval.
A non-immigrant visa is a visa for applicants that do not intent to “immigrate,” or remain and reside in the U.S. Non-immigrant visas include visas for tourism, business, family matters, study, employment, transit, and more. The legal requirements of these visas are very specific to allow visas to only be granted to applicants that do not intend to remain in the U.S. The presumption is that the applicant does intend to immigrate (remain), and the burden of proof is on the applicant to prove that they do not intend to immigrate, but the intention is to return to their country of origin.
During the pandemic the Embassy continued to process immigrant visas, albeit at a significantly reduced pace and quantity, and was closed to all non-immigrant visas. Mid-pandemic the Embassy opened for the renewal of non-immigrant visas through the interview-waiver system, and then slowly opened for the processing of student visas (including F, M, and J classes) and petition-based employment visas (H, L, P, R classes). Worldwide it is reported by USCIS (the US Customs and Immigration Service) that 65% of US Embassies have not resumed processing new B visas, but an announcement was made at the end of Q2 that some Embassies will resume processing B visas in Q3; unfortunately, we have not seen the US Embassy in Haiti make this announcement.
While the US Embassy in Haiti is processing the renewal of B visas through the interview waiver process, it has been estimated that approximately 90-95% of the visas renewal applications result in the cancellation of the visa without prejudice and request for a 221(g) interview (under the Immigration and Nationality Act). A 221(g) interview is an interview wherein the applicant must appear in-person at the Embassy to answer questions or provide additional information in order to process the renewal of their Visa. Arguably, the request for a 221(g) interview is facially contradictory to the interview-waiver process wherein the applicant is allowed to present their passport with Visa for renewal based on past “performance” and migration history.
There are many questions surrounding the request for the 221(g) interview. Predominately, it is observed that the Embassy is seeking updated employment and economic information, social information (such as marital and family status), and other related information at the interview. Successful applicants report providing employment and economic status, family information, and receiving a renewed Visa. However, more often than not, Visas that are not renewed are related to marital and family status.
The review of marital and family status as it relates to the renewal of visas is not just an updating of records of social import, but is also an identification and confirmation of the location and legal status of each family, and family member. Given the difficult living conditions in Haiti, and the migration of many Haitians to other countries – including the US, many families have immediate family members residing outside of Haiti. The opening of TPS by the US following the earthquake in 2010, and again in 2021, allowed for Haitians within the US to seek legal status in the US at the time of the publication of TPS; however, it has greatly impacted family members that have remained in Haiti.
It is estimated that approximately 46,000 Haitians applied for TPS following the earthquake of 2010. The Senate Foreign Relations Committee estimates that the TPS designation of June 29, 2021, could protect as many as 150,000 Haitians from having to return to Haiti in the political and security crisis. As previously noted, it is the presumption of the US Consulate Services that all people seeking to visit the US intend to immigrate and remain; and it is the burden of the applicant to prove that they do not have the intention to remain in the US. Therefore, visa renewal applicants that have immediate family members in the US currently on TPS will find themselves facing a nearly impossible burden of proof to convince the Consulate officer that they do not intend to migrate and remain in the US with their family.
Further complicating the renewal of visas is the number of Haitian children born in the US. While the Constitution of the US allows that all persons born in the US are US Citizens, the creation of “anchor babies” by aliens has long been a highly-controversial subject. An anchor baby is a child born to a noncitizen mother in a country that has birthright citizenship, especially when viewed as providing an advantage to family members seeking to secure citizenship or legal residency. As the Trump administration illuminated the social outcry against and legal requirements against aliens and immigrants becoming a public burden, the political focus highlighted the implications of anchor babies. Anchor babies born to aliens are immediately a public burden by their fundamental legal definition – they are not attached to a tax-paying US citizen and thereby it is the responsibility of the US government to provide for the child’s rights of education, medical care, and housing until they reach the age of adulthood.
Creating additional legal complications is the frequency in which the birth of anchor babies is paid for with public funds; where the mother uses Medicaid or public welfare funds to pay the hospital and medical bills for the birth of the child. These outstanding bills are the responsibility of the alien parent. Often the Haitian parent of a child born in the US is faced by a consular officer explaining that the parent will have to repay the state welfare system for the birth and medical costs of the child – to the tune of $15,000, $20,000 or more. The parent’s visa cannot be renewed if the bill has not been paid, and thereby the Visa is cancelled.
The change in humanitarian circumstances in Haiti continues to put US immigration policy in the spotlight. At the same time, the shifts in US political policy toward immigration continue. Immigration into the US is at a historic high, with over one million immigrants entering the US each year, according to PEW research. According to the Migration Policy Institute, as of 2020, there are 705,000 Haitian immigrants in the US. It has been estimated that there are over 100,000 new B visa applications waiting in the queue since the Embassy closed for COVID on March 17, 2020, and with an increasing number of visa renewal cancellations, the Embassy back-log upon opening will be insurmountable. The grants of TPS for family members within the US and the continuing push of migration on the southern border will directly impact the granting and renewal of visas for those family members that are still in Haiti. The nonrenewal of visas will have a long-term impact on Haitian businesses, as many on tourist and other visas enter the US for business-related purposes. Additionally, the implications on the separation of families due to the nonrenewal of visas, as well as the inexplicably long family-based immigration processes, will be extremely detrimental for generations to come.
Contact us for more information, we will be happy to advise you on the various remedies allowed.