Articles Posted in Policy

wei-ding-ndMOb0OBCx0-unsplash

The Trump administration’s controversial rule making certain foreign nationals inadmissible to receive permanent residence on public charge grounds, will become effective beginning October 15, 2019.

First, and foremost let’s recap what this rule is about and who it will apply to:

Under immigration law, an individual who, in the opinion of DHS is likely at any time to become a public charge is (1) ineligible for a visa (2) ineligible for admission to the United States and (3) ineligible for adjustment of status (permanent residence).

This means that the rule applies to foreign nationals applying for a U.S. visa, foreign nationals seeking admission through a port of entry, and individuals applying for adjustment of status.

When an individual applies for any immigration benefit with the government, (whether a U.S. visa or green card application), the official adjudicating the petition must determine whether that individual is or will likely become a public charge. This determination is referred to as a “public charge determination.”

What makes someone a public charge in the eyes of immigration?

A person is a “public charge” if they are primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.

Continue reading

jessica-radanavong-0ZkAINlmtOs-unsplash

On August 28, 2019, the United States Citizenship and Immigration Services (USCIS) issued new policy guidance defining “residence” as it relates to U.S. Citizenship.

The new policy guidance clarifies what it means to “reside in the United States” for the purpose of acquiring citizenship and sets out new policy guidelines as it relates to the acquisition of citizenship of children of U.S. government employees and U.S. armed forces members employed or stationed outside the United States.

Effective October 29, 2019, children residing abroad with their U.S. citizen parents (who are U.S. government employees or members of the U.S. armed forces stationed abroad) will not be considered to be residing in the United States for acquisition of citizenship. Similarly, leave taken in the United States while stationed abroad is not considered residing in the United States even if the person is staying in property he or she owns.

Therefore, U.S. citizen parents who are residing outside the United States with children who are not U.S. citizens should apply for U.S. citizenship on behalf of their children, by filing Form N-600K Application for Citizenship and Issuance of Certificate Under Section 322 and must complete the process before the child’s 18th birthday.

The child of a member of the U.S. armed forces accompanying his or her parent abroad on official orders may be eligible to complete all aspects of the naturalization proceedings abroad. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.

Continue reading

legal-1143114_1920

On August 20, 2019, Immigration and Customs Enforcement (ICE) announced “enhanced coordination” efforts to remove Guatemalan adults and families arriving at the border more quickly. These efforts have been implemented to discourage Central Americans from attempting to enter the United States illegally and to deter human smuggling.

Acting Associate Director of ICE ERO Timothy Robbins made the following statement regarding these enforcement actions, “Breaking U.S. laws by illegally entering the United States is an ineffective manner to petition to legally remain in the United States. Ultimately, if you have no basis to remain in the United States, you will be apprehended and returned to your home country.”

ICE has announced that since mid-July it has implemented a more streamlined process to expeditiously remove Guatemalans who have no basis to remain in the United States.

According to ICE, this process allows the US to repatriate these individuals, “without utilizing resources to house aliens or manage their cases while they await immigration or removal proceedings out of custody.”

Continue reading

bernard-hermant-5zu86kyV_UY-unsplash

On Wednesday, the Trump administration announced a proposal that will change the settlement agreement reached in Flores v. Reno, an agreement that limited the amount of time and conditions under which the U.S. government could detain immigrant children.

Reno v. Flores prevented the government from holding immigrant children in detention for over 20 days. The Trump administration is now seeking to do away with that prohibition and hold undocumented families traveling with children for an indefinite period of time.

In a press conference on Wednesday, Acting DHS Secretary Kevin McAleenan, announced the administration’s plans to publish a final rule in the Federal Register to do away with the Flores rule. The rule would become effective 60 days after publication. The proposal however will likely be met with great opposition and result in years long litigation.

Continue reading

trump-2387091_1920

USCIS will be publishing a final rule on August 14, 2019, in the Federal Register, that expands the list of public benefits that make a foreign national ineligible to obtain permanent residence and/or an immigrant or nonimmigrant visa.

The Immigration and Nationality Act makes inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission and (3) ineligible for adjustment of status, any alien who, in the opinion of the DHS is likely at any time to become a public charge.

The process of determining whether an alien is likely to become a public charge is called a “public charge determination.”

Receipt of certain public benefits leads to a “public charge determination” meaning that the applicant is ineligible to receive the benefit they are requesting (such as permanent residence) based on the fact that they are likely to become a public charge to the United States government.

What is a public charge?

A person is a “public charge” if they are primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.

The final rule expands the scope of this definition by making a public charge any alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.

Under the final rule announced today, immigration will now be taking into consideration the following benefits to determine whether an individual is or is likely to become a public charge to the U.S. government:

Reliance on or receipt of non-cash benefits such as:

  • Cash benefits for income maintenance
  • SNAP (food stamps)
  • Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program
  • Section 8 Project-Based Rental Assistance, and
  • certain other forms of subsidized housing.

In addition, the government will continue to take into consideration the following types of benefits:

  • Temporary Assistance for Needy Families (TANF)
  • Supplemental Security Income (SSI)
  • Medicaid

Continue reading

fence-3585348_1920

Today, July 16, 2019, the Department of Homeland Security and Department of Justice issued a joint interim Final Rule that has been published in the Federal Register and is effective immediately.

The interim Final Rule aims to place additional restrictions on the asylum application process and limit the eligibility of individuals seeking to apply for asylum.

What is the Rule about?

The Departments of Justice and Homeland Security are revising 8 C.F.R. § 208.13(c) and 8 C.F.R. § 1208.13(c) to add a new bar to eligibility for asylum for an alien who enters or attempts to enter the United States across the southern border, but who did not apply for protection from persecution or torture where it was available in at least one third country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which he or she transited en route to the United States.

In a Nutshell:

With the passage of this rule, applicants for asylum who enter or attempt to enter the United States across the southern border, without having applied for protection in a third country outside their country of citizenship, nationality, or last lawful habitual residence, will not be eligible for asylum.

Continue reading

29936853911_6774afae33_z

Photo: CafeCredit

The Trump administration is mobilizing to strictly enforce laws that require the reimbursement of funds from an alien’s financial sponsor, where the alien has requested certain types of public benefits from a government agency.

The White House has issued a memorandum stating that, “Financial sponsors who pledge to financially support a sponsored alien in the event the alien applies for or receives public benefits will be expected to fulfill their commitment under the law.”

Financial sponsors are required to sign Form I-864 Affidavit of Support for most family-based immigrant petitions, as well as some employment-based petitions to show that the intending immigrant has adequate means of financial support and will not become a public charge on the United States government.

The White House has directed various government agencies including the Department of labor, housing, health and human services, etc. to hold sponsors accountable for making a financial commitment to sponsor an alien in the United States, who receives forms of government assistance they are not entitled to receive.

Such benefits that will require reimbursement from a financial sponsor are benefits received from the Supplemental Nutrition Assistance Program (SNAP) which provides food stamps, Medicaid, and Temporary Assistance for Needy Families (TANF).

Continue reading

8566361276_1c793d2502_b

Ken Cuccinelli Photo by Gage Skidmore
Source: Flickr

New developments in the world of immigration have just emerged. The director of the United States Citizenship and Immigration Services (USCIS), L. Francis Cissna, has been forced to resign.

Cissna has served under the Trump administration since October 2017. During his tenure, Cissna oversaw major policy changes within the agency, including the President’s travel ban, the court’s rebuke of the travel ban, the termination of the DACA program, and the Trump administration’s efforts to limit asylum processing for Central Americans.

update-1672346_1920
On May 10, 2019, USCIS made important updates to its policy manual regarding public services which appear in PA-2019-03.

USCIS has clarified its policy regarding responses to service requests. It is the goal of USCIS to respond to a service request within 15 calendar days from the date the service request was filed with USCIS.

Requests Receiving Priority

studying-951818_1920

On August 8, 2018, DHS issued a policy memorandum directing USCIS to change the way in which the agency counted the days of unlawful presence for F, M, and J status violators.

Under that policy memorandum, F, M, and J nonimmigrants who accrued more than 180 days of unlawful presence during a single stay, and then departed the United States, would trigger either a 3- or 10-year bar to admission depending on the period of unlawful presence accrued in the United States prior to departure. The new policy would begin counting the days of unlawful presence the day after an F, M, or J status violation, unless an exception applied.

These bars would prevent the foreign national from applying for an immigration benefit in the future, without the approval of a waiver of inadmissibility.

This policy was to become effective on August 9, 2018; however, it quickly grew controversial and inspired a slew of lawsuits. Prior to this attempted policy change, USCIS did not begin counting a period of unlawful presence until a USCIS immigration official or immigration judge made a formal finding of a status violation.

Continue reading