Implications of Potential DACA Termination During the COVID-19 Pandemic

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Before the end of June 2020, the U.S. Supreme Court is expected to deliver a ruling about the future of DACA. This ruling will have deep impacts for the 649,070 immigrants with DACA status across the country. It is suspected that the Supreme Court will favor the Trump Administration and rule to terminate the DACA program.

The Deferred Action for Childhood Arrivals program was created by President Obama in 2012 after considerable pressure from immigrant rights advocates. Since its conception, DACA was not intended to be a permanent solution, but rather, a “temporary stopgap measure,” as President Obama explained. The program helped individuals who were brought to the United States before the age of 16 and who were younger than 31 years of age as of June 15, 2012 (the date the program was announced). Individuals with DACA status have a two-year deferment from deportation, a Social security number, and the right to work legally in the U.S. This status is renewable every two years.

On September 5th, 2017, the Trump Administration announced that DACA would begin phasing out, pushing for Congress to establish a replacement program. Since 2017, immigrants have been unable to apply for DACA and can only renew if they are already recipients. There are concerns that immigrants with DACA status will be unable to renew their statuses after June.

Even if the Supreme Court rules to terminate or pause DACA this June 2020, President Trump still has the authority to allow individuals with DACA status to continue receiving DACA benefits. It is possible that the President may allow for renewals to continue, even after June 2020, until a new permanent solution is established.

A recommendation to individuals with DACA status is to try renewing DACA statuses before the end of June, in case the ruling does establish termination. DACA renewals received earlier than 150 days and up to 365 days in advance may be accepted. At the end of March 2020, 23,020 DACA recipients with April, May, and June expirations were reported to have yet to apply for renewals of their protections. If DACA recipients lose their ability to renew protections, about 1 in 5 individuals with DACA statuses in the U.S. will lose their protections by November 2020.

The COVID-19 pandemic is a unique period of time, and a termination of DACA will have deep impacts on the U.S.’s management of the pandemic. Today, more than 200,000 DACA recipients are considered to be essential workers, including 28,200 nurses, personal care aides, and medical assistants, according to the Center for American Progress. Can the U.S. afford to lose this medical support during this pandemic?

On a positive note, immigrant-rights advocates continue to push for a permanent solution in Congress that will benefit noncitizens. The HR-6 Act, the American Dream and Promise Act of 2019, would offer 2.5 million immigrants eligibility for protections and a pathway to citizenship. This is a bill that was passed by the House of Representatives, but has not yet been heard by the Senate. Perhaps, if DACA is paused or terminated, the HR-6 Act will gain more momentum.

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USCIS Opening Portland Oregon’s Field Office and Resuming Some Public Services on June 4th, 2020

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On May 27th, USCIS announced that it will reopen some domestic offices and resume non-emergency public services on or after June 4th. As a response to the novel COVID-19 pandemic, USCIS had temporarily suspended routine in-person services at its field offices, asylum offices, and application support centers. USCIS has been following the Centers for Disease Control and Prevention’s guidelines. Now, USCIS lists individual office closures and amended hours on its website here.   USCIS Field Office in Portland Oregon is set to reopen on June 4th meaning green card and citizenship applicants and their Immigration Lawyers in Portland, Oregon should be ready for their interviews to be scheduled soon.

Please click here for more information regarding visits to USCIS facilities. You can also click here for updates regarding reopenings and modified hours of operation.

Note that USCIS requires that you do not visit an office if you experience any of the following:

  • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
  • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
  • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.

If you need assistance with an emergency service at any time, call the USCIS Contact Center.

Rescheduling Interviews and Appointments

USCIS will reschedule green card and citizenship interviews and appointments for applicants and petitioners who previously had scheduled appointments. If you believe that you should have received a rescheduling notice, you may always contact the USCIS Contact Center.

During these interviews and appointments, visitors are limited to the applicant, one representative, one family member, and one individual providing disability accommodations. The applicant should arrange to have their interpreter available by phone. If you had other appointments, USCIS indicates that you should reschedule through the USCIS Contact Center once field offices are open to the public.

Once services begin to reopen, offices will limit the daily number of appointments and interviews in order to ensure social distancing, allow time for cleaning, and reduce waiting room occupancy. Appointment notices will include information on safety precautions that visitors of USCIS facilities must follow. USCIS will not penalize you if you reschedule due to illness—if you feel sick, follow the instructions on your appointment notice to reschedule your appointment for when you are healthy.

Reopening Asylum Offices

The interview process at asylum offices will be slightly modified to fit with social distancing guidelines. Asylum offices will conduct video-facilitated asylum interviews, with the applicants sitting in a room and the interviewing officer sitting in another room. Asylum offices will use all available technology, such as mobile devices provided by the agency, to ensure that the officer, applicant, interpreter, and representative are still able to fully participate in the interview while practicing social distancing.

For affirmative asylum interviews, applicants must bring all immediate family members listed as dependents on the application as well as an interpreter if the applicant does not speak or understand English. If the applicant is a minor, he or she can also have a representative, witness, individual providing disability accommodations, or “trusted adult” attend the interview.

For non-detained credible or reasonable fear interviews, family members listed on the interview notice must accompany the applicant to the interview. While representatives may attend these interviews, USCIS encourages these individuals to participate telephonically. USCIS can provide professional interpreters for these interviews as well.

USCIS asylum offices will automatically reschedule asylum interviews that were cancelled due to the temporary closures. Asylum applicants will receive a new interview notice with a new time, date, and location for their interviews after USCIS reschedules this interview. Asylum applicants will also receive information about safety precautions before attending interviews.

 

Naturalization Ceremonies during the COVID-19 Pandemic?

If your naturalization ceremony was postponed, USCIS will send notices to reschedule it. To limit the exposure of attendees, the ceremonies will likely be shorter. Rather than playing videos during these ceremonies (which previously occurred), attendees will receive a flyer with information and links directing them to the videos. During the shorter ceremony, only the legally-required portions will occur. Only the naturalization candidate and individuals providing assistance to disabled persons may attend these naturalization ceremonies.

 

Application Support Centers (ASC)

USCIS will automatically reschedule any necessary ASC appointment that was canceled and send a new appointment letter in the mail with specific safety requirements. With the exception of military members, individuals who appear at a date or time other than that listed on the ASC appointment notice will face processing delays.


Entering USCIS Facilities


According to the USCIS website, visitors may not enter a USCIS facility if they:

  • Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
  • Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
  • Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
  • Visitors may not enter the facility more than 15 minutes prior to their appointment (30 minutes for naturalization ceremonies).
  • Hand sanitizer will be provided for visitors at entry points.
  • Members of the public must wear facial coverings that cover both the mouth and nose when entering facilities.
  • Visitors may be directed to briefly remove their face covering to confirm identity or take their photograph. There will be markings and physical barriers in the facility; visitors should pay close attention to these signs to ensure they follow social distancing guidelines.
  • Individuals are encouraged to bring their own black or blue ink pens.

Contact our Immigration Lawyers with any questions you may have about the reopening of USICS FIeld office here in Portland, Oregon.

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Significance of HEROES Act on Immigrants in the United States

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Significance of HEROES Act on Immigrants in the United States

The U.S. House of Representatives recently introduced the Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act) as their “phase four” 2019 novel coronavirus (COVID-19) stimulus and relief package. The HEROES Act, which House Representatives narrowly passed on May 15, 2020, by a 208 to 199 vote, includes a package of $3 trillion in tax cuts and spending to alleviate the negative health and financial impacts of the pandemic. This package also includes financial relief to state, local and tribal governments, an extension to enhanced unemployment benefits, debt collection relief, and direct cash payments to households.

This Act is unique to previous acts, as it addresses many of the faults of the previous bill that excluded immigrants. Six key provisions are included in the HEROES Act that will directly benefit immigrants and immigrant families who were neglected by the previous CARES act.

Cash Payments to Immigrants and their Families

The HEROES Act will provide stimulus money that was previously unavailable by the CARES Act. Direct payments will be issued in the amount of $1,200 for an individual, $2,400 for joint-filers, and $1,200 for up to three dependents with a maximum of $3,600. Undocumented immigrants would be also eligible for the first round of $1,200 checks sent out in April. Immigrants who are eligible for Medicaid will also have access to additional health care benefits.

Relief and Protections for Undocumented Essential Workers

According to the HEROES Act, undocumented immigrants working in essential fields such as health care will be temporary shielded from deportation, as their statuses will be “frozen” under deferred action. They will be able to apply for employment authorization throughout the pandemic. Moreover, unauthorized immigrants will be able to obtain work permits—and may hire these noncitizen immigrants without penalization.

Releasing Low Risk Immigrants from Detention

Immigration and Customs Enforcement will be required to re-evaluate the files of detained immigrants and release those who are not perceived to be a threat to society or who are not necessarily subject to mandatory detention. The HEROES Act pushes ICE to apply low-cost alternatives to detention for low-risk immigrants (such as the use of ankle bracelet monitors).

Additionally, the bill requires detention facilities to provide free and unlimited soap to detainees, as well as phone and video call accessibility to communicate with family and legal representatives.

Facilitating the Arrival and Stay of Medical Professionals  

The HEROES Act would speed up visa and green card processing for all foreign medical workers who seek to research or work in fields related to combatting COVID-19. Consulates and U.S. Embassies would be required to prioritize visa interviews for these workers. Emergency appointments would have to be appointed in-person or through a remote platform as a teleconference. Furthermore, foreign-national doctors who have completed their residency in the U.S. are eligible under the HEROES Act to receive permanent residency through an expedited process.
This Act also grants nurses, doctors, and medical researches more flexibility in regards to where they work, which will allow doctors to work where they are most needed without the restrictions under visa controls that previously existed. This means that rather than applying for a new visa, medical professionals with H-1B statuses can transfer between hospitals without re-applying for new H-1B visas.

Medical students are also impacted: they will be able to transfer rotations within their host institution, while also receiving compensation for their work during this pandemic. These students will be able to work outside of their approved program as long as their work relates to COVID-19.

Health Benefits for Immigrants Regardless of Status

The HEROES Act also allows for undocumented immigrants to obtain testing, and treatment, and vaccination (once available) related to COVID-19 without cost, even if the individual does not have health insurance. This extension was not available to immigrants under the CARES Act. The USCIS has already affirmed that treatment in relation to COVID-19 will not make an immigrant a public charge.

While this legislation was passed in the House of Representatives, it is unlikely that it will pass in the Republican-majority Senate or get signed by President Trump, as the White House recently issued a statement opposing the legislation. Even if this act does not directly pass, it is possible that certain provisions of the Act will reappear in the future, perhaps as a bipartisan stimulus and relief bill later in the summer.

Feel free to contact our Portland Immigration Lawyers in Portland, Oregon for answers to your questions at our email address: [email protected] or call us at (866) 691-9894.

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USCIS Proposed Changes to I-864 Affidavit of Support

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USCIS Proposed Changes to Affidavit of Support    

 

USCIS has recently proposed significant changes to the Form I-864 (Affidavit of Support) and other related forms I-864A and I0864EZ. The first proposed change is for U.S. citizens and lawful permanent residents who are sponsoring a foreign spouse or relative for green cards to disclose detailed bank account information to the federal government. This includes the banking institution’s name, the account number, routing number, and account holder names. Note that U.S. legislation does not authorize USCIS to collect such information.

 

As a reminder, the Form I-864 (Affidavit of Support) is required for most immigrants seeking a green card in the U.S. based on marriage and family petitions in order to demonstrate that they will be financially supported and not become a public charge. This form is also sometimes required for immigrants seeking green cards based on employer sponsorship. Normally, sponsors must provide evidence of their income by submitting copies of their recent federal tax transcript or return, as well as any other financial statements or evidence of future outcome. The new USCIS proposal would change this process.

 

Almost a year ago on May 23rd, 2019, President Trump issued the Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens. In the presidential memo, President Trump emphasized that individuals financially sponsoring alien green card applicants must completely fulfill their commitments under the law. In response to this memo, USCIS focused on better informing sponsors and household members on the implications of their financial obligations. For instance, language in these forms has been modified to ensure clarity regarding sponsor obligations and consequences if the sponsor’s responsibilities are not met. These are included in an extended “Sponsor’s Certification” section as well as a “Household Member’s Contract, Statement, and Certification.” Moreover, the draft of this new form informs sponsors of a civil penalty imposed by the USCIS if the sponsor does not inform the USCIS within 30 days of moving. Additionally, this new Affidavit of Support also asks sponsors to list people who not actively living with the sponsor (such as college students that are not living at home), which will consequently increase the income requirement as the household size increases.

 

Forms I-864 will also allow sponsors to provide information about previously submitted Affidavits and an optional submission of a credit report as evidence. USCIS is also proposing to require U.S. citizens and permanent legal resident sponsors to notarize forms I-864, I-864A, and I-864EZ by a notary public prior to submission to USCIS. These proposed changes will create a burden for sponsors. This may deter them from accepting to be sponsors, which will likely impede some individuals from immigrating.

Finally, the new form requires that the sponsor agree to allow the Social Security Administration (SSA) and other agencies to share information with the Department of Homeland Security (DHS) and the Department of State. If the alien applicant applies for means-tested public benefits, the sponsor’s privacy can be waived to a greater extent. The new form is stricter in its warning that improperly completed forms, or forms missing proper evidence, may be denied.

 

No effective date has been published, and this will come with the final rule. USCIS accepted public comments for these revisions during a thirty-day period that ended on May 11, 2020.  Because the comment period for the rule is closed, the state will now review public comments and publish a final rule within the coming months. Note that if passed, this proposal will only impact applications filed on or after the effective date of the rule.

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Immigration Lawyer Portland

USCIS Relaxed Immigration Policies during Covid-19 Coronavirus Pandemic

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USCIS Relaxed Immigration Policies during Covid-19 Coronavirus Pandemic

On March 18th, 2020, U.S. Citizenship and Immigration Services temporarily suspended in-person services in h ­opes to slow the spread of COVID-19. USCIS plans to reopen offices on or after June 4th, 2020, unless there is an extension in public closures. USCIS continues to process green cards, work permits, asylum applications, and other paper-based requests. To adapt to new limited circumstances informed by COVID-19, USCIS has recently been flexible in certain immigration policies in order to avoid service delays and disruptions for the benefit of applicants and petitioners. Listed below are new relaxed policies and immigration flexibilities implemented by USCIS to accommodate for constraints caused by the pandemic.

Waiving Green Card Interviews
While family and employment-based green card applicants typically attend in-person interviews at USCIS field offices before their green cards are approved, these interviews have been canceled until at least June 3rd. However, there are wide reports that USCIS has relaxed this green card interview requirement for employment-based green card applicants during this pandemic as a means of avoiding dense delays in the future.

Note that no formal policy has been released by USCIS confirming that the interview requirement will be waived, but this appears to have been occurring as many employment-based green card applicants with canceled interviews have had their green card statuses approved. Because no formal statement has been released yet by USCIS, as of May 7th, there is no guarantee that this will be the case for all employment-based green card applicants, however, it seems that as long as all other documentation is present, USCIS will adjudicate permanent residence applications.

While some marriage-based green card applicants have also been approved without interviews, it is likely that the interview process will not be waived, because of the importance in screening cases for fraud. Note that this waiving of appointments does not apply to citizenship applications.

Reusing Previous Biometrics  

For extensions of benefits like work permits, USCIS will reuse biometrics (that is, required submission of fingerprints and a digital photo) collected during previous applications. Often, however, USCIS will issue original work permits without any new collection of biometrics, reusing previously-collected biometrics collected on other occasions, such as upon entry to the United States.

EAD Renewal Application Flexibilities  

In resonance with other biometric-related measures taken by USCIS to reduce delays in adjudication, USCIS announced flexibility for Employment Authorization Documents (EAD) renewal applications by reusing prior biometrics for renewal applicants.

Relaxed “Wet” Signature Requirement    

USCIS has announced that it will temporarily accept filings with electronically-reproduced copies of original signatures instead of normally required “wet” signatures for all benefit forms and documents dated March 21 and beyond from both attorneys and applicants. USCIS has stated that it is safer for clients and attorneys to avoid in-person meetings. So long as an original document contains an original handwritten signature, it can be scanned, faxed, photocopied or similarly reproduced. USCIS may request copies of such original documents in the future, so employers are advised to retain copies.  Note that USCIS does not allow any electronic signatures on its forms or petitions, so the petitioner or applicant must have access to a printer and a scanner to reproduce a signed paper form for USCIS filing. USCIS forms are protected from alteration, so even if the petitioner or applicant attempts to do so, they cannot be electronically signed.

Extensions of Certain Deadlines

USCIS has also extended the time by which applicants are able to respond to an RFE, NOID, NOIR, and NOIT if the notice was issued between March 1st and May 1st by a period of 60 days following the date of issuance.

Flexibility in the Visa Waiver Program
In the midst of the COVID-19 pandemic, many foreign nationals who were in the U.S. have been stranded and unable to leave. Normally, most individuals can visit the U.S. for a 90-day period without a visa according to the Visa Waiver Program. However, many of these foreign national travelers in the U.S. have overstayed their 90-day stays due to flight cancellations and the recent Presidential Proclamations that restrict entry from the Schengen Area countries, the U.K, and Ireland. CBP and USCIS are assisting travelers to obtain a supplementary 30-day extension called “Satisfactory Departure.” These foreign national individuals may request this extension from the USCIS by contacting the USCIS Contact Center.

Otherwise, such foreign nationals may request “Satisfactory Departure” by contacting the Deferred Inspection unit of Customs and Border Protection (CBP) at the international airport where they entered the country or the international airport closest to their current location. These extension processes are crucial for visitors who have overstayed their 90-day periods, because an overstay of this period completely will prevent visitors from utilizing the Visa Waiver Program in the future.

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Coronavirus (COVID-19) Impact on Immigrant Applicants (Questions & Answers)

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Coronavirus Pandemic (COVID-19) Impacts on Immigrant Applicants  

Recent measures taken by the United States government, in an effort to halt the spread of coronavirus (COVID-19), have disrupted immigration services and proceedings. Here is a brief overview of commonly asked questions regarding how this pandemic will affect noncitizens, particularly green card and naturalization applicants.

 

Impact on Interviews and Appointments

Since March 18th, USCIS has temporarily suspended routine in-person services through at least May 3 in efforts to slow the spread of COVID-19. USCIS provides emergency services for very limited situations; in order to schedule an emergency appointment, contact the USCIS Contact Center. USCIS staff will continue to perform duties that do not involve any physical contact.

Please note that you can create an account with the USCIS Online Portal in order to view your current application case status, your case history, the next steps for service requests, and you can receive case updates by text or email. Sign up here. Doing this will allow you to stay up-to-date on your application.

 

Q: Is my interview still scheduled?

USCIS offices will send notices with instructions to applicants and petitioners with scheduled interview appointments impacted by this closure. Once normal operations are able to be resumed, they will automatically be rescheduled.

If you have yet to hear from your consulate office, call your consulate office. You can check the USCIS Field Offices page to see if your field office has reopened before reaching out to the USCIS Contact Center.

 

Q: What should I do if my interview is cancelled for my adjustment of status application?

Wait for USCIS to contact you with further instructions. Signing up with the USCIS Online Portal will allow you to get immediate access to information regarding rescheduling.

 

Q: What if I had an InfoPass appointment?
If you had an InfoPass appointment with a Field Office, you must reschedule your appointment through the USCIS Contact Center.

 

Q: Because USCIS offices are closed, what will happen to my biometrics appointment and how will this impact my application?  

USCIS has temporarily suspended all biometrics appointments. When USCIS resumes normal operations, your biometrics appointment will be automatically rescheduled within 90 days. You can call 800-375-5283 if you do not receive this rescheduled appointment.

 

Q: Because USCIS offices are closed, what will happen to my asylum appointment?

If you have an asylum application pending with USCIS, your case status can be checked online (you will need the receipt number mailed to you after you filed your application). If you need to contact your local asylum office, you can use the Asylum Office Locator.

Q: Because USCIS offices are closed, when will I be able to reschedule my naturalization ceremony?
USCIS will automatically reschedule your ceremony. A notice for your scheduled ceremony should be received by mail. If, in the next 90 days, you have not received this notice, reach out to USCIS Contact Center.

 

Q: If I am out of the country, am I able to switch consulate offices for an interview?

Call the National Visa Center (NVC). Switching consulate offices depends upon the circumstances.

 

Impact on Processing times

Q: How will the processing time of the application be impacted if my application is submitted? If my green card or naturalization application is submitted now, how will the processing time of the application be impacted?

All visa processing times are dependent upon the spread of COVID-19. If USCIS has informed you about rescheduling your biometrics or interview appointment, please follow the instructions in the sent document. All USCIS-related domestic delays can be kept track of here.

 

Note that all applications turned into USCIS are still being processed at their respective lockbox, but this process is taking longer than usual given the circumstances. Work and travel permits cannot be processed without a biometrics notice. Depending on how long the closures remain, this will add to the 5-8 months processing times for a work and travel permit, and to the 11- to 14-month processing time for a green card.

 

Travel-Related Questions

Q: If I am overstaying my visa due to travel restrictions or limited flights, how will this impact my application?  

Under usual circumstances, nonimmigrants must depart the United States before their authorized period of admission expires. However, USCIS recognizes that nonimmigrants may unexpectedly remain in the U.S. beyond their authorized period of stay. USCIS notes the following:

  • Apply for an Extension: Most nonimmigrants can file an application for extension of stay (EOS) or change in status (COS) to avoid the immigration consequences of COVID-19.
  • File in a Timely Manner: if a nonimmigrant’s timely-filed EOS or COS application is pending, he or she will generally not accrue an unlawful presence.
  • New Flexibility for Late Applications: USCIS may excuse a nonimmigrant’s failure to timely file an extension/change of status request if the delay was due to extraordinary circumstances. Under current regulations and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS may excuse the failure to timely file if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate in its discretion on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.
  • New Flexibility for Visa Waiver Entrants: Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant up to 30 days to allow for satisfactory departure. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.
  • If you would like additional information on late requests to extend or change status, you can look over 8 CFR 214.1(c)(4) and 8 CFR 248.1(c). In addition, please see Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions and changes of status.

Q: How can I get passport photographs if there is a stay-at-home order?  

The State Department has this tool to help you crop a photograph of yourself that will satisfy the passport photo requirement. There are many websites online (such as this one) that also mail your photographs to your home address.

 

Impact on USCIS Requests
Q: What approaches are USCIS taking to increase flexibility?  

On March 27, 2020, USCIS announced that it would allow an extra 60 days for a timely response to all Requests for Evidence (RFE) and Notices of Intent to Deny (NOID) dated between March 1, 2020, and May 1, 2020. This flexibility also applies to certain Notices of Intent to Revoke (NOIR) and Notices of Intent to Terminate (NOIT) regional investment centers, and certain filing date requirements for Form I-290B, Notice of Appeal or Motion. USCIS will not issue new RFEs or NOIDs to account for the extended period of time. Rather, it will not take any action on the RFE or NOID until more than 60 days beyond the deadline.

 

When to Apply?

Q: If I have yet to submit my application, will my I-130 be impacted?

While processing times will increase, USCIS offices still accept I-130 applications.

 

Q: When should I submit my marriage-based green card application?

USCIS still accepts marriage-based green card applications.

 

Impact on Health Care

Q: How will being diagnosed with COVID-19 impact my green card or naturalization application?  

Care received at the emergency room, at a community health clinic, or at a free clinic does not trigger the Public Charge rule. USCIS issued a recent statement clarifying that any treatment or preventative service related to COVID-19 will not negatively affect any individual as part of a Public-Charge analysis.

 

Q: How will getting tested for COVID-19 impact my green card or naturalization application under the Public Charge rule?

You will not be impacted. Getting tested for seeking treatment for COVID-19 would not count against a would-be immigrant under the Public Charge rule. Accessing discounted care at hospitals, clinics, or other facilities will not be listed as a Public Benefit. Here is a list of government benefits that are considered during a Public Charge assessment.

 

Q: If I am receiving unemployment benefits, will my green card or naturalization application be negatively impacted under the Public Charge rule?  

Unemployment insurance is not included in the government’s list of categories of benefits that make someone a potential public charge. If you do rely on additional government benefits that are included on the government’s list, it is recommended that you attach a letter of explanation to your future application to note how the coronavirus pandemic affected your ability to work and conduct your usual activities.

 

Impacts of Relief Bill on Visa Applicants

The Coronavirus Aid, Relief and Economic Security, or CARES, Act states that immigrants are excluded from the stimulus payments, with one exception. Green-card holders are the only exception and will receive stimulus payments if they qualify. Otherwise, immigrants (including immigrants who are in the U.S. on work visas and pay taxes) are not eligible for the payments. Additionally, American citizens who are married to immigrants without Social Security numbers will not receive stimulus checks as part of the government’s COVID-19 relief efforts.

 

Impacts on International Students

Q: If I am an international student with an F-1 visa, but want to leave the U.S. for longer than five months, will this violate my F-1 status?

Current F-1 regulations state that a student may reenter the U.S. only after a temporary absence no longer than five months.

The DHS Student and Exchange Visitor Program (SEVP) is issuing updated guidance, confirming that international students with an active status will not be subject to this five-month rule. The only exception is for students enrolled in full-time study abroad programs.

 

Q: Will my SEVIS record be negatively impacted if I am doing remote learning abroad?

Your F-1 record will not be impacted during the temporary COVID-19 accommodation period, because you will be taking online courses as a student.

 

Q: I am an F-1 student who has been experiencing severe economic hardships because of the pandemic. What can I do?

F-1 students who are experiencing economic hardships because of unexpected circumstances, such as the pandemic, can request employment authorization to work off-campus by filing Form I-765 Application for Employment Authorization and Form I-20, along with any additional supporting materials. For more, click here.  

 

Such students would be eligible to apply for off-campus employment authorization if they are:

  • A citizen of a country specified in a Federal Register notice;
  • Have been lawfully present in the United States for the period indicated in the Federal Register notice;
  • Have reported on time to their Designated School Official and been enrolled in a Student and Exchange Visitor Program-certified school since the special situation;
  • Currently maintaining F-1 status; and
  • Experiencing severe economic hardship.

USCIS may also discretionarily authorize special student relief and suspend certain requirements that would normally be mandatory for individuals from certain parts of the world that the secretary of Homeland Security identifies as experiencing emergency circumstances.

 

Impact on H-2A Workers

Q: How will the recent temporary changes to H-2A requirements impact me, if I am a foreign worker in the U.S. with a valid H-2A status?

The DHS and USCIS have published a temporary final amendment on some H-2A requirements so that U.S. agricultural employers may avoid disruptions in lawful agricultural-related employment, to protect the nation’s food supply chain, and to decrease the effects of COVID-19 on national public health. Under this temporary rule, foreign workers in the U.S. with H-2A status can be employed by H-2A petitioners with valid temporary labor certification immediately after USCIS receives the H-2A petition.

Q: I am an H-2A worker but am nearing my three-year maximum allowable period of stay in the United States. However, I cannot leave due to travel restrictions related to COVID-19. What should I do?

USCIS is temporarily amending its regulations to allow H-2A workers to stay beyond the three-year maximum period. These temporary changes will support lawful employment of foreign temporary and seasonal agriculture workers during the COVID-19.

Note: only once this petition in approved and published in the Federal Register, H-2A workers will be able to stay in the U.S. for a period of time validated by the Temporary Labor Certification. If DHS determines that future circumstances illustrate a continued need for changes to H-2A regulation, DHS will issue a new temporary final rule in the Federal Register to amend the termination date.

If you have questions about how these new changes may affect your case, please contact us  on our website, by email at [email protected] or give us a call at  (866) 691-9894.

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How Does Trump’s Executive Order affect your Immigration Case?

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Proclamation of April 22nd, 2020: The Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market during the Economic Recovery Following the 2019 Novel Coronavirus Outbreak  

On Wednesday, April 22nd, President Trump signed an executive order to suspend the issuance of new green cards to prevent immigration into the United States for at least 60 days. These immigration changes will affect thousands of immigrant applicants seeking to permanently move to the United States. The notoriously slow process of gaining permanent residency will be further slowed for individuals seeking to remain in the country.

The order explicitly articulates that its purpose is to ensure that unemployed American citizens, of all backgrounds, will be the first in line for jobs as the economy reopens. President Trump noted that it will, “preserve our healthcare resources for American patients” afflicted by COVID-19.

This executive provision is directed specifically towards foreign nationals seeking to obtain legal permanent statuses who are outside of the U.S. at the time of the order. Those who will be impacted by the suspension of entry include: aliens outside of the U.S. on April 22nd, 2020; aliens without an immigration visa that is valid on April 22nd, 2020; and aliens without an official travel document other than a visa (such as a transportation letter, advance parole document, etc…) that would permit them to travel to the U.S. for legal entry and admission. It is likely that the most-impacted category of aliens will be those seeking green cards through their employers or on account of their professional value.

Notably, the ban exempts aliens who enter the U.S. on an immigrant visa and who identify as physicians, nurses, or healthcare professionals. Aliens entering the U.S. to perform medical research or other research related to COVID-19 are also exempt from the provision. Any spouse or unmarried child under 21 of such an alien is also permitted to join him or her. This legislature will not apply to individuals coming into the U.S. temporarily, such as students or agricultural workers. It will not apply to individuals who obtained visas before April 22nd, 2020. U.S. refugees and asylum seekers will not be impacted by the executive order. The proclamation details a comprehensive list of aliens to whom this proclamation does not apply.

As of now, guest worker programs are not impacted by this provision, so technology workers, farm laborers, and workers in the food industry will continue to be able to apply and receive visas. In a statement, President Trump noted that he would ask his Administration to review guest-worker programs to assess if any further steps need to be taken to protect citizen workers.

After the 60-day period established by the executive order, the President will decide whether the order will be renewed or adapted. If the American economy struggles to recover from the current shutdown, according to the President, another order may be enacted to extend the ban or add supplemental restrictions to further deter immigration. The implementation of such provisions will likely make companies less likely to hire foreign workers or vulnerable noncitizens, because such a commitment may be undercut by the Administrations’ future orders.

Since the start of the pandemic, the Trump Administration has made over a dozen changes to the U.S. immigration system, using the coronavirus as justification for aggressive immigration restrictions. Previously, the Administration expanded travel restrictions and slowed visa processing. Immigration agencies and embassies have already stopped processing visas and citizenship ceremonies have been halted. Since March 19th, refugee resettlements have also been suspended, as both the U.N. and the International Organizations for Migration temporarily paused refugee travel. This order, however, is the broadest expansion of restrictions on immigration since the start of the COVID-19 outbreak.

If you have questions about how this order may affect your case, please contact us on our website, by email at [email protected] or give us a call at (866) 691-9894.

 

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How does the Coronavirus affect U.S. Immigration Policy?

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Consequences of COVID-19 on U.S. immigration policy

In the midst of our interconnected world, COVID-19 has rapidly spread and awakened the world’s anxieties while new related policies have abruptly restricted human movement. As the Trump Administration attempts to contain the contemporary strain of Coronavirus, U.S. immigration policy has been shaped by the crisis.

Impacts of COVID-19 on restrictions on U.S. Visas and Entry

On March 15, the National Association of Immigration Judges, ICE Professionals Union, and the American Immigration Lawyers Association called for the emergency closure of American Immigration Courts to adhere to the COVID-19 public health protocols.

UPDATE: Effective March 18th, 2020, the Department of Justice has postponed all non-detained hearings.

President Trump has issued the following four COVID-19 related proclamations that limit travel to the United States:

  • China Travel Proclamation, effective since February 2, 2020, suspends the entry into the United States of all aliens who were physically present within the People’s Republic of China during the 14-day period preceding their entry or attempted entry into the United States.
  • Iran Travel Proclamation, otherwise known as the Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus, effective since March 2, 2020, suspends entry of all aliens who were physically present in the Islamic Republic of Iran during the 14-day period preceding their entry or attempted entry into the United States.
  • European Schengen Area Proclamation, effective since March 13, 2020, suspends the entry into the U.S. of all aliens who were physically present within the Schengen Area during the 14-day period preceding their entry or attempted entry into the United States. The written proclamation articulates that the suspension, “shall remain in effect until terminated by the President.”
  • Ireland and United Kingdom Proclamation, effective since March 16, 2020, bans entry into the U.S. of all aliens physically present within the U.K. or the Republic of Ireland during the 14-day period preceding their entry or attempted entry into the United State.

Note: according to NAFSA Association of Intellectual Educators, these proclamations do not apply to any U.S. citizen, or to any alien who is:

  1. a lawful permanent resident of the U.S.
  2. a spouse of a U.S. citizen or lawful permanent resident
  3. a parent or legal guardian of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  4. a sibling of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  5. a child, foster child, or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  6. an alien traveling at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  7. C (transit) or D (air or sea crewmember) nonimmigrants
  8. an alien whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
  9. an alien whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or
  10. an alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

U.S. consular offices are temporarily closed in China.  All routine immigrant and nonimmigrant visa appointments in India have been cancelled since March 16, 2020. Likewise, U.S. consular services in Italy have been reduced since March 10, 2020.

According to the Migration Policy Institute, never before has the U.S. Administration pursued such a comprehensive travel ban. President Trump’s four proclamations are the most widespread measures ever undertaken by the U.S. government in the context of a public-health threat, screening individuals across the “migration continuum”: during visa application, during plane boarding, and at the arrival to physical borders.

President Trump has suggested that he is considering completely closing the U.S.-Mexico border, regardless of the fact that there are far more reported Coronavirus cases in the U.S. than in Mexico. Migrants have consistently served as the scapegoats for public-health concerns. For instance, Cholera was known as the “Irish disease” in the 1830s.

COVID-19 and USCIS

The USCIS has released a statement requesting aliens to reschedule their appointments or interviews with any USCIS office if they have traveled internationally to any country outside the U.S. within 14 days of the appointment if they believe they may have been exposed to COVID-19, or experience any flu-like symptoms.   Additionally, the USCIS Field office has canceled some upcoming scheduled interviews this week in an effort to reduce the number of applicants coming into the building.

UPDATE: As of March 18, 2020, USCIS has announced that domestic field offices will be closing to the general public for in-person services until June 4th 2020.   This means scheduled immigration and naturalization interviews between that time will be canceled and rescheduled to a later date and time.   For more information, go to uscis.gov.

Likewise, the Department of Homeland and Security (DHS) has noted that both Customs and Border Patrol (CBP) and the Countering Weapons of Mass Destruction Office (CWMD) have worked with the Centers for Disease Control and Prevention (CDC) by conducting enhanced screening at 11 major American airports. At and between all air, land, and sea Ports of Entry, CBP officers and Border Patrol agents are identifying individuals with COVID-19 symptoms or with a travel history to China or Iran in the former 14 days. These individuals are referred to CDC or any other local public health officials for further health screening.

COVID-19 and the Public Charge Rule  

While the “Public Charge” rule has discouraged immigrants from accessing healthcare, the U.S. Citizenship and Immigration Services (USCIS) noted on March 14, 2020, that treatment or preventive services for the COVID-19 would not negatively affect any alien as part of a future Public Charge analysis. The USCIS emphasizes that it encourages all aliens with symptoms that resemble COVID-19 to seek necessary medical attention.

Despite this statement released by the USCIS, there is the possibility that past legislature, such as the “Remain in Mexico” policy and the “Public Charge” act, may exacerbate the crisis if immigrants continue to resist accessing health care out of fear of being negatively impacted. Past immigration enforcement has cultivated a sense of distrust in Latinx communities towards American institutions, which may indirectly endanger the well-being of many Americans especially during this pandemic as fewer individuals seek health care. Furthermore, documented immigrants may avoid attending health centers out of fear that their use of public benefits may hurt their abilities to naturalize or to sponsor a noncitizen for a visa.

Immigration Enforcement and Check-Ins

While immigration law enforcement continues daily enforcement operations and makes criminal and civil arrests, ICE will not conduct operations at medical facilities, except under extraordinary circumstances. In a recently released notice, ICE has said that it will continue to prioritize apprehending individuals who threaten national security and public safety, but is centrally committed to the health of its employees and general public. ICE policy has directed DHS officers to avoid making arrests at sensitive locations like health care facilities without prior approval for an exemption. Additionally, individuals with a scheduled check-in must contact their local ICE office for further guidance.

Detentions

As of March 13, 2020, there have been no confirmed cases of COVID-19 at any ICE detention facilities, according to an official notice from ICE. ICE has instituted screening guidance for new detainees to identify those who meet CDC’s criteria for risk of exposure to COVID-19. Detainees with a fever or respiratory symptoms are isolated and observed for a specified period of time. Additionally, detainees without fever or respiratory symptoms who meet epidemiologic risk criteria are monitored for 14 days. All asymptomatic detainees in isolation can attend medical appointments, while symptomatic detainees in isolation must wear masks to attend medical appointments. The detainee’s medical provider is notified of the detainee’s status.

Personal visitation at detention centers has been temporarily curtailed. ICE will facilitate communication with families, in the absence of visitation, through extended telephone access or other reasonable means.

To note: ICE only detains individuals for immigration purposes, and cannot legally hold a detainee who has an ordered release by a judge. Local public health agencies are notified when an individual who is ill or who was in isolated detention is released.

Removals

The ICE Air flight medical provider conducts visual screenings that reflect ICE policy and procedures on new apprehensions lacking medical summary information who are delivered to the aircraft. Detainees who are not “new apprehensions” are delivered to the aircraft only with medical clearance. Detainees who do not pass screening and/or are suspected of having a health-risk condition that may be contagious are denied boarding and are referred instead to a facility for screening.

Indirect Consequences
Measures taken by the U.S. government in response to the COVID-19 may have unintended effects on migration and human movement. Ramped up screening may not deter travel from outbreak zones, but may incentivize travelers to evade detection if possible by masking symptoms or lying about travel history. Dangerously, this will impact national public health and safety.

The Migration Policy Institute articulates a concern that perhaps these travel bans, which often are symbolic responses, give false hope and foster a “nation-first” attitude that undermine the necessity to create an international solution.  Blanket travel bans, such as those proclaimed by the Trump Administration to impede reception of individuals from China, Iran, the EU, the U.K., and Ireland, may prevent much-needed healthcare workers and supplies from entering the United States, which may also negatively impact public health and security.

 

 

 

 

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New Public Charge Rule: What Documents do Green Card Applicants need now?

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New Public Charge Rule: What Documents do Green Card Applicants need now?

Since 1996, federal laws have stated that aliens must demonstrate self-sufficiency to be granted permanent legal status. The Supreme Court’s Inadmissibility on Public Charge Grounds Final Rule, implemented on February 24th, 2020, revised the guidelines of determining whether an alien individual is admissible to the U.S. or eligible to obtain permanent legal status, based upon the likelihood of becoming a public charge. Consequently, United States Citizenship and Immigration Services (USCIS) have the discretionary power to deny green cards to migrants with histories of using benefits. To decide whether an individual merits legal permanent resident status, USCIS will consider an alien applicant’s income, employment status, health, age, education, family circumstances, prospective immigration status, and prospective period of admission.

Applications for visas and lawful permanent residency processed at U.S. embassies and consular offices outside of the U.S. will operate under the February 24th regulations. All applicants who are not exempt from a public charge assessment must submit Form 5540 (Public Charge Questionnaire). USCIS officers have been directed to take Form DS-5540 into consideration before denying an alien’s application.

Green card applications, as of February 24th, 2020, must include:

1. Proof of Income of Applicant: this includes the most recent year’s IRS Tax Transcripts of the applicant’s Federal income tax returns (if applicable). If the green card applicant was outside the United States during the most recent tax year, he or she must provide the most recent year’s Foreign Tax Transcripts for income taxes filed with the government of the overseas country. If the green card applicant is not required to file federal taxes, he or she must file a W-2 statement or a Social Security Statement.

If the applicant has any additional non-taxable income (such as child support, unemployment benefits, etc…) not included in tax return, he or she must provide: statements or letters of proof of having received nontaxable income.

2. Proof of Income of Household Members (IF APPLICABLE): if the applicant currently lives with other household members (including a spouse, children, any individual receiving at least 50% of their support from the applicant or on whom an applicant relies for at least 50% support, etc…), then the applicant must provide all of his or her household members’ most recent year’s IRS Tax Transcripts of their Federal income tax returns, or the household members’ most recent year’s Foreign Tax Transcripts for income taxes filed outside the U.S.

Finally, if household members are not required to file federal taxes, the applicant must provide these members’ W-2 Statement or Social Security Statement.

The applicant must also provide evidence of his or her relationship with each household member, such as a birth certificate, marriage certificate, or a signed statement.

3. Evidence of Asset of Household (IF APPLICABLE): Assets include checking and savings account statements, stocks and bonds, retirement accounts, educational accounts, net cash value of real estate holdings, and other substantial assets that can be converted into cash within 12 months.

If the applicant or any of their household members own any assets, proof of the applicant’s or households’ assets must be provided, including: the name of the asset holder, description of the asset, proof of ownership, and basis for owner’s claim of its net cash value.

4. Proof of Liabilities/Debt (IF APPLICABLE): IF the applicant has liabilities or debt, he or she must provide documentation (letters or statements) for each liability and debt :
a. Such examples include Mortgages, Car Loans, Credit Card Debt, Education Related Losses, Tax Debts, Liens, Personal Loans, Unpaid Child or Spousal Support, Other Debts

5. Credit Score and Report (IF APPLICABLE): IF the applicant has a Credit Report or Credit Score in the U.S., he or she must provide a Credit Report from Equifax, Experian, or TransUnion (go to: https://www.usa.gov/credit reports ). If the applicant has no Credit Report or Credit Score, he or she must provide evidence of continued payment of bills and provide documentation that he or she has no credit report with a U.S. credit bureau.

If the applicant has Negative History in his or her Credit Report (such as delinquent accounts, debt collections, tax liens, bankruptcy, etc…), he or she must provide a written explanation regarding each negative history item.

If the applicant has filed for bankruptcy, he or she must provide documentation to show every instance, type, place of filing, and date of the bankruptcy. The evidence of the resolution of each bankruptcy must also be filed if applicable.

6. Proof of Health Care Insurance (IF APPLICABLE): IF the applicant has health care insurance, he or she must provide a copy of the Insurance’s Policy Page that articulates the terms and type of coverage OR the applicant must provide a letter on the company letterhead/ evidence from the health insurance and provide the terms and type of coverage OR the applicant must provide the latest Form 1095-B (Health Coverage) and Form 1095-C (Employer-Provided Health Insurance Offer and Coverage) if available, with evidence of renewal of coverage for the current year.

If relevant, the applicant must also provide proof of Premium Tax Credit or Advanced Premium Tax Credit, with a transcript copy of the IRS Form 8963 Report of Health Insurance Provider Information, Form 8962 Premium Tax Credit (PTC), and a copy of Form 1095A, Health Insurance Marketplace Statement.

If relevant, the applicant must also provide proof of the deductible or premium amount, with documentation.

If relevant, the applicant must also show documentation of the date of insurance termination or date of renewal.

If the applicant has enrolled in health insurance that has yet to start, he or she must provide proof of enrollment, such as a letter that includes the terms, type of coverage, name of the individual covered, and the date when the coverage begins.

If the applicant has a medical condition that will affect his or her circumstances of work, he or she must provide documentation that can outweigh negative factors related to the medical condition (this includes information provided by a civil surgeon or a panel physician on a medical examination, attestation from your treating physician regarding the prognosis of any medical condition and whether it impacts your ability to work or go to school, or evidence of sufficient assets and resources to pay the costs of any reasonably anticipated medical treatment).

7. Public Benefits Received (IF APPLICABLE): IF the applicant has received any Public Benefits, he or she must include evidence of that public benefit (such as a letter, notice, certification) that include the applicant’s name, the public benefit-granting agency’s name and contact information, type of benefit, date of authorization to receive the benefit, and the date benefit or coverage ended or expires. Such Public Benefits include: any local, state, federal, or tribal cash assistance for income maintenance; Supplemental Security Income; Temporary Assistance for Needy Families; Supplemental Nutrition Assistance Program; Supplemental Nutrition Assistance Program; Public Housing under the Housing Act of 1937; Federally funded Medicaid.

If the applicant has applied for a Public Benefit but been denied or rejected, he or she must provide documentation of denial or rejection.

If the applicant has disenrolled from a Public Benefit, he or she must
provide evidence of disenrollment or request to disenroll.

If the applicant has withdrawn from a Public Benefit, he or she must provide evidence demonstrating that the public benefit granting agency received your request to withdraw the application. The applicant may also provide evidence from a federal, state, local, or tribal agency administering a public benefit that shows that he or she does not qualify or would not qualify for such public benefit based on his or her annual gross household income or prospective immigration status.

8. Immigration Fee Waivers (IF APPLICABLE): IF the applicant has ever applied or received a fee waiver when applying for an immigration benefit AND the circumstances that caused an applicant to apply have changed, he or she must provide documentation to support any explanation of changed circumstances.

9. Education and Skills of the Applicant: IF an applicant is unemployed because he or she is the primary caretaker of a child/disabled individual/elderly, he or she must provide documentation showing that he or she is the primary caretaker (such as a legal guardianship court order), that the individual resides in the applicant’s household, and proof of the individual’s age/medical condition (if relevant).

If the applicant has graduated high school or obtained a tertiary level degree, he or she must provide transcripts, diplomas, degrees, certificates, or written explanation/letter issued from the institution as to why these documents are unavailable. Note that all foreign education should include an evaluation of equivalency to education or degrees acquired at U.S. educational institutions.

If the applicant has any occupational skills, he or she must provide a list of licenses for specific occupations/professions AND certificates documenting mastery or apprenticeships in skilled professions and trades.

If licenses/certificates are unavailable, the applicant must provide a written explanation and letter from the issuing institution to explain why these documents are unavailable.

If the applicant has completed courses and/or received any certifications in English or other languages, he or she must provide proof of language or literacy classes taken or currently being taken, or other proof of proficiency.

If the applicant is a speaker of English or another language, he or she must provide documentation of language proficiency including language certifications (such as high school diplomas and college degrees showing that the native language was studied for credit).

10. Proof of Retirement (IF APPLICABLE): IF an applicant is currently retired, he or she must provide documentation or statements of income from pensions, social security, and other retirement benefits.

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New Public Charge Rule’s Impact on Green Card Applicants

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New Public Charge Rule’s Impact on Green Card Applicants

Since February 24th, 2020, U.S. Citizenship and Immigration Services (USCIS) has implemented the Inadmissibility on Public Charge Grounds Final Rule nationwide. This public charge rule expands the grounds on which immigration enforcement officials can deny the acquisition of a green card or other legal status to noncitizen applicants, to ensure that individuals will not rely upon government benefits and services. Until February 24th, the use of most public benefits did not impede legal status in the United States. The new rules allow USCIS officials to penalize noncitizen recipients of housing, health, and nutrition welfare programs that are applying to change their legal status. However, because few benefit programs are open to noncitizens without legal permanent residence, few green card applicants are likely to be denied based on their benefit use. Notably, certain classes of individuals, such as refugees and asylum seekers, are exempt from the public charge ground of inadmissibility.

Note that Public Benefits that will not be considered by officers in determining an alien applicant’s inadmissibility on grounds of public charge are: emergency medical assistance, disaster relief, national school lunch programs, energy assistance, food pantries and homeless shelters, Head Start, government-subsidized student and mortgage loans, subsidies for foster care and adoption, Children’s Health Insurance Program, and the Special Supplemental Nutrition Program for Women, Infants, and Children.

This final rule applies to applicants for admission, aliens seeking to adjust their legal status from within the U.S., and aliens within the U.S. who have a nonimmigrant visa and would like to extend their stay in the same or different legal classification. This rule indicates that the Department of Homeland and Security (DHS) will not consider the receipt of public benefits received by an alien who is enlisted in the U.S. armed forces or is serving in active duty. Furthermore, DHS will not consider the public benefits received by children. Likewise, DHS will not consider Medicaid benefits received for the treatment of an emergency medical condition, services provided in connection to the Individuals with Disabilities Education Act, schools-based benefits provided to individuals who are below or at the oldest age eligible for secondary education, aliens under 21 years of age, and pregnant individuals or individuals within the 60-day period beginning on the last day of the pregnancy.

Significance for Green Card applicants:

The State Department’s revised public charge guidelines increase the difficulty in securing a green card or other form of visa. If a green card applicant is filing immigration paperwork from abroad he or she should expect significant scrutiny of past and present financial circumstances. While receiving cash benefits in the past can be a factor in the government’s decision, no single factor will dictate whether USCIS deems an individual a “public charge”. Immigration enforcement officers use their discretion to decide whether an applicant can receive legal permanent residence, using the following factors to determine whether an individual is likely to rely on public funds:

– Age: The final Supreme Court rule indicates that USCIS will consider whether an applicant’s age impacts his or her ability to physically work, and is therefore relevant to determining self-sufficiency. USCS has indicated that it is important that the applicant is between 18 and 62 years of age. This age range is based on the age at which individuals are generally able to begin working full-time and the age at which individuals typically retire with social security retirement benefits under federal law. Moreover, minors under 18 years of age are more likely to qualify for public benefits, and thus may be relevant to public charge inadmissibility. The regulation also acknowledges that applicants under 18 years of age or over 61 years of age may work or have other means of support. For minors under 18 years of age, USCIS will consider the availability of outside support form a parent and other resources and assets available to the minor applicant. USCIS says that it will be heavily negatively weighted if the applicant is authorized to work, not a full-time student, and does not demonstrate current employment, recent employment history, or any prospect of future employment.

– Health: USCIS will consider whether an applicant has a medical condition that will require extensive future treatment that will likely impede the applicant’s ability to work and provide for himself or herself. However, the presence of a medical condition does not automatically render an alien applicant inadmissible. USCIS officials will likely defer to Form 1-693 (civil surgeon’s medical report) that must be filed as a part of the application process. Officials will consider the medical condition through the lens of whether the medical condition will impede an alien’s ability to attend school and work. Applicants with a health condition should have evidence that they have or will obtain private health insurance to cover all associated foreseeable medical costs.

– Family Status: The final Supreme Court’s rule indicates that the larger the family’s size, the more income an applicant needs to establish. Thus, it is considered whether an alien applicant has a household to support, or whether the applicant is supported by another household, in order to determine whether the alien would be more or less of a public charge. Certainly, household size does not automatically dictate the outcome of a public charge admissibility determination, and officers look at other factors such as financial status.

– Financial status (including income, employment, assets, and resources): Perceived negative factors such as unemployment may contribute to additional questioning. Applicants must submit Form 1-944 (Declaration of Self-Sufficiency) to provide evidence of an annual gross income at least 125% of the Federal Poverty Guidelines. If an applicant cannot provide adequate evidence of sufficient income, his or her assets can be considered. These assets may pertain to the applicant or to any family member in the household. USCIS officers will also consider an applicant’s credit history and civil liabilities, including mortgages, spousal support, unpaid taxes, etc… The final rule provides that a household income, assets, and resources of at least 250% of the Federal Poverty Guidelines is a heavily weighed positive factor.

– Education and Skills: USCIS will consider whether an applicant has sufficient education and skills to obtain and maintain a lawful employment. Skills include English proficiency. Generally, aliens with educational credentials, certificates, and skills are more employable and thus less likely to become a public charge. Considering market demand, DHS may regard an applicant’s proficiency in other languages, along with English, when reviewing the education and skills factor.

– Affidavit of Support: Because an affidavit of support does not guarantee that an alien applicant will receive public benefits in the future, officers only consider the affidavit of support as one factor among all others. However, an applicant’s failure to submit a required affidavit of support will result in a determination of inadmissibility without review of other factors. USCIS considers whether a sponsor will genuinely provide the required amount of financial support to the alien applicant.

DHS notes that the following are positively weighed by USCIS: significant income, resources, and assets; or an annual income of at least 250% of the Federal Poverty Guidelines.
Furthermore, DHS lists some heavily weighed negative factors that indicate an alien applicant’s likelihood of being a future public charge, which include: lack of employment, lack of financial means to pay for medical costs, current receipt of one or more public benefits, receipt of public benefits within 36 months of filing an application for legal permanent residency, and previous determination of inadmissibility or deportability based on public charge.

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