Visa Lawyer Blog

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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

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

Below are the highlights of those trends and projections for August 2019:

EB-1 Worldwide: As demand has increased in recent weeks, this category is expected to retrogress in early August, and return back to April 22, 2018 in October of this year.

EB-1 India: This category is not expected to advance prior to October 2019. During October 2019, this category is expected to return to a Final Action Date of February 22, 2017.

EB-1 China: This category is not expected to advance prior to October 2019.  

EB-2 Worldwide: Due to increased demand in recent weeks, this category is no longer expected to remain current through September 2019. A retrogression is expected in this category in early August 2019. EB-2 Worldwide is expected to become current again in October 2019.

EB-2 India: This category is expected to continue to advance slowly, by a few days or a week.

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Foreign nationals applying for a non-immigrant or immigrant visa at a U.S. Consulate or Embassy abroad are now required to disclose information relating to their social media presence on their online nonimmigrant and immigrant visa applications known as the DS-160 and DS-260 respectively.

These changes were introduced early last week by the Department of State. Applicants must now provide information about each social media platform they have used within the last five years, including the name of the platform, and the username or handle used on that platform.

Applicants must also provide their current email and phone number, as well as email addresses and phone numbers they have had during the last five years.

Consular officials can use information found on social media during the visa adjudication process to determine whether the individual is eligible for the visa they are requesting. If officials find any information on social media that would lead them to believe the applicant is misrepresenting their true intentions or attempting to gain entry through means of fraud or deceit, the applicant’s visa application may be denied.

In the past, the Department of State only required social media information of individuals that were flagged for further inspection and individuals posing security risks to the United States. This information was provided in a supplemental questionnaire known as the DS-5535. Now, these questions are asked directly on the DS-160/DS-260 applications.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

Below are the highlights of those trends and projections as of January 2019:

Employment-Based Immigration:

EB-1: DOS predicts that demand in the EB-1 category within the coming months will prevent the EB-1 Worldwide category from becoming current.

EB-1 Worldwide is expected to advance gradually to a maximum period of two months each month beginning in March through the month of May.

Visa numbers for EB-1 China and EB-1 India will be used up very quickly. EB-1 China and EB-1 India are expected to advance gradually anywhere from zero to one month each month beginning in March through the month of May.

EB-2 Worldwide: is projected to remain current for the foreseeable future. A Final Action Date will likely not be imposed for the remainder of this fiscal year.

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Photo credit: Scott Kirkwood/NPCA

Today marks the fifth day of a partial government shutdown that began on Saturday. The government was forced into a shutdown after Democrats refused to concede $5 billion dollars to fund the President’s wall along the southwest border.

Since then, Democratic leaders in the House and Senate have not opened negotiations to appease the President. If a resolution is not reached before the end of December, it is highly unlikely that the President will receive the money demanded to fund the border wall. When the new House of Representatives convenes after the holidays, the Democrats will command a majority in the House of Representatives, making it more difficult for the President to obtain the necessary funding.

The government shutdown will affect various government entities including the Department of Homeland Security and Department of Labor.

Here’s how it will affect immigration:

EB-5 Immigrant Investor Regional Center Program:

Without congressional authorization to continue the EB-5 Regional Center Program beyond December 21, 2018, USCIS will not accept new Forms I-924, Application for Regional Center Designation Under the Immigrant Investor Program. Any Form I-924 applications that are pending as of December 21, 2018, will be placed on hold until further notice.

Per the USCIS Website:

“We will continue to receive regional center-affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status, after the close of business on Dec. 22, 2018. As of Dec. 22, 2018, we will put unadjudicated regional center-affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time.

All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date, will not be affected by the expiration of the program.”

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On Friday, March 30, 2018, the Department of State published a 60 day notice in the Federal Register entitled “Notice of Proposed Information Collection: Application for Immigrant Visa and Alien Registration,” proposing to require immigrant visa applicants to submit five years of social media history as part of the information requested on the DS-260 Immigrant Visa Electronic Application used by applicants to schedule Immigrant Visa interviews at U.S. Embassies and Consulates worldwide. The DS-260 is an Electronic Form that is completed by immigrant visa applicants and used by consular officials to determine whether the applicant is eligible for an immigrant visa.

Specifically, the Department wishes to, “add several additional questions for immigrant visa applicants. One question lists multiple social media platforms and requires the applicant to provide any identifies used by applicants for those platforms during the five years preceding the date of the application.”

Information provided by immigrant visa applications relating to their social media will be used to enhance “vetting” of applicants to verify their identity, ensure that they meet all visa eligibility requirements, and to prevent individuals from entering the country who pose a threat to the county’s national security, or have been associated with a terrorist organization.

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As previously reported, on October 8, 2017, the United States announced the suspension of all non-immigrant visa services across U.S. Embassies and Consulates in Turkey “until further notice,” following news that a U.S. embassy official was placed under arrest without explanation and without access to counsel. This included the suspension of the issuance of: B-2 visas for temporary tourism or medical reasons, B-1 visas for temporary business visitors, F-1 student visas, E-1 treaty trader visas, E-2 treaty trader visas, and other non-immigrant visa types.

Since October 8, 2017 until just recently, no new non-immigrant visa applications were being processed in Turkey until the U.S. government could receive assurances form the Turkish government that embassy staff officials would not be detained or placed under arrest without cause, or access to counsel.

On November 6, 2017, the Department of Homeland Security and the United States Embassy in Ankara, Turkey, announced that the United States has received sufficient assurances from the Government of Turkey that employees under the diplomatic mission are not under investigation, that local staff of U.S. embassies and consulates will not be detained or arrested in connection with their official duties, and finally that the U.S. government will be notified in advance if the Turkish government plans to arrest or detain any local staff at U.S. embassies in Turkey. The announcement however provides that the United States “continues to have serious concerns about the existing cases against arrested local employees” of the Mission in Turkey and of “. . . the cases against U.S. citizens who have been arrested under [a] state of emergency.”

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The newly appointed U.S. Secretary of State Rex Tillerson is quickly mobilizing government resources to increase scrutiny and implement tougher screening procedures for applicants who are applying for a U.S. visa or other immigration benefit at U.S. Consular posts and Embassies abroad. Reuters has reported that Secretary Tillerson has sent a series of internal cables (four in total) to consulates and embassies abroad instructing them of new measures to increase vetting of visa applicants (both immigrant and non-immigrant). These cables are as follows: (1) Cable 23338 entitled “Guidance to Visa-Issuing Posts” issued on March 10, 2017; (2) Cable 24324 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 15, 2017; (3) Cable 24800 entitled “Halt Implementation” of President Trump’s new travel ban due to a temporary restraining order by a federal court, issued on March 16, 2017; and finally (4) Cable 25814 entitled “Implementing Immediate Heightened Screening and Vetting of Visa Applications” issued March 17, 2017.

In these cables, Tillerson has directed U.S. consulates and embassies to specifically identify population risks that warrant “increased scrutiny” and to implement tougher screening procedures for this particular group of people. Applicants who fall into one of the identifiable population groups will be subjected to a higher-level security screening. The cable does not identify whether embassies will be coordinating to provide a uniform standard for identifying populations who pose a security risk. This is a serious cause for concern, since U.S. embassies will likely vary in how they assess which groups pose a security risk. In addition, as part of these measures, the Secretary has ordered a mandatory social media check for all applicants who have ever visited or been present in any territory that is controlled by the Islamic State. Previously, social media screening was not a part of the regular screening process for U.S. visa applicants, however this screening process has always been a discretionary measure.

In addition, the cables provided instructions for the implementation of President Trump’s newly revised executive order on immigration which sought to temporarily bar the admission of foreign nationals from Syria, Libya, Sudan, Somalia, Iran, and Yemen, as well as Syrian refugees, including mandatory enhanced visa screening procedures. Several of these cables were quickly retracted by the Secretary of State after a federal judge from the state of Hawaii issued a Temporary Restraining Order blocking Trump’s embattled executive order from proceeding as planned. The Trump administration had envisioned strict new guidelines for vetting U.S. visa applicants, and this vision was reflected in Tillerson’s cables.

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President Donald Trump is expected to hand down a controversial Executive Order on immigration within the coming days to protect the nation from terrorist attacks by foreign nationals. Although the Trump administration has not made a formal announcement regarding the proposed order yet, a leaked, unsigned copy of the President’s order has been making the rounds. We do not know whether the President has made any modifications to the order since its leak, and we do not know when exactly the order will be issued. One thing is clear, an executive order on immigration is imminent. It is rumored that the executive order will include a temporary ban on refugees, the suspension of issuance of visas for citizens of Syria and six other Middle Eastern and African countries, which are rumored to include Iraq, Iran, Libya, Somalia, Sudan and Yemen, collectively referred to as “countries of particular concern,” as well as the end of Syrian refugee processing, and the visa interview waiver program.

The passage of such an executive order although extremely controversial and unpopular, would be within the President’s executive power, if his administration determines that limiting refugee admissions temporarily and restricting the issuance of visas to persons from specific countries is of significant public interest to the United States to combat the war on terror. The administration would need to balance our country’s need to secure its borders against terrorism with the need to resolve the global humanitarian crisis we face today. Donald Trump has already passed a series of executive orders on border security and immigration enforcement authorizing the construction of a U.S.-Mexico border wall, withholding federal grant money for sanctuary cities, hiring 5,000 Border Patrol agents, reinstating local and state immigration enforcement partnerships, and ending the “catch-and-release” policy for undocumented immigrants.

The leaked copy of the executive order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” gives two policy reasons for enacting the executive order. First, the purpose of the order is to protect American citizens from foreign nationals who intend to enter the United States to commit acts of terrorism. Second, the order serves to prevent the admission of foreign nationals who intend to enter the United States to “exploit” the country’s immigration laws for malevolent purposes. The order highlights that following the September 11 attack on the World Trade Center, hundreds of foreign nationals have successfully entered the United States on an asylum, visitor, student, or employment visa, and have been subsequently convicted or implicated in terrorism related crimes. The order goes on to blame the State Department’s consular officials for their failure to scrutinize the visa applications of the foreign nationals who went on to commit the September 11 attacks, which resulted in the deaths of thousands of Americans.

The main provisions of the leaked order “Protecting the Nation from Terrorist Attacks by Foreign Nationals” are as follows:

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On December 12, 2016, the Department of State published the Annual Numerical Limits for both family and employment-based visa preference categories for Fiscal Year 2017.

Family preference and employment immigrant categories are subject to numerical limitations and are divided by preference systems on the Visa Bulletin and become current based on the immigrant’s priority date. The Visa Bulletin estimates immigrant visa availability for prospective immigrants. Applicants who fall under family preference or employment categories must wait in line until an immigrant visa becomes available to them, for applicants to proceed with their immigrant visa application. Once the immigrant’s priority date becomes current per the Visa Bulletin, the applicant can proceed with their immigrant visa application. A priority date is generally the date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS. The Visa Bulletin exists due to numerical immigrant visa limitations for family-sponsored and employment-based preference categories established by the Immigration and Nationality Act (INA). Family-sponsored preference categories are limited to a minimum of 226,000 visas per year, while employment-based preference categories are limited to a minimum of 140,000 visas per year. The Visa Bulletin is a useful tool for aliens to determine when a visa will become available to them so that they may apply for permanent residence.

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