On August 25, the Washington Post (among other outlets) reported the U.S. Department of State (DOS) will be revoking up to 200,000 nonimmigrant B-1 (for temporary business travelers) and B-2 (for tourists) visas its consular officers issued to aliens between 2016 and 2026 who subsequently applied for asylum in the United States. Here’s what’s happening, what’s likely to happen next, and why it matters.
“Immigrant” and “Nonimmigrant” Visas
Section 222 of the Immigration and Nationality Act (INA) splits foreign nationals seeking admission to the United States into two groups and provides a process by which the U.S. government may issue visas to each.
Section 222(a) (“Immigrant visas”) establishes the steps foreign nationals abroad who want to come and live in the United States permanently, as “immigrants” (that is, with “green cards”), must satisfy to obtain immigrant visas.
Section 222(c) is captioned “Nonimmigrant visas; nonimmigrant registration; form, manner and contents of application”, and it sets forth a basic process that a foreign national abroad must comply with to obtain the visa necessary to be admitted to the United States temporarily, as a nonimmigrant, under any of the various nonimmigrant categories defined in section 101(a)(15) of the INA.
But as the nonpartisan Congressional Research Service (CRS) explains:
An individual who applies for either type of visa may be issued or refused the visa before entering the United States. Securing either type of visa serves as evidence of permission to travel to the United States but without a guarantee of admission at a U.S. port of entry.
Foreign nationals become “aliens” under the INA when they arrive here, but as CRS implies, they are questioned and scrutinized by two different U.S. government officials before they can hit our streets: first by the DOS consular officer abroad; and a second time by a CBP officer at the port of entry when they arrive (lawfully) in this country.
That’s important to keep in mind as you consider the rest.
Revocation of Visas
While separate B-1 or B-2 nonimmigrant visas can be issued to foreign nationals, generally the physical visa document itself (known as a “foil”) is issued as a joint B-1/B-2 visa. And while foils may only be good for a single entry to this country, B-1/B-2 visas are usually good for multiple brief entries over a 10-year period from the date of issuance — hence why DOS is reportedly revoking visas going back to 2016.
Logically, what Congress allows DOS to give it also empowers DOS to take away, and that’s true in the visa context.
Section 221(i) of the INA, “Revocation of visas”, specifically permits consular officers or the secretary of State to revoke, in their discretion, “a visa or other documentation” issued to any alien at any time, which “invalidates the visa or other documentation from the date of issuance”.
Under that statute, DOS must notify DHS as soon as the visa is revoked, leading to one of two consequences for the holder of the visa.
First, if the holder is a foreign national not then present in the United States, the DOS revocation gives CBP officers a heads up that they should not permit that individual to board transport to the United States and should deny that individual admission at the port of entry.
Second, if the holder of the now-revoked nonimmigrant visa is already present in the United States, it notifies ICE that the alien is removable under section 237(a)(1)(B) of the INA, as an alien “whose nonimmigrant visa ... has been revoked under” section 221(i) of the INA.
“Affirmative Asylum”
It’s also important to note that aliens can seek asylum from either an immigration judge (IJ) in DOJ’s Executive Office for Immigration Review (EOIR) or a USCIS asylum officer (AO), depending on whether those aliens are in removal proceedings or not.
AOs adjudicate “affirmative” asylum applications filed by aliens present in the United States, regardless of status, but only if they aren’t in removal proceedings.
DOS’s current revocation plans appear to be squarely focused on those aliens who: (1) were admitted to the United States on B-1 or B-2 visas; (2) filed affirmative asylum applications with USCIS; (3) have not received an asylum officer decision on such application; and possibly (4), are still in status.
The only exception to that rule is for unaccompanied alien children (UACs) encountered by DHS who are placed into removal proceedings and sent to the U.S. Department of Health and Human Services to be placed with “sponsors” here (usually a parent or other family member). Those UACs can seek asylum from both an AO and an IJ at the same time.
If AOs don’t grant (or deny) an affirmative application, and the applicant is out of lawful status or came illegally, the USCIS officers will “refer” the alien’s application to an EOIR IJ by placing him into removal proceedings, at which point the alien can ask the IJ to again consider his claim as a “defensive” asylum application.
In addition, other asylum applications filed by aliens placed into removal proceedings by DHS, but who never sought asylum from USCIS, are considered “defensive”, as well.
While nothing prevents DOS from revoking the visa of an alien already in removal proceedings with a pending defensive asylum application, such action would be largely meaningless because an additional ground of deportability under section 237(a)(1)(B) wouldn’t render the alien any more removable.
Consequently, DOS’s current revocation plans appear to be squarely focused on those aliens who: (1) were admitted to the United States on B-1 or B-2 visas; (2) filed affirmative asylum applications with USCIS; (3) have not received an AO decision on such application; and possibly (4), are still in status.
As USCIS noted in 2023:
In the past decade, about 79 percent of affirmative asylum applicants self-reported the status in which they entered the United States before applying for asylum. Of those who provided a response, 32 percent reported having entered on B-2 visas (tourists) ... and 5.8 percent reported having entered on B-1 visas (temporary business visitors).
Given that USCIS reports it’s sitting on a pile of 1.4 million-plus affirmative asylum applications currently awaiting adjudication, that suggests that more than 418,000 applications pending with the agency were submitted by aliens who were lawfully admitted as nonimmigrants on B-1 and/or B-2 visas, though there’s no way to know how many are still in status.
“Nonimmigrant Intent”
To obtain and be admitted to the United States on a B-1/B-2 nonimmigrant visa, an alien must prove to both DOS and CBP he has “a residence in a foreign country which he has no intention of abandoning” and is “visiting the United States temporarily for business or temporarily for pleasure”.
Consequently, if an applicant for the visa or for admission were to tell a consular or CBP officer that he is planning on coming to the United States in order to apply for asylum — a status that places the applicant on a path to a green card and ultimately citizenship — the visa and admission would be denied.
Given that such visas may be issued for multiple entries over a decade, however, it’s possible a B-1/B-2 nonimmigrant may have obtained that visa at a time he had no intention of seeking asylum in the United States.
But unless an affirmative asylum applicant’s “well-founded fear of persecution” (a statutory precondition for asylum under sections 101(a)(42)(A) and 208(b)(1)(A) of the INA) only arose after the applicant’s last admission to this country, the alien would have had to have lied to the CBP officer at the port about his “nonimmigrant intent” at the time he was admitted.
Credibility and Falsehoods
Not surprisingly, the law takes a dim view of aliens who lie under oath to a federal officer to obtain either a visa or admission. It’s a crime punishable as a felony (with a possible sentence of up to five years) under 18 U.S.C. §1001, a felony (subject to imprisonment for up to 10 years) under 18 U.S.C. §1546(a), and a misdemeanor (punishable by up to six months’ imprisonment for a first offense) under section 275(a) of the INA — and a serious impediment to being granted asylum.
Asylum applicants bear the burden of proving they are eligible for that protection, which requires them to establish that their testimony and other evidence is “credible”.
To aid adjudicators in making credibility determinations, Congress amended the INA in 2005 to add a new section 208(b)(1)(B)(iii) to the INA, “Credibility determination”, which states, in pertinent part:
Considering the totality of the circumstances ... a trier of fact may base a credibility determination on the ... the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made) ... the consistency of such statements with other evidence of record ... and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim. [Emphasis added.]
While one could argue an alien in fear for his life and freedom may lie to a consular officer about his intentions in coming to the United States to escape such harm back home, the time for that alien to come clean is when he is standing in front of a CBP officer at a U.S. port — not days, weeks, or months later, when filing an affirmative application with USCIS.
What Happens Next?
The question thus becomes how DHS plans on reacting to the reported DOS visa revocations.
Possibly not coincidentally, on July 28, USCIS published an interim final rule (IFR) in the Federal Register to amend the regulations that govern AOs’ consideration of affirmative asylum applications.
As that IFR explains: “Under the rule, USCIS permits an AO to refer an application without interview, which includes cases where an alien is barred from a grant or does not merit a grant of asylum as a matter of discretion”. (Emphasis added.)
DOS’s actions are overdue, because if more than 400,000 aliens applied for and received temporary visas by lying about the fact they never intended to go home, it’s a glaring failure and an abuse of our laws.
In its recent opinion in Matter of P-A-C-, the Board of Immigration Appeals (BIA) reaffirmed that asylum adjudicators may consider “the circumstances surrounding an applicant’s entry or attempted entry into the United States” in weighing discretion and (saliently) held that “fraudulent conduct that falls short of the grounds for mandatory asylum denial” is a valid adverse discretionary factor.
If USCIS or AOs were to refer without interview asylum applications by B-1/B-2 aliens whose visas were revoked by DOS on discretionary grounds to IJs, the immigration court would reconsider discretion de novo and grant those aliens protection in the exercise of discretion — meaning they would not suffer any “due process” consequences.
Doing so would serve two purposes: Not only would it allow AOs to remove hundreds of thousands of cases from their backlog, but it would also prevent aliens who weren’t truthful about their intentions in coming to the United States as nonimmigrants from receiving a “second bite at the asylum apple”, one from the AO, and the other from the IJ.
At this point, how USCIS will react to the State Department’s revoking the nonimmigrant visas of aliens who filed affirmative asylum applications is speculation. Regardless, DOS’s actions are overdue, because if more than 400,000 aliens applied for and received temporary visas by lying about the fact they never intended to go home, it’s a glaring failure and an abuse of our laws.