What's New in the World of Immigration?

02/24/2020 - The Public Charge Rule, Explained

What is the “public charge” rule? - Selected excerpts from Boundless.com 02/24/2020

IMPORTANT UPDATE: The U.S. Department of Homeland Security’s new public charge rule took effect on Feb. 24, 2020, and applies nationwide...

The new rule affects people applying for green cards and visas from within the United States, through a process known as “Adjustment of Status.”

Among all the measures that the Trump administration has pursued so far to constrain legal immigration, the “public charge rule” could have the biggest impact.

Various legislative proposals to reduce legal immigration have been endorsed by the Trump administration but have effectively zero chance of becoming law. In contrast, the administration believes that it can implement the public charge rule through executive action, without an act of Congress.

Since 1999, immigration officers have adopted the guiding principle that a public charge is someone “primarily dependent on the government for subsistence,” as demonstrated by either (a) using public cash assistance for income maintenance or (b) institutionalization for long-term care at government expense. Specifically, this has included:

  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF), commonly known as “welfare”
  • State and local cash assistance, sometimes called “General Assistance”
  • Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution

Under this policy, very few immigrants have been denied green cards on public-charge grounds, for two primary reasons. First, Congress has already barred most immigrants from using welfare, so prior use of these benefits is out of the question. Second, Congress requires that most green card applicants have a financial sponsor — typically a U.S.-citizen spouse or other family member — who can demonstrate sufficient income to prevent future dependency on government benefits. That income threshold is defined in statute as 125% of the Federal Poverty Guidelines, currently $21,137 for most couples without children.

That’s why, for the past two decades, the vast majority of visa applicants have been able to avoid the “public charge” roadblock by submitting a financial sponsor’s Affidavit of Support, accompanied by evidence of meeting the statutory income threshold.

What will change under the new DHS “public charge rule” proposal?

DHS plans to dramatically expand the definition of “public charge,” so that green card and other visa applicants could be denied not for being “primarily dependent on the government for subsistence” (the current standard) but instead for being “more likely than not” to use certain public benefits at any point in the future.

Under the final regulation, DHS would create the following new criteria for denying a green card application from within the United States:

(1) Prior use of certain government benefits. Instead of limiting the definition of off-limits government benefits to welfare payments and subsidized long-term institutionalization, the new policy would expand the definition to include a wider range of common government benefits:

  • All of the status quo benefits list above (SSI, TANF, general assistance, and long-term institutional care)
  • Supplemental Nutrition Assistance Program (SNAP), commonly knowns as “Food Stamps”
  • Section 8 housing and rental assistance
  • Federal housing subsidies
  • Nonemergency Medicaid benefits (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)

    A “public charge” denial would be triggered if someone has received one or more of the above public benefits, for more than 12 months in aggregate within any 36-month period. Receipt of two benefits in one month counts as two months.

    (DHS will not penalize applicants for use of these benefits by a spouse or child, in a departure from previously reported drafts.)

    It’s important to note that DHS does not have the authority to make anybody ineligible for these benefits, which are administered by other federal agencies under various acts of Congress. DHS would, in effect, be penalizing visa applicants for using benefits they are allowed to take advantage of under existing law.

    And it’s also important to understand that the great majority of people applying for green cards are not even eligible for the very benefits that the DHS public charge rule seeks to penalize. Unfortunately, this rule has created a “chilling effect” that scares many people into disenrolling from public benefits even though they don’t need to.

    (2) Likelihood of future use of government benefits. Although the following general criteria are defined by Congress, DHS plans to greatly expand the number of specific factors that immigration officers must take into account when determining whether or not a visa applicant is likely to become a “public charge” at any point in the future.

    • Age: Applicants could be denied if they are younger than the minimum age for full-time employment (18), older than the minimum “early retirement age” for social security purposes (61), or otherwise at an age that impacts their “ability to work.”
    • Health: DHS plans to scrutinize any medical condition and assess whether this condition could affect the applicant’s ability to work, potentially expanding the scope of the required medical examination.
    • Family size: Having more children or other dependents could increase the likelihood of a visa denial.
    • Skills: DHS plans to determine whether an applicant has “adequate education and skills to either obtain or maintain employment” (if authorized to work), by looking at employment history, high school degree and higher education, “occupational skills, certifications, or licenses,” and proficiency in English or other languages.
    • Financial status: Above and beyond looking at an applicant’s income and assets (see below), DHS plans to assess credit history, credit score, and financial liabilities, plus whether the applicant has private health insurance or enough resources to cover “any reasonably foreseeable medical costs” that could interfere with work or study.
    • (3) Insufficient financial resources. Even if an applicant has never used government benefits in the past and meets all of the above criteria to demonstrate low likelihood of using benefits in the future, they could still be blocked by an entirely new requirement: personal financial resources. DHS plans to require a new form called the “Declaration of Self-Sufficiency” (Form I-944) to accompany most applications for green cards. This form would collect information intended to help immigration officers determine whether the applicant is a “public charge” under the new, more expansive criteria outlined above.

      This new form is not to be confused with the “Affidavit of Support” (Form I-864), which Congress has mandated since 1996 to demonstrate the financial resources of the person sponsoring the applicant for a green card or other visa. Until now, immigration officers have typically given great deference to an Affidavit of Support showing that the sponsor has an income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines, since this is a statutory threshold indicating that the visa applicant will have sufficient financial resources to avoid becoming dependent on government benefits.

      Under the new policy, however, DHS plans to impose similar financial requirements on the applicant, not just the sponsor. It appears that at a minimum, applicants will have to demonstrate household income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines. But in addition, DHS would set an entirely new and higher household income threshold at 250% of the poverty guidelines, establishing this much higher hurdle as a “heavily weighted positive factor.”

      This could mean that, to safely avoid denial on public-charge grounds, an applicant would need to show annual household income of $41,150 (for a couple with no children) on up to $73,550 (for a family of five) or higher.

      Who would be affected by this policy change?

      The new public charge rule would apply to the vast majority of applicants for green cards (permanent residence). This includes green card applicant's sponsored by U.S. citizen or lawful permanent resident family, employer sponsorship, and temporary visa applicants.

      Those seeking temporary visas will not be subject to the Form I-944 or future-looking tests described above, but still must demonstrate that they have not received the above-mentioned public benefits “for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”

      Exemptions

      The public charge rule will not apply to visa applicants whom Congress has exempted from the public charge test, such as refugees, asylees, individuals who have experienced domestic violence, and other special categories.

      Estimated impact

      Given that the new public charge rule would create an entirely new income requirement for visa applicants (not just their sponsors) and would set this household income threshold as high as 250% of the Federal Poverty Guidelines, the following possible impacts have been estimated:

      DHS could begin denying up to nearly half of all marriage green card applicants, each year forcing nearly 200,000 couples to either leave the United States together or live apart indefinitely. (Source: Boundless Immigration)

      Some 56% of all family-based green card applicants could be denied under the public charge rule’s unprecedented income requirement — more than the 47% at risk based on prior use of government benefits. (Source: Migration Policy Institute)

      Moreover, this new hurdle would have disproportionate effects, blocking 71% of applicants from Mexico and Central America, 69% from Africa, and 52% from Asia — but only 36% from Europe, Canada, and Oceania. (Source: Migration Policy Institute)

02/10/2020 - USCIS to Begin Implementing Public Charge Rule as of February 24

From The National Law Review, 02/10/2020

On January 30, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin implementing the new public charge regulations on February 24, 2020. The regulations broadly expand the list of public benefits that can be considered, as well as the discretion given to immigration officers when deciding whether someone is “more likely than not” to become a public charge.

The rule was originally scheduled to take effect on October 15, 2019 but was blocked by nationwide injunctions filed by several federal judges across the country. The Supreme Court of the United States recently ruled in favor of the Trump administration to allow implementation of the regulations while legal challenges play out in the lower courts. The public charge rule will not be applied in the State of Illinois where a statewide injunction is still in place.

The public charge rule applies to certain adjustment of status (also known as green cards) applicants, as well as nonimmigrants seeking to change their status or extend their stay. USCIS will apply the new standards to applications or petitions that are postmarked on or after February 24, 2020.

USCIS will release new and updated application forms the week of February 3, 2020, giving employers some time to adjust filing practices. Based on drafts released in October, the forms are expected to require significant amounts of personal information and supporting documentation including a credit report. In conjunction with adjustment of status filings, USCIS will also require an additional form, the I-944, Declaration of Self-Sufficiency.

Summary of Key Changes

Some of the key changes included in the new public charge regulations include the following.

Definition of Public Charge. The regulations define a “public charge” as an individual who receives one or more “public benefits” for more than 12 months in the aggregate within any 36-month period. Under the rule, receipt of two benefits in the same month will count as two months. This definition will apply only to those public benefits received on or after February 24, 2020.

Public Benefits. USCIS has expanded the list of benefits that are considered “public benefits” to include all of the following:

Supplemental Security Income (SSI)

Temporary Assistance for Needy Families (TANF)

Any federal, state, local or tribal cash assistance for income maintenance

Medicaid (with limited exceptions)

Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps)

Any benefits related to institutionalization for long-term care at government expense

Section 8 Housing Choice Voucher Program and Rental Assistance Program

Public Housing

Weighted Factors. USCIS will analyze each applicant based on the totality of the circumstances. Under the regulations, immigration officers are authorized to weigh certain factors more heavily when deciding whether an individual is likely to become a public charge. Examples of negatively weighted factors include poor health, lack of private health insurance, low credit score, debt, inability to speak English, and lack of education and/or work history. USCIS will heavily weigh an income of at least 250 percent of the federal poverty guidelines for the individual’s household size as a positive factor.

Form I-944, Declaration of Self-Sufficiency. USCIS will require Form I-944 in addition to an Affidavit of Support for adjustment of status applicants. Draft versions of the form have included questions and require the submission of documentation related to household income and assets, debts and liabilities, credit history, use of public benefits, education level, employment history, health insurance, etc.

Public Charge Bond. USCIS may allow individuals to post a public charge bond if the individual is otherwise admissible.

Nonimmigrants. Nonimmigrants seeking to change their status or extend their stays will be required to prove that they have not received one or more public benefits for more than 12 months in the aggregate within any 36-month period since obtaining the nonimmigrant status that they seek to change or extend. This will only apply to public benefits received on or after February 24, 2020.

12/16/2019 - Expect More Lawsuits And Restrictions On H-1B Visas In 2020

FROM FORBES 12/16/2019

The year 2020 is unlikely to be an improvement over 2019 for companies that hire foreign-born scientists and engineers on H-1B visas. Companies should expect 2020 to bring more restrictions.

An H-1B is generally the only practical way for an international student or a high-skilled foreign national educated abroad to work long-term in the United States. Under Trump administration policies, denial rates for H-1B petitions for initial employment (primarily new employees) quadrupled, “rising from 6% in FY 2015 to 24% through the third quarter of FY 2019,” according to a National Foundation for American Policy analysis. “The 12% denial rate for continuing employment [mostly for existing employees] is also historically high – 4 times higher than the denial rate of only 3% for H-1B petitions for continuing employment as recently as FY 2015.”

In a stable policy environment that adheres to the law and regulations, H-1B denial rates should be extremely low, since, given the time and expense, companies and attorneys only submit applications for individuals they believe meet the legal requirements.

Three developments in 2020 may affect H-1B visas. First, U.S. Citizenship and Immigration Services (USCIS) has announced it will implement an electronic registration for “petitioners seeking to file H-1B cap-subject petitions.” A $10 fee will be charged for each registration. “You may submit as many beneficiaries as you would like for one registrant (employer/agent) in one registration,” according to information on the USCIS H-1B registration tool released online. Employers would list each professional and he or she would be entered into the “lottery” held in April each year for 65,000 H-1B petitions and the 20,000-exemption from the annual limit for foreign nationals with advanced degrees from U.S. universities. “USCIS will open an initial registration period from March 1 through March 20, 2020,” according to an agency press release.

“The new H-1B registration system will likely dramatically increase initial applications,” said Dagmar Butte, a partner at Parker, Butte & Lane, in an interview. She thinks smaller employers potentially could be “squeezed out” under the new system. “In addition, since the government has not been entirely clear about the post-selection process and timing, it is likely that a scramble to complete and file petitions will ensue that will create significant time pressure on employers and their attorneys.”

This assumes the system is implemented in 2020. “Our worst nightmare is that the announced electronic registration system for the lottery either doesn’t work as intended or is stopped at the 11th hour and leaves hundreds of thousands of potential applications unprepared,” said Butte. “Most attorneys recommend that employers have at least a skeletal application ready to go in case USCIS decides to scrap the registration at the last minute.” There is also a potential for problems at the Department of Labor, which could experience an influx of labor condition applications (another part of the H-1B process) after the lottery selections are made.

11/29/2019 - USCIS Implements $10 Fee for H-1B Visa Registration

WASHINGTON—U.S. Citizenship and Immigration Services today announced a final rule that will require a $10 non-refundable fee for each H-1B registration submitted by petitioning employers, once it implements the electronic registration system. The registration fee is part of an agency-wide effort to modernize and more efficiently process applications to live or work in the United States.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.

Upon implementation of the electronic registration system, petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, will first have to electronically register with USCIS during a designated registration period, unless the requirement is suspended.

“This effort will help implement a more efficient and effective H-1B cap selection process,” said USCIS Acting Director Ken Cuccinelli. “The electronic registration system is part of an agency-wide initiative to modernize our immigration system while deterring fraud, improving vetting procedures and strengthening program integrity.”

The final rule, Registration Fee Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens, is effective Dec. 9, 2019, and the fee will be required when registrations are submitted. USCIS is fee-funded, and this non-refundable fee will support the new electronic registration system to make the H-1B cap selection process more efficient for both petitioners and the agency.

USCIS is slated to implement the registration process for the fiscal year 2021 H-1B cap selection process, pending completed testing of the system. The agency will announce the implementation timeframe and initial registration period in the Federal Register once a formal decision has been made, and USCIS will offer ample notice to the public in advance of implementing the registration requirement.

USCIS published a notice of proposed rulemaking highlighting a registration fee on Sept. 4, 2019, which included a 30-day public comment period. USCIS received only 22 comments during that time, and has considered all submissions and offered public responses ahead of announcing the final rule, which is effective on Dec. 9.

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