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Effective October 15, 2019

USCIS Issues Final Regulation on
Inadmissibility on Public Charge Grounds

DHS published a new public charge rule that dramatically changes the standard of whether an applicant for admission to the U.S. or for adjustment of status is likely to become a "public charge." "Public charge" is not defined in the immigration law, but since 1999, the term has meant a person who is or is likely to become "primarily dependent" on "public cash assistance for income maintenance" or "institutionaliz[ed] for long-term care at government expense." The rule takes effect on October 15, 2019 (see below), unless lawsuits already filed enjoin its implementation.

The rule is significant and is expected to result in an increase of denials for both immigrants and nonimmigrants. It is expected to deter persons from seeking benefits for which they are eligible, even if they are exempt from this public charge rule, because of the fear it could disqualify them for permanent residency or a visa.

Specifically, the rule affects persons seeking admission to the U.S. who could be deemed "inadmissible" by determining whether they are "more likely than not at any time in the future" — a forward looking test — to become a public charge. These persons include: adjustment of status applicants, nonimmigrants being inspected for admission to the United States at a port of entry (POE); persons with an immigrant visa at a POE; lawful permanent residents (LPRs) returning to the United States after six months or more; and persons who are seeking admission after entering without inspection.

For nonimmigrants seeking either a change or extension of status, USCIS will looking at whether the beneficiary received in the past — a backward looking test — one or more public benefits, as defined in the regulation "for more than 12 months in the aggregate within any 36-month period" before USCIS adjudicates the change or extension of status request.

The new rule is not supposed to affect LPRs applying for citizenship through naturalization.

Changed Standard for Admissibility

The rule defines "public charge" and "public benefit" by using a totality of circumstances approach for making a public charge inadmissibility determination that weighs the foreign national's age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors. Some factors will be more heavily weighed than others (see below).

Public Benefits Specified

The relevant public benefits specified in the new rule are:

  • Any federal, state, local, or tribal cash assistance for income maintenance, including:
    • Social Security Income (SSI);
    • Temporary Assistance for Needy Families (TANF);
    • Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the state context, but which also exist under other names);
  • Supplemental Nutrition Assistance Program (SNAP);
  • Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD;
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
  • Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
  • Public housing under section 9 of the U.S. Housing Act of 1937.

Effective Date

It is important to note that, unless enjoined by lawsuits already filed (see below), the effective date of the rule is October 15, 2019, and should not be applied until then. USCIS should not consider it to be a negative factor if the person received the relevant benefits prior to the rule's effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy. Therefore, it is expected that pending applications prior to the effective date should not be affected or adjudicated under the new rule.

New Form I-944, Declaration of Self-Sufficiency

Adjustment of status applicants will need to submit a new Form I-944, Declaration of Self-Sufficiency, along with Form I-864 Affidavit of Support. The new rule does not remove the Form I-864 from the filing requirements, as the I-864 is a factor in USCIS's public charge analysis.

Form I-944 will contain the information regarding the additional factors to be considered by USCIS. USCIS officers will now consider the I-944 factors as well as a sufficient Form I-864. If USCIS makes a public charge determination against the applicant, there is now a public charge bond application, Form I-945, where USCIS can issue at a minimum a $8,100 bond so that the applicant can be admitted.

While nonimmigrants are not required to submit a Form I-944, there will be a new question on both Forms I-129 and I-539 about receipt of public benefits as a nonimmigrant as of the date of filing and through adjudication.

Factors to be Considered

USCIS will weigh heavily certain factors against the applicant, including where:

  • A foreign national who is not a full-time student and is authorized to work cannot show current employment, recent employment history, or a reasonable prospect of future employment;
  • A foreign national has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019;
  • A foreign national has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured, and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition;
  • A foreign national has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

USCIS will weigh these factors in the applicant's favor:

  • A foreign national has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250 percent of the Federal Poverty Guidelines for his or her household size;
  • A foreign national is authorized to work and is currently employed in a lawful industry with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of his or her household size;
  • A foreign national has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

Foreign Nationals Exempt or Who May Obtain a Waiver

The rule does not apply to U.S. citizens, even if the U.S. citizen is related to a noncitizen who is subject to the public charge ground of inadmissibility. Also, the rule does not apply to the following groups who are either exempt from being determined a public charge, or may get a waiver for public charge when applying for a green card or other benefits with USCIS. These include:

  • Refugees
  • Asylum applicants
  • Refugees and asylees applying for adjustment to permanent resident status
  • Amerasian Immigrants (for their initial admission)
  • Individuals granted relief under the Cuban Adjustment Act
  • Individuals granted relief under the Nicaraguan and Central American Relief Act
  • Individuals granted relief under the Haitian Refugee Immigration Fairness Act
  • Individuals applying for a T Visa
  • Individuals applying for a U Visa
  • Individuals who possess a T visa and are trying to become a permanent resident (get a green card)
  • Individuals who possess a U visa and are trying to become a permanent resident (get a green card)
  • Applicants for Temporary Protected Status
  • Certain applicants under the LIFE Act Provisions

Similarly, DHS will not consider certain benefits given to military families. Nor is DHS supposed to consider certain Medicaid benefits where benefit was: (1) for the treatment of an "emergency medical condition," (2) as services or benefits provided in connection with the Individuals with Disabilities Education Act, (3) as school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law, (4) by aliens under the age of 21, or (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.

The Departments of State and Justice are also expected to align this new USCIS rule with their policies and rules.

Litigation Already Pending

The new public charge rule has already been met with litigation by 13 states (California, Washington, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island) seeking injunctive relief, with cases pending in the U.S. District Court in the Northern District of California, and U.S. District Court for the Eastern District of Washington. Litigation efforts seek injunctive relief based upon the fact that the new rule unlawfully expands the definition of "public charge," in violation of federal immigration statutes. Specifically, they argue:

"The Department's new definition of "public charge" is contrary to its longstanding meaning in the Immigration and Nationality Act."

"The Rule is arbitrary, capricious, and an abuse of discretion because — among other reasons — it reverses a decades-old, consistent policy without reasoned analysis, offers an explanation for the Rule that runs counter to the overwhelming weight of evidence before the Department, and disingenuously promotes as its purpose self-sufficiency in the immigrant population when, as abundantly shown by the administrative record, its effect is precisely the opposite."

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Visa Bulletin for September

Many Visa Categories Now "Unavailable"
through September 30, 2019

At an August 16 liaison meeting with the State Department, the American Immigration Lawyers Association was made aware that following a review of the dates listed in the September 2019 Visa Bulletin, the entire EB-3 category has immediately been made "unavailable" for the remainder of FY2019. This means that the annual limits have been reached on these categories and additional numbers are unavailable until the beginning of the next fiscal year, October 1, 2019. The "unavailable" status is not limited to EB-3 China and EB-3 India but also includes the EB-3 Worldwide, EB-3 El Salvador, Guatemala, and Honduras, EB-3 Mexico, Philippines, and EB-3 Vietnam categories.

It is also important to note that several other categories are listed as "unavailable" starting in September for the remainder of the fiscal year including the entirety of EB-4 and EB-4 Religious Workers categories, as well as EB-1 India. (While EB-1 China is not listed as unavailable, it retrogressed to 1/1/2014 due to increased demand, and EB-1 Worldwide is now at 10/1/2017.)

So, what exactly does "U" mean? It means "unauthorized," or, in other words, that visa numbers are not authorized for issuance because they are "unavailable." It is not uncommon for visa numbers to become unavailable at the end of the fiscal year. By doing so, the State Department and USCIS put a moratorium, of sorts, on the filing of visa and adjustment-of-status applications in order to better assess longer term visa availability. It is expected that many of these categories will return to their August priority dates on October 1, 2019.

While cases subject to "U" cannot be approved at interviews, applicants who have been scheduled for interviews should still appear. Normally, the interview moves forward and if the application is deemed approvable, the officer will request a visa number and that request will subsequently be sent to the Visa Office "pending demand file" at the State Department. Once this occurs, the visa number will be automatically authorized for use by USCIS, effective the first day of the month in which the applicant's priority date becomes current.

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Know Your Rights
If ICE Comes Knocking at Your Door!

Immigration enforcement raids dominated the news in July and August. While new ICE raids in 10 cities in July did not materialize, a raid in Mississippi on August 7 resulted in the detention of some 680 undocumented immigrants in what a federal prosecutor described as a record-setting operation, "the largest single-state immigration enforcement operation in our nation's history." The U.S. Attorney for the Southern District of Mississippi confirmed that arrests took place at seven sites in six different cities in Mississippi.

In this environment, it is important to know your rights and how to exercise them. Unfortunately, ICE is notorious for detaining or attempting to detain people without the proper authority to do so. Instead of going through the required steps to obtain that authority, ICE relies on intimidation and a lack of understanding of the law. The following is a summary of your rights in certain situations.

What do I do if ICE comes to my house?

  • Do not open the door!
  • Ask to see a warrant. Have the officer slip it under the door or hold it up to a window. If ICE produces a document, check to make sure it is a judicial warrant. A warrant of removal (Form I-205) does NOT entitle ICE to enter your home, as it is not a real warrant. A judicial warrant will: include the name of the court at the top of the page; be signed by a judge; indicate the person for whom they are searching; and list the address and date.
  • If ICE produces a document that seems to meet these requirements, check to make sure the information on the warrant is exactly correct — the date is today's date, the name is spelled correctly, the address is your home.
  • If there is a judicial warrant and it contains correct information, have the person or persons listed on the warrant step outside and shut the door behind them. Do not run or fight. Have a family member contact an attorney immediately.
  • You have the right to remain silent even if ICE has a proper warrant.

What do I do if I am stopped by police or ICE?

  • You have the right to remain silent and should state that you are exercising your right to do so.
  • Unless you are at an international border or airport or are required by your visa (such as a B1/B2), you do not have to answer questions relating to where you were born, whether or not you are a citizen, or how you entered the country.
  • You do not have to consent to a search of your personal belongings.
  • You have the right to contact an attorney. If you are in ICE custody, note that an attorney will not be provided for you; however, you can retain one at your own expense.

What can I do in preparation?

  • Make sure you have a copy of your important documents in a safe place that another family member knows about. This includes things like your passport, green card, birth certificate, etc.
  • Retain proof of how long you have been here, including documents such as taxes, pay stubs, photos, etc. There are certain forms of relief that require you to prove how long you have been in the United States.
  • Memorize the phone number of someone who understands your situation so that you can contact them if needed.
  • If you are given an Alien Registration Number (A Number) memorize it and share this with a family member. This will make it much easier for them to locate you should you be detained.
  • Make a plan for what will happen with your children should you be detained. Who will take care of them? Have you authorized someone else to pick them up from school? If your children are U.S. citizens, have you obtained their passport??
  • Contact an attorney to understand your options and to see if there is anything you can do now to obtain status or prevent removal.

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DHS Expands
"Expedited Removal"

Created in 1996, expedited removal is a process by which low-level immigration officers can quickly deport certain noncitizens who are undocumented or have committed fraud or misrepresentation. Since 2004, immigration officials have used expedited removal to deport individuals who arrive at our border, as well as individuals who entered without authorization if they are apprehended within two weeks of arrival and within 100 miles of the Canadian or Mexican border.

On July 22, 2019, DHS announced that it is significantly expanding expedited removal to apply throughout the United States to individuals who have been in the United States for less than two years. The new interpretation became effective July 23, 2019.

Thus, beginning on July 23, DHS is applying expedited removal to all noncitizens who are inadmissible under to INA §§212(a)(6)(C) and (a)(7) and who have not been continuously physically present in the United States for at least two years, no matter where in the country ICE or CBP (U.S. Customs and Border Protection) encounters them. This significant expansion will mean that DHS officers in the interior of the country will be able to bypass immigration court and put noncitizens directly on a fast track to removal.

However, on August 6, three organizations with members who are subject to the new rule (AILA, the ACLU, and law firm of Simpson Thatcher & Bartlett LLP), filed suit in the U.S. District Court for the District of Columbia claiming that the new rule violates the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act, and federal immigration laws. Later they filed a motion seeking a preliminary injunction to prevent DHS from continuing to apply the rule while the case is being litigated.

Public comments on the notice, which can be submitted online, will be accepted through September 23.

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Immigration Bills to Watch

Congress has adjourned for its annual summer recess and will be returning after Labor Day to address a number of immigration bills. The following are worth watching:

Fairness for High Skilled Immigrants Act of 2019 (H.R. 1044) passed the House of Representatives on July 10; its Senate companion bill (S. 386) remains pending. H.R. 1044 would amend the immigration laws by eliminating the per-country numerical limitation for employment-based immigrants and increase the per-country numerical limitation for family-sponsored immigrants, without increasing the overall available visa numbers. Proposed changes to the per-country limitations, in practice for employment-based immigrants, will impose what amounts to at least a seven-year moratorium on all employment-based immigration categories except for perhaps Indian and Chinese nationals in these categories. This is because there are an estimated 1,000,000 Indian and Chinese nationals with approved petitions who have been waiting years for visa availability. Without per-country limitations, Indians and Chinese nationals with early priority dates would get their immigrant visas first.

Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act (S. 2091) was introduced in the Senate in early July. The bill would, among other things, eliminate the per-country numerical limitation for employment-based immigrants, increase the number of employment-based green cards available each year, exempt certain health care workers and certain spouses and children from counting against the worldwide limitation on the number of employment-based visas, and allow spouses and children of E, H, and L visa holders to pursue employment. Unlike the bill that passed by the House of Representatives, the BELIEVE Act is more generous and proactively addresses how changes to the per-country numerical limitations will adversely impact foreign nationals waiting years for their green cards.

Other bills before Congress address the Flores Settlement Agreement, employment authorization for H-4s, TPS for Venezuelans, and stabilization of the Northern Triangle.

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EB-5 Green Cards

Minimum Investment Amounts for Investor Visas
to Increase to $1.8 Million and $900,000

USCIS published its final regulations governing EB-5 investor visas on July 24; the new rules go into effect on November 21, 2019. The major change created by the new regulations is to increase the minimum investment amounts that foreign investors must invest to obtain an EB-5 green card. Starting on November 21, 2019, the minimum investment amount for investments outside Targeted Employment Areas (TEA) will increase to $1.8 million (from the current $1 million) and the minimum investment amount for investments located in a TEA will increase to $900,000 (up from $500,000). Regional Center investment are normally in TEAs so the minimum pooled investment will become $900,000. The final rule also provides that the minimum investment amounts will automatically adjust for inflation every five years.

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Needed for Some J-1 Waivers

Venezuela to Start Issuing
"No Objection Statements"

Officials at the Embassy of Venezuela have confirmed that it will begin issuing "no objection" statement letters for Venezuelans seeking a waiver of the two-year foreign residency requirement that attached to their J-1 visa status. (No-objection letters are the first consular services to be provided by the new government.) Officials are currently working on a web-based "NOS" application process, and expect that process to be available in September. This is welcome news to the many Venezuelans who have been subject to the "skills list" or received funding for their J program from the Venezuelan government for which a no-objection letter is a prerequisite for obtaining a waiver recommendation. Those individuals have been unable to obtain certain nonimmigrant visas, such as Hs and Ls, and have been unable to adjust their status to green card holders even if married to a U.S. citizen.

The Embassy is currently maintaining a consular registry, and some 350 people are already registered. Venezuelan nationals are encouraged to register at https://us.embajadavenezuela.org.

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Justice Department Moves to Decertify
Immigration Judges Union with NLRB

In early August, the Department of Justice (DOJ) petitioned the Federal Labor Relations Authority (FLRA) in an effort to strip immigration judges of their right to be represented by a union. In the petition, DOJ claims that the National Association of Immigration Judges (NAIJ) is no longer a valid union because the judges are managers who can't form unions under the Federal Service Labor-Management Relations statute. DOJ cited a series of "factual and legal developments" it says have added managerial weight to the judges' authority and rendered moot the FLRA's 2000 ruling rejecting the Executive Office for Immigration Review's (EOIR) bid to break up the union.

The National Association of Immigration Judges (NAIJ), the recognized collective bargaining representative of immigration judges, has called DOJ's claim absurd and said that DOJ's actions are designed to silence judges and their union. Clearly, decertifying the NAIJ is an effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority. Ironically, the Administration has made every effort to limit the judges' managerial authority and independence, micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas.

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The following additional items may be of interest to our readers:

Trump Expands Executive Order on Venezuela: An August 5th Executive Order (EO) further extends the scope of a 2015 and subsequent EOs impacting Venezuelans. The latest EO directs that all property and interests in property of the Government of Venezuela that are in the U.S. are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in. The EO also extends the ban on immigrant and nonimmigrant entry into the U.S. of certain Venezuelan nationals who have been determined by the Secretary of the Treasury to have materially assisted or otherwise provided support of any person included on the list of Specially Designated Nationals and Blocked Persons or entry of a person who has acted on behalf of any person whose property and interests are blocked by the EO.

Immigrant Youth File Class Action Lawsuit Challenging USCIS Denial of SIJ Applications: A district court granted a preliminary injunction in a class action lawsuit filed by immigrants in Washington state challenging USCIS's policy to deny Special Immigrant Juvenile Status (SIJS) for youth who filed their applications after turning 18 years old.

TPS Extended to 3/31/2021 for Syrians: DHS announced the extension of Syria's TPS designation for 18 months. The extension permits current Syrian TPS beneficiaries to re-register for TPS and remain in the U.S. with work authorization through March 31, 2021.

Processing Time Delay Lawsuit: Two immigrant advocacy groups allege that USCIS has failed to produce documents that could explain work permit delays, and urged a D.C. federal court to force USCIS to hand over the information. Overall processing times have increased 91 percent from fiscal year 2014 to FY 2018.

U.S. and Canada Implement Preclearance Agreement: DHS announced the implementation of an agreement with Canada that allows CBP to conduct full preclearance in rail, ferry, and cruise ship environments in Canada. CBP currently conducts preclearance operations at eight Canadian airports.

Videos Replace Interpreters at Hearings: EOIR has replaced in-court interpreters at master calendar hearings with video advisals in New York and Miami, for pro se respondents.

Motel 6 Agrees to Pay $10 Million in Revised Settlement for Sharing Guest Data with ICE: Motel 6 and ICE agreed to a $10 million settlement agreement in a class-action lawsuit filed on behalf of guests who stayed at Motel 6 and whose personal information was provided by employees to ICE agents.

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