Tag: USCIS

Delays at USCIS Affecting F-1 Students with Work Authorization

With delays at USCIS lockbox and service centers due to COVID-19 and an unprecedented number of applications, those seeking to apply or renew their Employment Authorization Documents (EAD) have experienced issues in commencing or continuing employment.   One class of impacted nonimmigrants is F-1 students, who may apply for work authorization after graduation, called Optional Practical Training (OPT), and if the student has graduated with a STEM degree, may apply for an additional 24 months of STEM OPT.  Below are outlined issues, USCIS responses, and other considerations for both OPT and STEM OPT EAD applications.

Initial OPT period (12 months)

Issue

For students applying for their initial 12 months of OPT, they must complete the 12 months within 14 months of the end of their program.  Due to delays from USCIS because of backlogs, the EAD applications can take several months to receipt, let alone adjudicate.  A student applying for an EAD may apply up to 90 days before, and 60 days after, their program end date, but it now takes more than 90 days to confirm receipt, and then even more time to receive an EAD, which is necessary to begin employment.

USCIS response

USCIS issued an announcement that allows for flexibilities within the 14 month OPT period.  Because of delays, USCIS will now allow the 14 months’ clock to start ticking when the EAD application (Form I-765) has been approved, and not start the clock from the program end date.  If a student receives an EAD that “shorts” them this time, they may request USCIS to issue a new EAD.  In addition, because USCIS allows 60 days after a program end date to apply for an EAD, the announcement also covers rejections of EAD applications, and the ability to refile the application if it was filed after October 1, 2020, and before May 1, 2021.  In addition, the refiles need not contain a new Form I-20.

Other Considerations

What is not addressed are current backlogs at USCIS that is delaying not only the issuance of receipt notices, but also the adjudication of EAD applications.  Even though USCIS is giving the full 12 months of OPT from the time the EAD application is filed, the delays will still affect graduates and their start dates if they cannot start without an EAD in hand.

STEM OPT Extensions

Issue

Students who graduate with a STEM degree may apply for an additional 24 months of STEM OPT.  The application can be filed up to 90 days prior to the expiration of the initial EAD period, and up to the expiration of the card.  EAD applications filed on time (prior to the expiration of the card) will be granted an automatic 180 day work authorization period.  Traditionally, if the card has expired and the 180 day automatic extension has commenced, the student and employer have confirmation the EAD application was filed timely due to the receipt notice issued by USCIS, even if the application is not yet adjudicated.  Due to delays, a student may not receive the receipt notice even after 90 days of sending in the application.

USCIS response

USCIS reminds its stakeholders that a receipt notice is not indicative of an F-1 student’s ability to remain employed.  In fact, the I-9 rules do not use the receipt notice as proof of work authorization, but dictate that the endorsed I-20 issued by the school, as well as the expired EAD, are the necessary documents to confirm work authorization.  In addition, as with the initial OPT EAD filings, USCIS will allow for refiles if the application is rejected with no penalty, if the STEM EAD extension was filed between October 1, 2020 and May 1, 2021, without requiring a new Form I-20.

Additional considerations

There is more flexibility when the application is a STEM OPT extension because of the 180 day automatic extension.  However, due to the issues of receipt issuance and adjudication, the EAD may not be issued within the additional 180 days, and there is currently no solution to that situation.

USCIS continues to show that it will modify its policies to address the ongoing COVID-19 situation and delays with the lockbox.

©2020 Greenberg Traurig, LLP. All rights reserved.

ARTICLE BY Kristen W. Ng of Greenberg Traurig, LLP
For more, visit the NLR Immigration section.

DHS Rules Effective August 2020 Will Push Asylum Seekers Further into Poverty and Marginalization

In late June 2020, the Department of Homeland Security (DHS) announced two regulatory changes intended to deprive asylum applicants of the ability to work lawfully in the United States while they await the adjudication of their asylum applications.  By increasing the obstacles asylum seekers overcome to obtain an Employment Authorization Document, commonly known as a “work permit,” the new rules endanger the health and safety of asylum seekers and their families.

The first rule change, effective August 21, 2020, eliminates the requirement that USCIS must process employment authorization applications within 30 days of receiving the application.  This rule change allows USCIS to adjudicate work permit applications for an indeterminate period of time, which will inevitably result in delays.  The government claims this move will deter immigrants from filing “frivolous, fraudulent, or otherwise non-meritorious [asylum] claims.”  But the rule change is more likely to force asylum seekers further into poverty and informal economies, thereby making it more difficult for them to meet their basic needs.

The second rule change, effective August 25, 2020, severely restricts eligibility for work permits while simultaneously increasing the waiting time for work permits.  This too will have dire consequences for asylum seekers struggling to survive while their asylum applications remain pending.  The new measures mandate the government to:

  1. substantially delay the issuance of work permits by more than doubling the waiting period to apply from 150 days to 365 days;
  2. bar asylum seekers from receiving a work permit if they attempt to enter the United States without inspection on or after August 25, 2020, unless they qualify for very limited exceptions;
  3. deny employment authorization for asylum seekers who file their asylum application after the one-year filing deadline, unless granted an exception;
  4. prohibit employment authorization for applicants who have been convicted of certain crimes or who are “believed” to have committed a serious non-political crime outside the United States;
  5. deny employment authorization applications if the underlying asylum application has experienced “unresolved applicant-caused delays,” such as a request to amend or supplement the asylum application or if the application is being transferred to a different asylum office due to a change in the applicant’s address;
  6. automatically terminate an asylum seeker’s work permit without provision for renewal if an immigration judge denies the asylum case and the applicant does not appeal to the Board of Immigration Appeals (BIA) within 30 days, or if the applicant does appeal but the BIA denies the appeal; and
  7. limit the employment authorization validity period to a maximum of two years.

The effects of these new directives will be devastating. Currently, the inability to work lawfully for at least six months after seeking asylum often leaves applicants homeless, hungry, and without access to health care.  Because federal law does not provide support such as income, housing, or food assistance to asylum applicants, dramatically increasing the waiting period for a work permit will exacerbate the conditions of poverty in which many asylum applicants find themselves.  Without employment authorization, asylum seekers cannot obtain health insurance under the Affordable Care Act, and often cannot apply for a driver’s license or benefit from public assistance programs that offer safe housing and access to food.  Federal law permits states to provide state-funded benefits to asylum seekers, but only about half of the states have extended benefits to that population.   Even when states do provide some public benefits to asylum applicants, it is often only for children, the elderly, or asylum seekers with specific health conditions.

Given these consequences, pro bono attorneys representing asylum seekers who are eligible to apply for a new work permit or to renew an existing work permit now should consider filing employment authorization applications before August 21, when the first of these rules goes into effect.

 

© 2020 Proskauer Rose LLP.

ARTICLE BY Erin M. Meyer and Angela Gichinga at Proskauer Rose LLP.
For more on the topic, see the National Law Review Immigration Law section.

New USCIS Policy Guidance Alters Criminal Sentence Evaluation, Clarifies Definition of “Good Moral Character”

U.S. Citizenship and Immigration Services (USCIS) recently adopted new policy guidance altering the way immigration officers evaluate criminal sentences and make good moral character determinations. These changes may impact a foreign national’s eligibility for certain immigration benefits, including admissibility as a visa holder, permanent resident, or naturalized citizen.

USCIS’s recent policy guidance changes include the following:

Post-Sentencing Charges

What changed?

USCIS incorporated into policy Attorney General William Barr’s recent decision in Matter of Thomas and Thompson that, for immigration purposes, the relevant term of imprisonment or sentence for a criminal act will generally be the original sentence imposed by a state court.

What’s the impact?

Where a state court order subsequently modifies, clarifies, or vacates the original sentence, the new term of imprisonment or sentence will only be relevant for immigration purposes if the change was due to a procedural or substantive defect in the underlying criminal proceeding. If such a change was based on other considerations—such as rehabilitation or the avoidance of immigration consequences—the original sentence will still be considered for purposes of immigration decisions.

DUI Convictions

What changed?

USCIS also incorporated into policy the attorney general’s decision in Matter of Castillo-Perez that two or more convictions for driving under the influence (DUI) during the relevant lookback period may affect a foreign national’s good moral character determination.

What’s the impact?

Convictions for multiple DUIs will likely prompt an assessment by USCIS to determine whether the foreign national is a “habitual drunkard,” which would statutorily preclude him or her from possessing good moral character under the immigration regulations. Further, evidence of rehabilitation subsequent to two or more DUI convictions is insufficient on its own to rebut the presumption that a foreign national lacks the required showing of good moral character. Rather, the foreign national must provide evidence that good moral character was sustained for the entire lookback period, even at the time of the DUI convictions.

Conditional Bars for Unlawful Acts

What changed?

USCIS expanded its policy guidance to provide examples of unlawful acts that may prevent a foreign national from meeting the good moral character requirement for certain immigration benefits. The agency also emphasized the discretion of immigration officers to determine if the commission of an unlawful act reflects negatively on a foreign national’s moral character, and whether there were any extenuating circumstances involved.

What’s the impact?

Immigration officers may look to an expanded list of unlawful acts recognized as a bar to good moral character, including but not limited to:

  • failure to pay or file taxes;
  • false claim to U.S. citizenship;
  • falsification of records;
  • unlawful registration to vote; and
  • unlawful voting.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

For more USCIS policy guidance, see the National Law Review Immigration Law page.

USCIS Announces More Fees and Fee Increases

Nearly 96% of the USCIS budget derives from fees. In our coverage of Congress, appropriations, continuing resolutions, and government shutdowns, we are reminded that USCIS is a fee-driven agency, as it does not depend on appropriations for its operations and, for example, remains open during government shutdowns over appropriations. We wrote last week about a $10.00 fee for H-1B Registration.

On Nov. 8, USCIS published a notice of proposed rulemaking for an adjustment of fees to meet operational needs. Among the diversity and breadth of fees addressed in the Examinations Fee Accounts 300+ page posting, a few proposed fees have received a lot of public attention:

  • DACA renewal fee from $495 to $765;

  • $50 dollar asylum application fee; and

  • Citizenship application fee from $640 to $1170.00, among others.

As we enter public discourse on the current Continuing Resolution and related Congressional discussions, we remind readers that in all likelihood USCIS will be fee-funded and open for business!

©2019 Greenberg Traurig, LLP. All rights reserved.

For more USCIS news, see the National Law Review Immigration Law page.

Update on the Public Charge Rule

Despite litigation that enjoined USCIS from proceeding with the implementation of the Public Charge Rule, Department of State (DOS) seemed ready to proceed with it at Consulates abroad.

But, as of this week, DOS is no longer “fast-tracking” the Public Charge Rule. It withdrew its request for emergency review of its new public charge form, DS-5540, that it proposes to use to determine if applicants are “self-sufficient and not a strain on public resources” and, on October 24, 2019, began a 60-day comment period.

Once the comment period is over, Office of Management and Budget (OMB) review will take place. How long that review will run is hard to know. If the experience with the OMB review of another controversial Trump Administration rule – the rescission of the H-4 EAD Rule – provides any indication, the review could go on for months.

Jackson Lewis P.C. © 2019
For more developments, see the National Law Review Immigration law page.

DHS Proposes Fee of $10 to File H-1B Petition

Department of Homeland Security (DHS) has proposed a fee of $10 per H-1B petition. The agency considers this to be an “appropriate, nominal fee” to recover some costs involved.

In January 2019, DHS published the rule establishing an H-1B electronic registration system. At that time, no fee was proposed, but the “door was left open.” In mid-August, DHS announced that there would be a fee.

As to what information will be required, that is still a bit up in the air – again, the door is left open by DHS. The agency wants enough information to be able to check for fraud, duplicate registrations filed by the same company, and to ensure that those selected during the registration period ultimately file H-1B petitions. In addition to company identification, each registration would include the beneficiary’s:

  • Full name
  • Date of birth
  • Country of birth
  • Gender
  • Passport number

Each registration also will require the petitioner to complete an attestation about the “bona fides” of the registration. Frivolous registrations, DHS warns, “may be referred to appropriate federal law enforcement agencies for investigation and further action as appropriate.” Under a “catch-all,” DHS could require: “any additional basic information requested by the registration system to promote certainty.”

Some concerned about frivolous registrations suggested that information include job title, worksite address, salary offers, SOC code, LCA wage level, and specific educational qualifications. Others suggested including disclosure of any recent labor violations or disputes and EEOC complaints and whether the petitioner is H-1B dependent. DHS rejected these ideas (for now), noting that much of that information would be used to review eligibility once an H-1B petition is filed.

Questions remain about what DHS does with the information it gathers during the electronic registration. In accordance with the Administration’s “Buy American, Hire American” Executive Order,  DHS is already gathering and sharing much information on its H-1B Data Hub. The public can search the number of H-1B approvals and denials by company and by year. The public also can see, by employer, the number of approved H-1B petitions by salary and degree type. In addition to making the information public, DHS has stated in a description of the H-1B registration tool that it “may share the information with other Federal, State, local and foreign government agencies” and “may also share [the] information, as appropriate, for law enforcement purposes or in the interest of national security.” The full scope of this statement is not yet known.

It is unclear whether the electronic registration will be ready in 2020 or when the promised trial period for stakeholders will occur.

Jackson Lewis P.C. © 2019

ARTICLE by Amy L. Peck of Jackson Lewis P.C.
For more on DHS filing, see the National Law Review Immigration Law page.

Modernization at Last: Insight to the Newly Published EB-5 Modernization Rules … Now the Race is On …

On July 23, 2019, United States Citizenship and Immigration Services’ (USCIS) regulations to update the Immigrant Investor Program were published in the Federal Register. The new EB-5 Immigrant Investor Program Modernization rules (New Rules) amend the historic Department of Homeland Security (DHS) regulations governing the employment-based, fifth preference (EB-5) immigrant investor classification and associated regional centers to reflect statutory changes and modernize the EB-5 program. The New Rules are creating quite a buzz in the EB-5 community with good reason. Of particular note, the New Rules modify the EB-5 program by:

  • Increasing the required minimum investment amounts;

  • Providing the long-awaited priority date retention to EB-5 investors in certain cases;

  • Amending targeted employment area (TEA) designation criteria;

  • Centralizing TEA determination;

  • Clarifying USCIS procedures for the removal of conditions on permanent residence fulfilment;

  • Providing for periodic minimum investment increases henceforth; and

  • Implementing a myriad other amendments.

The New Rules are effective 120 days from publication, which is November 21, 2019. The effective date of the New Rules presupposes that Congress will extend the EB-5 Program’s current sunset date of September 30, 2019. USCIS clarified that it will adjudicate investors, who file a Form I-526 petition before November 21, 2019, under the current EB-5 program rules. Now the race is on to initiate and complete investments by the effective date.

The “New” EB-5 Program: A Closer Look at Certain Changes.

Increased Minimum Investment. To account for inflation since the commencement of the EB-5 Program, the New Rules increase the minimum investment amount per investor to participate to $900,000 (from $500,000) if the project is located in a TEA or to $1.8 million (from $1 million) if not in a TEA. This increased amount commences on November 21, 2019. For many this is good news as the minimum investment amount increase is substantially lower than DHS’ initial proposal to increase to $1.35 million. To further adjust for inflation, the New Rules provide for periodic increases henceforth to the minimum investment every five years. USCIS proposes that this fixed schedule will create “predictability and consistency” by allowing EB-5 participants to plan accordingly.

TEA Determination. The amendments to TEA’s determination procedures that commence on and after November 21, 2019, are a hot topic. The biggest change in the New Rules is the abolishment of state sovereignty in the TEA determination process. No longer will the state in which the project is located determine TEA qualification. USCIS, which operates under DHS, will review and determine the designation of high-unemployment TEAs. EB-5 program stakeholders believe this change alone will dramatically limit the number of projects that qualify as a TEA, which could lead to an obsolescence of the EB-5 program. Also of note, the New Rules provide that any city or town with a population of 20,000 or more, whether inside or outside of a metropolitan statistical area, may qualify as a TEA henceforth. The New Rule also provides that a TEA may consist of a census tract or contiguous census tracts in which the new commercial enterprise (NCE) is principally doing business if the NCE is located in more than one census tract, and the weighted average of the unemployment rate for the tract or tracts is at least 150% of the national average. The applicability of TEA status to rural areas remains unchanged. Thus, only projects in metropolitan areas are at risk of no longer qualifying as a TEA under the New Rules after November 20, 2019.

DHS supports these steps with the position that the New Rules will ensure consistency in TEA adjudications by directing investment to areas most in need and increase the consistency of how high-unemployment areas are defined in the program. Of note, the New Rules do not include any preference for rural and urban distressed areas, notwithstanding the proposals for visa set-asides for such project. In addition, the New Rules do not integrate TEA determination with the new qualified opportunity zone designations under the 2017 Tax Cuts and Job Creation Act. These provisions might be addressed legislatively by Congress as part of a reauthorization bill this year. Some EB-5 stakeholders believe that Congress might overrule the New Rules in part (i.e., regarding the minimum investment amount and TEA changes) plus enact additional modernization rules such as authorizing additional visas, etc.

Priority Date Retention. For many years, both Congress and USCIS have recognized the value of a modification to the EB-5 Program to permit EB-5 investors to retain their visa priority date if they are required to amend their EB-5 petition for reasons unrelated to their own doing. The New Rules will allow EB-5 investors to use the priority date of a previously approved EB-5 petition. If and when an investor needs to file a new EB-5 petition, they can now retain the priority date of the previously approved petition, subject to certain exceptions.

An EB-5 immigrant petition’s priority date is normally the date on which the petition was properly filed. In general, when demand exceeds supply for a particular visa category, an earlier priority date is more advantageous. DHS will allow an EB-5 immigrant petitioner to use the priority date for a subsequently filed petition for the same classification for which the petitioner qualifies (unless the petition is revoked for material error, fraud or willful misrepresentation). We note that the New Rules allow an EB-5 petitioner to retain the priority date from an approved Form I-526 petition for a subsequently filed Form I-526 on or after November 21, 2019.

Removal of Conditions on Permanent Residence. The New Rules clarify that derivative family members must file their own Form I-829 to remove conditions on their permanent residence if they are not included in the principal petitioner’s I-829 petition. In addition, the New Rules streamline the adjudication process for removing conditions by providing flexibility in interview locations.

What happens next?

Until November 21, 2019, foreign investors, regional centers, developers and job-creating entities can rely on the existing rules. We urge those considering participation in the EB-5 program who desire to be grandfathered under the current law and the minimum investment amount of $500,000 to invest as soon as possible. As discussed above, if a project’s location in the market no longer qualifies as a TEA, then the minimum investment amount increases to $1.8 million, not just to $900,000. Accordingly, we recommend amending offering documents to include a discussion of the additional risks caused by the New Rules; principal among them is the potential inability to raise funds after November 21.

Regarding future viability of the EB-5 program, the increased investment amount may cause foreign investors to look to other United States programs, such as the L-1 and EB-1, as multinational executive or may look to the immigrant investor programs in other countries with a lower investment amount than the United States.[1]

[1] https://www.eb5investors.com/eb5-basics/international-immigrant-investor-programs

© Polsinelli PC, Polsinelli LLP in California
Article by Debbie A. Klis of Polsinelli PC.
For more on EB-5 immigration developments, see the National Law Review Immigration Law page.

USCIS Will Begin Accepting Cap-Subject H-1B Petitions for Fiscal Year 2020 on April 1, 2019

U.S. Citizenship and Immigration Services (USCIS) will accept new H-1B petitions subject to the annual quota for fiscal year 2020 (FY 2020) starting April 1, 2019. Employers should identify any current or future employees who may require new H-1B visas to work in the United States. Individuals currently holding F-1 student visas, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside the United States likely will require cap-subject H-1B petitions to be filed on their behalf.

Overview of the H-1B Visa Program

The H-1B visa program permits U.S. companies to employ foreign nationals in specialty occupations. A “specialty occupation” is a position that requires the theoretical or practical application of a body of highly specialized knowledge, such as that of an engineer, economist, or scientist. The specialty occupation must require a bachelor’s degree or higher (or its foreign equivalent) in a specific field.

The number of new H-1B visas available on an annual basis is subject to limitations for each fiscal year. Currently, the annual limit is 65,000 visa numbers per year with an additional 20,000 available to H-1B applicants who possess advanced degrees from U.S. academic institutions. Of the 65,000 available H-1B visas, 6,800 are reserved for citizens of Chile and Singapore. Due to the cap, employers will want to plan far in advance and file their cap-subject petitions as early as possible to help ensure they have the best chance to secure H-1B status for the next fiscal year.

When USCIS receives more cap-subject H-1B petitions than the annual fiscal year limitation, USCIS conducts a computer-generated random lottery selection process. The first lottery is limited to individuals who possess advanced degrees from U.S. academic institutions. If a qualifying advanced degree holder is not selected in this first lottery, his or her petition will be rolled into a second lottery for the regular H-1B cap.

Cap-subject petitions that have not been selected in the lottery will be returned with the U.S. government filing fees. Once the number of available H-1B visas has been fulfilled, USCIS will not accept or approve any additional cap-subject H-1B petitions until the filing period for the next fiscal year opens.

Cap-Exempt Petitions

Some H-1B petitions are exempt from the annual fiscal year limitation, including (1) H-1B petitions that are filed to extend or amend H-1B employment for foreign workers who are already in H-1B status and (2) petitions filed on behalf of new workers to be employed in H-1B status by institutions of higher education or related nonprofit entities, nonprofit research organizations, or government research organizations.

How to Prepare for the FY 2020 H-1B Cap

The annual fiscal year cap for H-1B visas is typically reached within the first week of filing. Because the number of cap-subject H-1B petitions that will be filed by employers for FY 2020 is uncertain, employers will want to mail all cap-subject H-1B petitions early within the filing window. The first day to mail FY 2020 cap-subject petitions will be March 29, 2019, for delivery to USCIS on April 1, 2019, which is the first day of the filing period. Employers should immediately begin identifying individuals for whom H-1B sponsorship will be needed to allow sufficient time for H-1B petition preparation.

In preparing FY 2020 H-1B petitions, employers should keep in mind the time required to file and receive certification of a Labor Condition Application (LCA). The LCA is a prerequisite to a properly filed H-1B petition. As part of the LCA, employers must attest that they will pay the H-1B worker the higher of the prevailing wage or actual wage for the position in the geographic area of intended employment. The LCA is then submitted to the U.S. Department of Labor, which can take up to 10 days to certify the application. Employers should keep this processing time in mind to ensure timely approval of an LCA. Timely filing and approval of an LCA will help ensure that an employer is best positioned to mail the H-1B cap-subject petition on March 29, 2019, for delivery to USCIS on April 1, 2019.

Employers can take action now to initiate cap-subject H-1B petitions.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Proposed Immigration Rule – Inadmissibility on Public Charge Grounds

USCIS has proposed rules that could deny entry to non-immigrants seeking admission to the United States and adjustment of status to permanent residence to immigrants if they rely on public benefits for food, housing or medical care, and other forms of public assistance. The proposed rule – “Inadmissibility on Public Charge Grounds” – is published in the Federal Register. The public may comment on the proposed rule during the 60-day comment period ending on Dec. 10, 2018. USCIS will review comments to the proposed rule and then revise and issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.

Pursuant to Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

Under 8 U.S.C. § 1601 (PDF)(1), “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Further under 8 U.S.C. § 1601 (PDF)(2)(A), “It continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

While self-sufficiency has been the guiding principle of U.S. immigration law, as indicated in the above federal regulations, “public charge” has not been defined in statute or regulations. According to USCIS, there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge. In determining inadmissibility USCIS has used the definition of “public charge” as an individual who is likely to become “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.” (See, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, USCIS considers several factors, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

The proposed rule will apply to foreign nationals seeking admission to the United States on non-immigrant and immigrant visas, as well as those non-immigrants who have availed themselves of public benefits within the United States and are seeking to seeking to either extend their stay or change their status. Under the proposed rule, USCIS would only consider the direct receipt of benefits by the individual alien applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the alien applicant is likely to become a public charge.

Factors that would generally weigh heavily in favor of a finding that an individual is likely to become a public charge include the following:

  • The individual is not a full-time student and is authorized to work, but cannot demonstrate current employment, has no employment history, or no reasonable prospect of future employment;
  • The individual is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The individual has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the alien’s application for a visa, admission, or adjustment of status;
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to support himself or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance; or
  • The individual has previously been found inadmissible or deportable based on public charge.

Alternately, factors that would weigh strongly against a finding that a foreign national is likely to become a public charge include:

  • The individual has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size; or
  • The individual is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

This proposed rule could have wide-reaching effects on legal immigration to the United States. The rule proposes not only to define “public charge” and the factors to be considered in making current and prospective public charge determinations, but also to add requirements for “public charge bonds” for certain applicants who are more likely to become a public charge. It is important for interested parties to comment on this proposed rule by the Dec. 10, 2018 deadline.

 

©2018 Greenberg Traurig, LLP. All rights reserved.
This post was written by Anita E. J. Ninan of Greenberg Traurig, LLP.

Employment-Based Petitions Exempt (at Least for Now) Under New NTA Policy

Beginning October 1, 2018, U.S. Citizenship and Immigration Service (USCIS) will begin a staggered rollout of a new notice to appear (NTA) policy. The first phase of the rollout does not include employment-based petitions.

The NTA policy authorizes immigration officers to issue NTAs and thus initiate the first step in removal (deportation) proceedings for those deemed to be removable from the United States after the denial of an immigration benefit. USCIS deployed the NTA policy in July 2018 but then later put it on hold while it developed additional guidance for the policy’s application.

In a recent announcement and during a September 27, 2018, stakeholder teleconference, USCIS offered additional details about the policy’s implementation and highlighted the following information:

  • The initial focus is on applications (as opposed to petitions) and the policy affects adjustments of status (Form I-485), applications for naturalization (Form N-400), and applications to extend or change nonimmigrant status (Form I-539), among others.
  • Employment-based petitions (including those based on Forms I-129 and I-140) are not included in the initial rollout, nor are humanitarian applications and petitions.
  • Generally speaking, USCIS will not immediately issue an NTA upon the denial of an immigration benefit. It will wait for the expiration of the motion or appeal period before issuing an NTA—though it is worth noting that USCIS reserves the right to issue an NTA at any point during the adjudication period, where appropriate.
  • The NTA policy does not affect motions to reconsider or reopen, or appeals. If USCIS ultimately approves an application after an NTA has been issued, it will coordinate with U.S. Immigration and Customs Enforcement (ICE) to make sure that ICE is aware of the favorable outcome. USCIS cannot cancel or withdraw an NTA that it has issued.
  • The NTA policy does not include initial requests for deferred action for arrivals (DACA), renewals, or requests for DACA-related benefits.
  • USCIS may, in its discretion, issue an NTA at the request of a removable foreign national so that he or she may seek lawful status or other relief during removal proceedings.
  • As USCIS begins implementing the NTA policy, it will create a public-facing web page that will provide additional guidance on the policy and examples of scenarios that may trigger the issuance of NTAs.

USCIS has not provided a timeline for any additional implementation measures.

 

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
Read more on Immigration on the National Law Review’s Immigration Type of law page.