Dahlia Walker-Huntington | Setting the US immigration record straight

With the new US administration, there have been numerous changes to laws, policy and norms in America. These changes have been fast and furious in US immigration law and policy, and have sent shockwaves throughout the United States with the images on the nightly news of SWAT teams descending on homes and apartments. Immigration law is a highly complex area of law in America, and all of the new changes increase the challenges to practitioners in this area.

The changes have led to trepidation among the immigrant community in America and people outside the US who have ties to America. Sadly, these changes and proposed changes have also led to a misinformation industry.

The advent of social media allows misinformation to spread like wildfire and people are allowed to post their opinions that often present as fact and become mainstream thinking. There are also incentives for misinformation to be posted on social media to drive likes and subscribers to various pages.

WhatsApp messages, videos and articles about immigration have been circulating that are misleading, and some even false. The disconcerting part of this misinformation is that some of it has made its way into mainstream media, leading to confusion and people acting against their best interests.

Let me address three areas of concern.

1. Providing US status to send remittances in Florida

On January 27, the Florida legislature met in a special session in Tallahassee called by the Governor, Ron DeSantis – to address immigration in Florida. The governor proposed an immigration bill that included, among other things, a provision to require anyone sending money via money transfer to prove their US immigration status. The governor’s session and, by extension, his bill were terminated by the Republican-led Florida legislature the same day it was heard. The legislature, on that same day, proceeded to call its own session and pass its own immigration bill that did not include the governor’s remittance provision – among other items he wanted. The governor threatened to veto the legislature-led immigration bill.

On February 13, at the end of a third special session, the governor of Florida signed a compromised immigration bill that did not include any remittance provision. This means that nothing has changed in Florida in terms of who can send remittances or use money transfer services.

The governor’s proposal was just that, a proposal. It was never a rule, and the proposal/bill needed to become a law (passed by the legislature and signed by the governor) to effect change. It was not embraced by the legislature because, among other reasons, they believed that it would require federal law to bring about such a change to remittance procedures.

Spreading this misinformation that persons need to prove US immigration status before sending remittances can have a chilling effect on undocumented persons in America who will believe they are unable to send remittances home to their families.

2. Dual citizenship

A WhatsApp message that purports to relay an account of a dual citizen (Jamaican or Sierra Leone – depending on which version you saw) who had her US passport taken by a Customs and Border Protection (CBP) officer because she used her native passport to land in her home country and her US passport to land in America – is misleading. While a CBP officer, under very limited circumstances, can request the US Department of State to revoke a citizen’s passport or confiscate same, it does not apply in this instance.

The credibility of this fact pattern is suspect because there is no law against what the person is alleged to have done - leaving and returning to America on their American passport. In fact, the law requires that, if you are a US citizen, you must use your US passport to depart and enter the United States.

There are several advantages to dual citizenship and using two passports. For example, if you are a Jamaican-American citizen and possess two passports, and if you land in Jamaica using your US passport, you land as an American citizen. The Jamaican immigration officer will stamp your passport and permit you a limited time to remain in Jamaica and indicate that you are not permitted to work. It matters not that you were born in Jamaica. Therefore, if you wish to remain in Jamaica for an unlimited period and/or if you wish to engage in work in Jamaica, you need to use a Jamaican passport to enter Jamaica. A person can also apply to the Jamaican government for a status known as “unconditional landing” if they decide they want to remain in Jamaica beyond the period assigned to them (as a foreign citizen) at the airport by the immigration officer.

Conversely, and this cannot be stressed enough, if you are a US citizen, you must use your US passport to land in the United States, same as you must leave the US using your US passport. https://travel.state.gov/content/travel/en/legal/travel-legal-considerat...

3. Form i-407 surrender green card

There are Jamaicans who are Lawful Permanent Residents of the United States and who do not spend most of their time in America. If you are a green card holder and you cannot live full-time in America, you should apply for a re-entry permit. This re-entry application, if approved, will be granted for one to two years without jeopardising permanent residence status. It allows you to legally be outside of the US for the length of the permit.

The CBP officer at any port of entry to the United States is authorised to ask about your travel history and how long you have been outside of the US. Some people believe that, with a green card, travelling to the US every six months and staying a few days preserves their US residency – it does not. If the CBP officer observes that you are outside the US more than you are in the US – they can take you to secondary inspection. During secondary inspection, the CBP officer can suggest/encourage you to surrender your green card by signing Form I-407 – Record of Abandonment of Lawful Permanent Resident Status. Surrendering your card via Form I-407 is a voluntary action and you are not obligated to sign the form.

However, please note that, if you do not sign Form I-407, the CBP officer has the option to refer you to an immigration judge to determine whether you should lose your residency or not, i.e. place you in removal (deportation) proceedings. You would then have a trial before an immigration judge on the issue. The CBP officer can also admit you to the United States with a warning.

Also, note that, if you surrender your green card, you need to be the beneficiary of a new petition to regain US residency – you cannot reclaim your surrendered residency.

It is incumbent on everyone to fact-check information before sharing and to ensure that your sources are valid, as, when it comes to immigration, the implications can be life-altering.

Dahlia Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States. Send feedback to info@walkerhuntington.com