What's New in the World of Immigration?

08/15/2019 - Public Charge Policy: Current Rule vs New Rule

The below is the best summary I've seen so far explaining the current rule vs the new rule on Public Charge Policy.

On August 14, 2019, the Department of Homeland Security (DHS) published a final rule related to public charge in the Federal Register. According to DHS, the rule will not take effect until October 15, 2019. [The rule will not affect cases filed prior to October 15, 2019].

This new rule will mainly impact those seeking permanent resident status through family member petitions. The rule will not take effect until mid-October 2019. Until that time, all pending adjustment of status cases and those that are postmarked before October 15, 2019 will be adjudicated under current standards.

Additionally, many organizations have indicated they will file lawsuits challenging the legality of the rule. Thus, even after publication, legal challenges could delay implementation.

Here are a few important points regarding the public charge rule:

 The new rule interprets a provision of the Immigration and Nationality Act (INA) pertaining to inadmissibility. The inadmissibility ground at issue says a person is inadmissible if they are likely to become a public charge. INA § 212(a)(4). This law only applies to individuals seeking admission into the United States or applying for adjustment of status. This provision of the law does not apply to all immigrants.

 Public charge and this rule do not apply in the naturalization process, through which lawful permanent residents apply to become U.S. citizens.

What is the current law?

 Currently, immigration officers decide public charge by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support. Primary dependence refers to reliance on cash-aid for income support or long-term care paid for by the government.

 To decide whether an individual is a public charge, immigration officers rely on multiple factors specified in the INA. They must also rely on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor , indicating that the sponsor will financially support the immigrant. This affidavit of support offers strong evidence that the immigrant will not become primarily dependent on the government.

 Under existing policy, immigration officers also consider whether an immigrant applying for a green card or admission to the United States has used cash aid (such as TANF, also known as “welfare,” or SSI) or long-term institutionalized care in the past. Immigrants who have used this form of assistance will have to show that it is not likely they will need these resources for support in the future.

 Use of publicly-funded health care, nutrition, and housing programs are not currently considered negative factors for purposes of public charge. Beginning on October 15, 2019, the new rule will consider some of these benefits in the public charge determination. This is a drastic change from longstanding policy.

What’s in the new rule?

 While the test for whether someone is likely at any time to become a public charge will still be prospective as required by the statute, the new rule redefines the definition of a public charge. Now, instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rule defines a public charge as a person who receives any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. Each benefit used counts toward the 12-month calculation. For instance, if an applicant receives two different benefits in one month, that counts as two-months’ use of benefits.

 The rule expands the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. Under the new rule, Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.

 The proposal also considers that all use of cash aid, including not just TANF and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.

 Benefits received by family members of the immigrant will still not be considered in the public charge determination. Additionally, Medicaid received by applicants while under age 21 or while pregnant are not considered. In addition, the proposal does not change long-standing policies that allow immigrants to access emergency medical care and disaster relief without public charge repercussions.

 It is important to remember that prior receipt of benefits is only one factor in the public charge test. The new rule sets out criteria for considering several factors in assessing the likelihood that a person will need more than 12 months of public benefits in aggregate over a 36-month period in the future. The rule also elaborates on criteria for considering financial status, size of family, age, education, skills and employment, among others.

 The rule allows immigration officers to consider English proficiency (positive), or lack of English proficiency (negative); medical conditions and availability of private health insurance; and past use of immigration fee waivers. The rule will require immigrants to attach a Declaration of Self-Sufficiency when applying for a green card in addition to the many forms already required.

 The rule creates “heavily weighted negative factors” and a couple “heavily weighted positive factors.” It is a heavily-weighted negative factor to receive more than 12 months of public benefits in the aggregate over the 36-month period of time before submitting the application for adjustment or admission. Heavily weighted positive factors include having a household income of at least 250% of the federal poverty level. It is not clear how an officer should decide a case that has a heavily weighted factor or both heavily weighted negative and positive factors.

 Bonds are possible where an immigration officer finds inadmissibility based on public charge. Bonds will be highly discretionary and the new rule says that some factors that will generally make an applicant ineligible for a bond.

This new rule, if implemented, will mainly impact those seeking permanent resident status through family member petitions. Immigrants should consult with an immigration expert who understands public charge to learn whether the public charge rule even applies to them or their family. Remember, many categories of immigrants are exempt from public charge. The rule will not take effect until mid-October. Until that time, all pending adjustment of status cases and those that are postmarked before October 15, 2019 will be adjudicated under current standards.

Existing policy is still in effect. The new rule will apply to adjustment of status applications postmarked on or after October 15, 2019 . The new rule will not apply to adjustment of status applications that are pending or postmarked before that date. Additionally, legal challenges may delay implementation.

The above summary was Published by the National Immigration Law Center

08/01/2019 - How to Shrink the USCIS Backlog in One Minute or Less

By: Jason Boyd, Policy Counsel with AILA’s Government Relations department.

Imagine if a multi-billion-dollar entity that has chronically failed to meet core organizational goals—a failure causing hardship for millions of customers—touted to those customers a “solution:” laxer goals.

This is no hypothetical. US Citizenship and Immigration Services (USCIS), the agency whose failure to timely process applications for immigration benefits is burdening millions of individuals, families, and American businesses nationwide, is now championing lowered standards for case processing as one solution.

During a July 16 Congressional hearing on its crisis-level case backlog, USCIS outlined various prongs of a backlog reduction plan—some of them constructive, others unacceptable. Its aim to “Redefine Processing Time Goals to Better Reflect True Cycle Times” falls squarely into the latter category. USCIS’s testimony indicates that, at minimum, the agency could lengthen the green card application processing time goal, currently set at 120 days.

While relaxation of this and other processing time benchmarks would technically reduce the backlog as USCIS commonly measures it, it would not improve actual processing times or the lives of applicants. The agency defines its “net backlog”—which officials often call simply “the backlog”—as the number of cases not adjudicated within processing time goals. Cases that USCIS cannot presently act on, such as applications with outstanding requests for supplemental evidence, are excluded from this figure.

Under this definition, the size of USCIS’s net backlog hinges on the processing time goals self-assigned by the agency. Faster goals would instantly increase the backlog by pushing more pending cases outside target thresholds. Slower goals would automatically shrink it. The new benchmarks would not necessarily shift processing times themselves, just USCIS’s determination of whether those times constitute a delay. In fact, even if processing times spike, laxer goals could send the net backlog into freefall. That plunge could project a misleading impression of improved agency performance, masking continued deterioration of USCIS services along with heightened customer hardship.

But this “solution” is troubling not just because it solves nothing. It also conveys an unwillingness to accept accountability for, and even promotes normalization of, the agency’s systemic failure to process cases efficiently. To “Redefine Processing Time Goals to Better Reflect True Cycle Times” is to change goals to accommodate underperformance rather than to change performance to meet goals. During the July 16 hearing, Rep. Joe Neguse (D-CO) underscored this point. He observed that, during his tenure as Executive Director of a consumer protection agency in Colorado, “it would not be received well if I said well, I’m going to simply change the processing time because we can’t meet it.”

USCIS offers unconvincing justifications for moving its goalposts. It cites a July 2018 report in which DHS’s Office of Inspector General found that the 120-day green card application processing time goal was “unrealistic.” But the report based this conclusion on USCIS adjudications as they are currently administered without meaningfully assessing their efficiency. As AILA has documented, inefficient policies pervade those adjudications. Such measures include an unnecessary in-person interview requirement for all employment-based green card applicants that, by the agency’s own admission, has slowed case processing since its implementation in October 2017. It should come as no surprise that wasteful, time-intensive policies like this one would render existing processing time goals less tenable. Rather than fix the policies, however, USCIS has resolved to loosen the goals.

USCIS also maintains that revisions to processing time goals “would set more realistic timelines for the public on how long they should expect to wait.” But those goals are distinct from the “current processing times” that USCIS provides on its website as a public tool for identifying normal processing periods for green card cases and other form types. If the agency wants to better manage expectations, it should provide more transparent and accurate data on current processing rather than water down its performance objectives.

The millions of backlogged individuals, families, and U.S. businesses need meaningful solutions to the agency’s crisis-level delays. Lowered standards are not among them. As a starting point, USCIS should reverse inefficient policies and practices, like the referenced in-person interview requirement, that comprise core drivers of the backlog. And Congress should swiftly pass legislation that, by strengthening USCIS transparency and accountability, helps promote timely adjudications.

Ultimately, our nation of immigrants cannot and will not accept a normalization of delays. We deserve a USCIS that rises to its processing time goals, not one that runs from them.

06/10/2019 - Premium Processing Begins for Remaining H-1B Cap-Subject Petitions on June 10

On June 10, we will begin premium processing for all remaining FY 2020 H-1B cap-subject petitions. Starting on that date, petitioners may file Form I-907, Request for Premium Processing Service, with the USCIS service center that is processing their petition. On March 19, we announced that we would offer premium processing in a two-phased approach during the FY 2020 cap season to best manage premium processing requests without fully suspending it. In the past few years, we suspended all premium processing for H-1B petitions due to high demand. Based on feedback from the public, we are using this phased approach to benefit petitioners and ensure efficient premium processing. The first phase, which started on May 20, included FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase includes all other FY 2020 cap-subject petitions.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available.

05/30/2019 - Hundreds of minors held at U.S. border facilities are there beyond legal time limits

By Abigail Hauslohner and Maria Sacchetti for the Washington Post

MCALLEN, Tex. — Many of the nearly 2,000 unaccompanied migrant children being held in overcrowded U.S. Border Patrol facilities have been there beyond legally allowed time limits, including some who are 12 or younger, according to new government data obtained by The Washington Post.

Federal law and court orders require that children in Border Patrol custody be transferred to more-hospitable shelters no longer than 72 hours after they are apprehended. But some unaccompanied children are spending longer than a week in Border Patrol stations and processing centers, according to two Customs and Border Protection officials and two other government officials who spoke on the condition of anonymity to discuss the unreleased data. One government official said about half of the children in custody — 1,000 — have been with the Border Patrol for longer than 72 hours, and another official said that more than 250 children 12 or younger have been in custody for an average of six days.

Because the crush of migration at the southern border in recent months has overwhelmed U.S. immigration infrastructure, initial incarceration for the tens of thousands of unaccompanied children who have arrived there has averaged four days, the officials said.

“I don’t have any beds, because we’re meant to be short-term processing — not even holding,” one CBP official said of the agency’s facilities here in the Rio Grande Valley, at which some children are sleeping on mats on the floor. “I have stools and benches, but I have no beds. . . . Our facilities are not built for long-term holding, and they’re certainly not built to house children for very long at all.”

The government agencies responsible for the care, transport and sheltering of the unaccompanied children have described a bureaucratic tangle linked largely to the influx of youths, passing the blame for the delays. Because the Border Patrol is the first agency to have them in custody, it has been seeing the backup directly in its stations along the southern border.

Border officials said the immigration system is so overwhelmed that the normal conduits meant to funnel children out of Border Patrol custody and into Department of Health and Human Services shelters have broken down. Migrants are arriving faster than Customs and Border Protection can process them. Immigration and Customs Enforcement typically transfers the children to HHS shelters, but it said the Department of Homeland Security — which oversees ICE and CBP — has been facing “numerous operational challenges,” according to a spokesman.

HHS officials said that the agency is aware that 2,000 children are detained and awaiting transfer and that it has space for them — but they said the agency’s responsibility for the minors begins only once they are delivered to the department’s custody. DHS officials at multiple agencies said HHS is not placing children in shelters fast enough.

Border Patrol has apprehended nearly 45,000 unaccompanied children since October, according to government data. A spokesman for HHS, whose Office of Refugee Resettlement is tasked with providing longer-term shelters for those children, said border authorities had referred approximately 40,800 unaccompanied children to its custody as of the end of April. That marked a 57 percent increase from the previous year, and HHS said it is on pace to care for the largest number of unaccompanied minors in the program’s history this fiscal year.

As of May 19, HHS said there were approximately 13,200 unaccompanied children in its custody.

The U.S. government ranks unaccompanied children as the most vulnerable of the migrants that cross into the United States each year. They are more susceptible to illness, trauma and abuse during and after an arduous journey north from Central America. They pose unique challenges for the U.S. government because of their health and care needs and because they cannot be immediately deported or released.

Following regular protocols, Border Patrol, a law enforcement agency, must quickly process children and then notify the Office of Refugee Resettlement. That agency then designates a shelter placement — sometimes thousands of miles away in places such as New York and Massachusetts. The refu­gee office then coordinates the child’s movement with Border Patrol and ICE.

All of it is meant to happen within 72 hours of a child’s apprehension, barring what U.S. law generally refers to as “extraordinary circumstances.” Instead, a crushing backlog of detainees has turned extraordinary into average.

The backlogs are heaviest here in the Rio Grande Valley — the most-trafficked stretch of border in the nation — where authorities liken their daily operations to a form of triage, regularly transferring children and others from concrete cells to military-grade tents to other stations that have more space.

The McAllen Border Patrol station, a facility near the southern tip of Texas that is routinely overwhelmed, was holding 775 people Tuesday, nearly double its capacity.

The Washington Post this week made a rare visit inside the facility, where adults and their toddler children were packed into concrete holding cells, many of them sleeping head-to-foot on the floor and along the wall-length benches, as they awaited processing at a sparsely staffed circle of computers known as “the bubble.” Hallways and offices previously designated for photocopying and other tasks now held crates and boxes of bread, juice, animal crackers, baby formula and diapers.

One cell held adolescent boys, many of whom stood in the small space, peering out through a glass wall. One stood urinating behind the low wall that obscured the toilet in back. In the adjacent cell, several boys who appeared to be of elementary school age slept curled up on concrete benches, a few clutching Mylar emergency blankets. Outside in the parking lot, a chain-link fence enclosure held dozens of women and children, many of them eschewing the air-conditioned tents to lie on the pavement.

Officials did not allow a visit to the larger central processing center nearby, where they said they try to send all unaccompanied minors upon their arrest and where they remain until they are transferred. There, detainees have access to showers and contractor-provided meals. The processing center was meant to be a stopgap measure when it was constructed to accommodate 1,000 people after the migrant-family spike in 2014, and it has since been extended to accommodate 500 more, said Xavier L. Rios Jr., the deputy patrol agent in charge of the station.

Rios said Border Patrol officials in Texas were often forced to hold unaccompanied children for five to 15 days in 2014, when the federal agencies were less equipped to handle the influx. Attorneys for children held in custody say such extended detentions are a flagrant violation of the law, a 1997 consent decree known as the Flores Settlement Agreement, and CBP guidelines.

Carlos Holguín, a lawyer in the Flores case, said this week that he had never heard of so many children held beyond the limit. He called the trend “disturbing.”

“Children are supposed to be transferred out of those facilities rapidly,” Holguín said. “The system does not seem to be working if it’s taking that long.”

Experts say transferring children out of detention facilities as quickly as possible is critical, especially for “tender age” children — those 12 or younger, who face physical and mental health issues even during short periods in detention. They sleep fitfully, do not eat well and suffer anxiety, said Amy Cohen, a child psychiatrist and expert witness in the Flores case.

“We know their experiences are horrible,” Cohen said. “It’s a very, very scary place. . . . Kids will tell me, even if they’ve been there for two days, they will have flashbacks about it. They have nightmares about it. Children absolutely experience this as a trauma. You can see it in their faces.”

Many also end up with respiratory or other infectious illnesses because they are housed in close quarters. Officials in recent weeks have spotted cases of chickenpox and scabies, moving quickly to isolate the sick from others.

Six children — five from Guatemala and one from El Salvador — have died after being taken into federal custody at the border since September. A teenager who had contracted the flu died last week in the Rio Grande Valley while in Border Patrol custody, leading agents to identify a small-scale flu outbreak.

Border Patrol officials say there are 6,400 people in custody in the Rio Grande Valley, including 931 unaccompanied children. The facilities are so overcrowded that officials say roughly 40 percent of the sector’s 3,100 Border Patrol agents are working on processing new migrant detainees at any given time.

That has left fewer agents out in the vast and wild tangle of brush that stretches for hundreds of miles along the twisting Rio Grande.

Agents on Tuesday morning struggled to pick up and transport more than 170 people — nearly all of them families with small children — that emerged from across the river in the space of an hour.

One group of more than 100 people had crossed in rafts before dawn, and as the sky lightened they sat in the dirt — exhausted parents cradling sleeping babies beneath a cluster of mesquite trees — as a pair of agents collected basic information, instructed them to place the few personal belongings they had carried into plastic bags, and called for transport.

Among the group were five children who had traveled alone, including a 10-year-old boy from Honduras who was wearing an adult’s oversize sweatshirt. He was trying to get to his mother in Lafayette, La., he said, producing from his pocket a folded piece of paper with her phone number on it.

A thin, bleary-eyed 10-year-old from Honduras said she was en route to reunite with her father in Ohio, but she was not sure where. A 16-year-old Guatemalan in rectangular glasses said he was heading to Florida. And a 17-year-old Honduran said he hoped to reach his brother in Houston.

On a dirt road a few miles away, a sole Border Patrol agent was simultaneously running through the same routine with about 30 people, also families and unaccompanied children, also waiting for pickup. And less than a mile from him, a local police officer who had radioed CBP for assistance was standing with 40 more.

“It’s a daily battle,” said one agent who spoke on the condition of anonymity to comment candidly about the work at the border. “You catch a thousand people a day, and then you can only process 750 a day. The agents are working their tails off trying to get this squared away, but it’s a daily struggle with the amount of people we’re encountering.”

04/30/2019 - Five Ways Trump's Moves to Stem Asylum Seekers Have Hit Hurdles

By Reuters

Grappling with a ballooning number of mostly Central American families seeking asylum at the U.S.-Mexico border, President Donald Trump has suggested increasingly bold steps to limit protections for this group and stem their entry into the United States.

Yet many of his administration's ideas have been hindered by legal, practical and political obstacles.

Increasingly frustrated, Trump on Monday issued a presidential memorandum directing officials to make it harder for asylum seekers to apply for work permits and to charge them application fees - drawing immediate fire from the United Nations.

The proposals face a potentially lengthy regulatory review and once rules are issued they may be subject to legal challenges. Many asylum protections are codified in U.S. and international law.

Meanwhile, the flow of migrants continues to swell. In March, the monthly number of people apprehended and deemed inadmissable at the U.S.-Mexico border surged to more than 100,000, the highest level in more than a decade.

Migration is largely driven by poverty, corruption, crime and other factors in Honduras, Guatemala and El Salvador where the bulk of people are coming from.

Some examples of administration proposals or policies that have run or may run into trouble:

INCREASE BARRIERS FOR ASYLUM APPLICATIONS

Monday's presidential memorandum directed the Justice Department and Department of Homeland Security to introduce new regulations tightening asylum policy within 90 days.

In addition to setting a fee for asylum applications, which are currently free to file, the memo ordered officials to issue rules to ensure claims are adjudicated in immigration court within six months. That provision already exists in U.S. law but has been hampered because of a crushing backlog of more than 800,000 immigration court cases.

The president of the immigration judges' union said the goal is not feasible without a significant increase in resources for the courts.

DETAIN ASYLUM SEEKERS INDEFINITELY

U.S. Attorney General William Barr recently issued a ruling that allows asylum seekers who cross the border illegally to be held without bond as they challenge their deportation – a decision affecting perhaps tens of thousands of migrants.. It was the latest move by top justice officials seeking to reshape legal precedent in the country's U.S. immigration courts.

Rights groups have already threatened to sue over the measure - which goes into effect in 90 days - and as a practical matter, additional detention space would be needed, requiring funding from Congress. Until that happens, many migrants are likely to continue to be released with an order to appear in court.

BAR GANG AND DOMESTIC VIOLENCE VICTIMS

Before leaving office, U.S. Attorney General Jeff Sessions intervened in an immigration case to overturn asylum protections for a domestic abuse survivor. His opinion sought to narrow protections for migrants fleeing sexual and gang violence perpetrated by private actors.

In December, however, a Washington D.C. District court judge struck down the policy change and ordered the government to bring back six deported asylum seekers who sued the administration seeking reconsideration.

PREVENT ASYLUM BETWEEN PORTS OF ENTRY

In November, Trump issued an order that would prevent migrants who cross between official U.S. ports of entry from applying for asylum. The administration has implemented a policy of "metering" how many applications can be processed at legal border crossings. Advocates say that has pushed more large groups into the hands of smugglers who drop them off at illegal entry points with instructions to turn themselves into border agents.

Migrant rights groups rushed to court to block the policy and a San Francisco-based federal judge temporarily halted it the same month it was issued. The U.S. Supreme Court declined to immediately overturn that ruling.

MAKE ASYLUM SEEKERS WAIT IN MEXICO

One of the boldest proposals by the Trump administration has been to tap a little-used clause in immigration law to send hundreds of asylum seekers back to often dangerous border towns in Mexico to wait months - or potentially years - for their cases to be resolved in U.S. courts.