PUBLIC CHARGE RULE IMPLEMENTATION
On January 27, 2020, in a 5-4 decision, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction against Department of Homeland Security’s (DHS) public charge rule, allowing DHS to implement the public charge rule nationwide, except for Illinois, which a statewide injunction against the rule remains in effect.
USCIS announced that it will begin implementing the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on February 24, 2020. USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020 (instead of the original October 15, 2019), when deciding whether the foreign national is likely at any time to become a public charge under the Final Rule.
The term “likely at any time to become a public charge,” which is a ground of inadmissibility found in INA § 212(a)(4), has been redefined in four important ways:
• In determining public charge inadmissibility, the regulation shifts attention away from the petitioner/sponsor’s income as reported on the affidavit of support and re-directs it to the applicant’s age, health, family status, assets/resources/financial status, and education/skills. It defines these terms in ways that may make it very difficult for low-income, low-skilled, under-educated, elderly, or disabled applicants to overcome a public charge finding.
• Instead of being applied to those who might become “primarily dependent” on a designated list of state and federal programs, it is to be applied to those who are more likely than not to receive any of nine benefits for more than 12 months in the aggregate within any 36-month period.
• DHS has expanded the list of designated programs that can be considered when applying the public charge “totality of the circumstances” test. Prior to the regulation becoming final, the agency could only consider receipt of three cash assistance programs— Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance—as well as a Medicaid program that covers institutionalization for long-term care. The final regulation adds five new programs. It is important to note however, that only benefits received by the applicant are considered.
• The regulation allows for the posting of a public charge bond for applicants who, in the opinion of the USCIS or State Department, might otherwise fail the public charge test.
Many immigrants don’t have to worry about “public charge”, for example:
• Lawful Permanent Residents (green card holders) applying for US citizenship
• Lawful Permanent Residents (green card holders) applying to renew their expired cards
• Refugees and asylees, including people applying for asylum
• People applying for or re-registering for Temporary Protected Status (TPS)
• Violence Against Women Act (VAWA) self-petitioners
• Victims of crime or trafficking who hold a U or T visa
• People with Special Immigrant Juvenile Status, including people applying for this status
Under the final rule, DHS will also conduct a more limited public charge determination of nonimmigrants seeking a change or extension of status, by removing the future-looking requirement of the public charge determination, and only considering whether the noncitizen has received designated benefits (listed below) for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they seek to change from or extend, through the adjudication of that request.
The public benefits listed at 8 CFR 212.21(b) and 22 CFR 40.41(c), receipt of which on or after February 24, 2020 will be counted towards this threshold, include the following: (Benefits other than these are not defined as public benefits for purposes of these rules.)
1. Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
o (i) Supplemental Security Income (SSI);
o (ii) Temporary Assistance for Needy Families (TANF); or
o (iii) Federal, State or local cash benefit programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
2. Supplemental Nutrition Assistance Program (SNAP) (commonly known as "food stamps");
3. Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;
4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
5. Medicaid under 42 U.S.C. 1396 et seq., except for:
(i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
(iii) 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;
(iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
6. Public Housing under section 9 of the U.S. Housing Act of 1937.
USCIS will post updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions, as well as Policy Manual guidance on www.uscis.gov during the week of February 3. These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected.
U.S. TRAVEL BANS IMPACT CHINA & SIX OTHER COUNTRIES
On January 31, the Trump administration announced the following sweeping new travel restrictions:
Responding to the Coronavirus Situation, United States Restricts Travel From China
U.S. Health and Human Services Secretary Azar announced a ban on foreign nationals traveling from China and quarantines for U.S. citizens coming from China. The restrictions went into effect at 5:00 p.m. (EST) on Sunday, February 2.
• "Foreign nationals, other than immediate family of U.S. citizens and permanent residents, who have traveled in China within the last 14 days will be denied entry into the United States for this time," per a presidential proclamation under INA 212(f), signed by President Trump on January 31.
• Any U.S. citizen returning to the United States who has been in Hubei province in the 14 days prior to their entry to the United States will be subject to up to 14 days of mandatory quarantine to ensure they have been provided proper medical care and health screening
• Any U.S. citizen returning to the United States who has been anywhere else in mainland China in the 14 days prior to their entry to the United States will undergo "proactive entry health screening at a select number of ports of entry," and up to 14 days of "monitored self-quarantine" to ensure they have not contracted the virus and do not pose a public health risk.
Furthermore, on January 30, the World Health Organization declared that the spread of the virus is a Public Health Emergency of International Concern while, the U.S. State Department issued a Level 4 “do not travel” advisory for China.
Please note, the US Embassy Consulates in China are temporarily closed February 3-7 in accordance with Chinese government guidance. As such, when they re-open, they will likely be backlogged so visa processing could see substantial delays.
TRUMP ADMINISTRATION ANNOUNCES EXPANSION OF TRAVEL BAN
In a January 31, 2020, Presidential Proclamation, the Trump administration expanded its travel ban to place visa and entry restrictions on travelers from six additional countries, including Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania.
The expanded ban will become effective at 12:01 a.m. (EST) on February 21, 2020. The ban contains restrictions on certain (not all) immigrant visa petitions being processed abroad at U.S. Embassies but does not impact nonimmigrants. Therefore, it will not impact applications for Adjustment of Status to Permanent Resident from within the U.S., acquisition of nonimmigrant visas like B-1/B-2 tourist, F-1 student, J-1 exchange visitor, H-1B worker, etc., or of admission to the United States in those categories. However, visitors in these may still be subject to extra scrutiny, as we have seen in the case of Iranian citizens most recently.
MULTIPLE DUI WILL PREVENT YOU FROM GETTING A GREEN CARD
Today U.S. Citizenship and Immigration Services announced a new policy guidance implementing two decisions from the attorney general regarding how two or more DUI convictions affect good moral character (GMC) requirements and how post-sentencing changes to criminal sentences affect convictions and sentences for immigration purposes.
On October 25, 2019, the attorney general decided in Matter of Castillo-Perez that two or more DUI convictions during the statutory period could affect an applicant’s good moral character determination. When applying for an immigration benefit for which GMC is required, applicants with two or more DUI convictions may be able to overcome this presumption by presenting evidence that they had good moral character even during the period within which they committed the DUI offenses. The term DUI includes all state and federal impaired-driving offenses, including driving while intoxicated, operating under the influence, and other offenses that make it unlawful for an individual to operate a motor vehicle while impaired.
Also on October 25, 2019, the attorney general decided in Matter of Thomas and Thompson that the definition of “term of imprisonment or a sentence” generally refers to an alien’s original criminal sentence, without regard to post-sentencing changes. Post-sentencing orders that change a criminal alien’s original sentence will only be relevant for immigration purposes if they are based on a procedural or substantive defect in the underlying criminal proceeding.
“In response to two decisions from the attorney general, USCIS has updated policy guidance on establishing good moral character for immigration purposes,” said USCIS Deputy Director Mark Koumans. “As the attorney general directed, this guidance enhances public safety by ensuring that USCIS adjudicators consider driving under the influence convictions with the appropriate standard of scrutiny.”
U.S. Citizenship and Immigration Services (USCIS) announced today that current beneficiaries of Temporary Protected Status (TPS) under Syria’s designation who want to maintain their status through March 31, 2021, must re-register between Sept. 23 and Nov. 22, 2019.
Re-registration procedures, including how to renew employment authorization documents (EADs), have been published in the Federal Register and are available at uscis.gov/tps.
IMPORTANT CHANGES FOR E-1 AND E-2 TREATY VISAS FOR FRENCH CITIZENS
Effective August 29, 2019, the Department of State will issue E-1 and E-2 visas for French citizens with a maximum validity of 15 months.
This is a stark change from the previous 5 years validity that was accorded to this visa category. No explanations have been attributed for this drastic change.
Employment Authorization for Paroles New Regulation
U.S. Citizenship and Immigration Services (USCIS) today issued policy guidance in the USCIS Policy Manual to address its discretion to grant employment authorization to foreign nationals who are paroled into the United States, including those who are otherwise inadmissible.
Certain foreign nationals may be paroled into the United States for urgent humanitarian reasons or significant public benefit. Parolees are not entitled to employment authorization solely because they are paroled into the United States, but instead must establish eligibility and apply for employment authorization. USCIS will only consider employment authorization for parolees when, based on the facts and circumstances of each individual case, USCIS finds that a favorable exercise of discretion is warranted.
“Directly addressing loopholes that encourage the exploitation of our immigration system is the only way forward,” said Acting Director Ken Cuccinelli. “Responsible stewardship of our discretionary authorities enhances our ability to provide relief to those who lawfully qualify for it. With that in mind, USCIS is taking action within its discretionary authority by only granting employment authorization to parolees after consideration of all relevant factors on a case-by-case basis. This decision is in response to the national emergency at the southern border where foreign nationals are entering the United States illegally, as well as based on a review of USCIS adjudicatory practices over the past few years.”
USCIS is taking action to strengthen affected programs, such as parole, within its discretionary authority. Through this update, USCIS is providing adjudicators with guidance specific to parole-based employment authorization focusing on officers’ discretion and responsibility to grant employment authorization only after careful consideration of all relevant factors on a case-by-case basis. The policy update aligns USCIS’ guidelines for issuing discretionary employment authorization based on parole with current immigration enforcement priorities.
USCIS continues to adjudicate all petitions, applications, and requests fairly, efficiently, and effectively on a case-by-case basis to determine if they meet all standards required under applicable laws and regulations.
This policy update does not affect individuals paroled into the United States under the International Entrepreneur Rule. Such parolees are authorized to work based on their parole under current Department of Homeland Security regulations governing the International Entrepreneur parole program.
New Trump Administration Rule Lets ICE Rapidly Deport Undocumented Immigrants Without Due Process
Under a new Department of Homeland Security (DHS) rule, undocumented immigrants must prove their residency in the United States or they could face expedited deportation. In some cases, the expedited deportation could be carried out before the person has an opportunity to come before a judge. The Trump administration announced the fast track deportation process on July 22, 2019.
What is Fast Track Deportation?
In the past, fast track deportations were typically limited to individuals arrested within two weeks after crossing the border and within 100 miles of the border. The process has now been expanded to apply to anyone who has been in the United States illegally for less than two years, with very few exceptions. According to the DHS, the expedited removal process is another step the administration is taking to address the “ongoing crisis on the southern border.”
With the expedited removal process, ICE has broad powers to deport an individual without allowing that individual the opportunity to see an immigration judge. Depending on how quickly the person is deported, the person may not even have time to find an immigration lawyer.
The policy places the burden of proving that an individual has been in the United States for a minimum of two years on that person. In other words, if an individual does not carry detailed documentation at all times that prove he/she has been in the country for more than two years, he/she will be unable to challenge an expedited removal because he/she will not be allowed to obtain the proof before he/she is detained and deported.
Unfortunately, until the administration provides more guidance, agents arresting and detaining immigrants have extremely broad discretion in what they deem adequate proof that the person has been in the country for more than two years. In other words, the immigration officer is serving as the officer, prosecutor, and judge since the person is never allowed to enter a courtroom. Anyone deported under the expedited removal rule does not have the right to appeal the deportation.
Are There Exceptions to the Expedited Removal Rule?
Unaccompanied minors are not subject to the new rule. There is also an exception for immigrants who apply for asylum, claiming they fear persecution if deported. A credible fear hearing and determination on an asylum request could delay immediate deportation.
Texas Service Center to Begin Accepting Form I-129 for Certain H-1B Petitions
On May 20, 2019, the Texas Service Center will begin processing Form I-129, Petition for a Nonimmigrant Worker, for certain H-1B cap-exempt petitions requesting:
A change in previously approved employment;
A change of employer;
A continuation of previously approved employment without change with the same employer;
A change of status to H-1B; or
Notification to a U.S. Consulate or inspection facility (port of entry or pre-flight inspection).
This does not include H-1B petitions for cap-exempt entities, petitions that are cap-exempt based on a Conrad/Interested Government Agency (IGA) waiver under Immigration and Nationality Act Section 214(l), or petitions where the employer is located in Guam or the beneficiary will be performing services in Guam.
The Texas Service Center will share this workload with the California Service Center, Vermont Service Center, and Nebraska Service Center to balance workloads and provide flexibility as USCIS works towards improving processing times and efficiency.
Petitioners filing any of the above H-1B petitions should file their Form I-129 at the address indicated on the Direct Filing Addresses for Form I-129, Petition for a Nonimmigrant Worker page. Starting July 19, 2019 , USCIS may reject any of these petitions that are filed at the wrong service center.
TN Pilot program for Canadians seeking J-1 nonimmigrant status
USCIS and U.S. Customs and Border Protection (CBP) are extending the joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA) through April 30, 2020. Last year, the USCIS California Service Center and the CBP Blaine, Washington, port of entry (POE) announced this pilot program, which was scheduled to run from April 30, 2018, through Oct. 31, 2018, and was later extended for six months.
This pilot program allows, but does not require, Canadian citizens to request that USCIS remotely adjudicate their petitioning employer’s Form I-129, Petition for a Nonimmigrant Worker, or Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, prior to their arrival or when they arrive at the Blaine POE. USCIS continues to encourage these Canadian citizens and their petitioning employers to email firstname.lastname@example.org with feedback on their experience with the pilot program.
The US Embassy Jerusalem, Tel Aviv Branch has confirmed that E-2 visa applications will be accepted as of Wednesday, May 1, 2019.
A formal ceremony marking this historic accomplishment is tentatively scheduled to take place on Monday, May 6, 2019, with Ambassador Friedman as the keynote speaker. The Israel-America Chamber of Commerce will sponsor the first US and Israel Treaty Investor Seminar immediately following the convocation, with participation from the US Consul, Tel Aviv Branch, and Director of the Israel Population and Immigration Authority. Further information may be found at https://www.e2visa.co.il/.