Visa Lawyer Blog

Articles Posted in Immigration Compliance

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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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USCIS International Field Offices

On August 9, 2019, USCIS announced its plans to maintain seven international field offices open in Beijing, Guangzhou, Nairobi, New Delhi, Guatemala City, Mexico City, and San Salvador.

As previously reported, all other USCIS international field offices will close between now and August 2020.

Functions performed at closing international offices will be handled domestically or by USCIS domestic staff on temporary assignments abroad. In addition, the Department of State (DOS) will assume responsibility for certain in-person services that USCIS currently provides at international field offices.

In addition to issuing visas to foreign nationals who are abroad, DOS already performs many of these service functions where USCIS does not have an office.

Targeted Immigration Raids

As our readers may be aware, U.S. Immigration and Customs Enforcement (ICE) has been conducting targeted immigration raids (Enforcement and Removal Operations) to remove undocumented immigrants from the United States.

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Yesterday, Federal Judge Edward Chen, of the United States District Court for the Northern District of California, issued a preliminary injunction temporarily stopping the United States government from rescinding the temporary protected status designation for immigrants from Sudan, El Salvador, Haiti, and Nicaragua.

By court order, the government must maintain the TPS designation for the above-mentioned countries, and continue to allow beneficiaries of these countries, to apply for employment authorization, while a lawsuit challenging the rescission of TPS for these countries moves through the court system.

Before the preliminary injunction the TPS designations would officially terminate as follows:

  • Sudan, TPS Designation was to terminate on November 2, 2018
  • Nicaragua, TPS Designation was to terminate on January 5, 2019
  • Haiti, TPS Designation was to terminate on July 22, 2019
  • El Salvador, TPS Designation was to terminate on September 9, 2019

The preliminary injunction comes on the heels of a class-action lawsuit brought by immigrants from these countries over the rescission of the TPS designation for Sudan, El Salvador, Haiti, and Nicaragua. The lead plaintiff named in the lawsuit Ramos v. Nielsen, is Crista Ramos, a 14-year old United States Citizen whose mother is a TPS holder from El Salvador. Ramos, along with other Plaintiffs in this lawsuit allege that the government rescinded TPS protections for the above-mentioned countries, based on a predetermined political agenda in violation of the law.

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On Saturday, September 22, 2018, the Department of Homeland Security announced a new proposed rule that may prevent non-citizens reliant, or likely to become reliant on public benefits, from gaining admission to the United States.  The new proposal entitled, “Inadmissibility on Public Charge Grounds,” has been signed by the Secretary of Homeland Security, and the proposed rule is expected to be published in the federal register in the coming weeks, according to a DHS press release.

APA Procedure

Once the proposed rule has been published in the federal register, the government must allow the public to comment on the proposed rule for a 60-day period. Once that period is over, the government will have the opportunity to review comments and make changes if necessary to the proposed rule. Thereafter, the government will publish a final rule which will become law 60 days after the date of publication.

Who is a Public Charge?

Under the Immigration and Nationality Act, a public charge is defined as an “alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Such aliens are not admissible to the United States on public charge grounds.

Applicants seeking admission to the United States should be aware that, “an alien who is incapable of earning a livelihood, who does not have sufficient funds in the United States for support, and who has no person in the United States willing and able to assure the alien will not need public support, generally is inadmissible as likely to become a public charge.”

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I-751 Change to Filing Location

Today, Monday September 10, 2018, the United States Citizenship and Immigration Services announced a change to the filing location for Form I-751 Removal of Conditions. The agency is now directing petitioners to send Form I-751 to a USCIS Lockbox facility instead of directly to the California and Vermont service centers. California, Nebraska, Vermont, and Texas will distribute the load of removal of conditions applications and adjudicate these petitions accordingly. When filing at a Lockbox facility, the petitioner may pay the filing fee with a credit card using Form G-1450.

TPS Somalia

USCIS has automatically extended the validity of Employment Authorization Documents (EADs) issued under the TPS designation of Somalia with an original expiration date of Sept. 17, 2018, for 180 days, through March 16, 2019.

Somalian nationals whose EADs expired on March 17, 2017, and who have applied for a new EAD during the last re-registration period, but have not yet received their new EAD card, are covered by the automatic extension.

If your EAD is covered by this automatic extension, you may continue to use your existing EAD through March 16, 2019, as evidence that you are authorized to work.

To prove that you are authorized to continue working legally, you may show the following documentation to your employer:

  • Your TPS-related EAD with a Sept. 17, 2018 expiration date; or
  • Your TPS-related EAD with a March 17, 2017 expiration date and your EAD application receipt (Form I-797C, Notice of Action) that notes your application was received on or after January 17, 2017

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Earlier this year, the United States Citizenship and Immigration Services (USCIS) suddenly changed the regulations governing the Optional Practical Training Program (OPT). According to the USCIS website, a U.S. employer who has hired an international student under the STEM OPT program may not assign, or delegate training responsibilities to a non-employer third party such as a consulting company. This policy change has proven controversial since its sudden appearance on the USCIS website during the month of April. The policy greatly restricts the employment of international students and exposes “noncompliant” students from being found inadmissible to the United States for a 5-year period or more and makes such students subject to deportation.

Per the USCIS website:

“…a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). See 8 C.F.R. 214.2.(f)(10)(ii)(C)(7)(ii) and 2016 STEM OPT Final Rule (pp. 13042, 13079, 13090, 13091, 13092, 13016).”

A lawsuit filed in the U.S. District Court for the Northern District of Texas seeks to challenge this new provision on the ground that USCIS unlawfully began implementing this new policy change, in contravention of federal law.

According to the lawsuit, ITServe Alliance v. Nielsen, USCIS circumvented federal procedural rules which require public notice and the opportunity for public comment, before such a federal policy is put in place. The lawsuit alleges that since the sudden appearance of these additional terms and conditions of employment, USCIS has unlawfully issued hundreds of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs), without first following the formal rulemaking process mandated under the Administrative Procedure Act (APA).

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The United States Citizenship and Immigration Services (USCIS) has released a new policy memorandum that will have wide ranging implications for immigrants. Beginning September 11, 2018, USCIS will use their discretion to deny an application, petition, or request filed with USCIS without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if insufficient evidence is sent with the initial filing of the application or if the evidence provided does not establish the applicant’s eligibility for the benefit requested.

The new policy memorandum “Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)” supersedes the 2013 policy memorandum titled “Requests for Evidence and Notices of Intent to Deny” which previously governed an officer’s discretion to deny an application, petition, or request without first issuing a request for evidence. Previously, the 2013 memo required requests for evidence to be issued where the initial evidence was unsatisfactory or did not establish the applicant’s eligibility for the benefit requested.

As of September 11, 2018, USCIS now has the power to deny petitions lacking initial evidence without sending a Request for Evidence or Notice of Intent to Deny to cure the defect. This is bad news for applicants of immigrant and non-immigrant visa types, because applicants who have not provided sufficient evidence to USCIS to establish that they are eligible for the benefit requested can be denied without having the opportunity to cure the defect.

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The latest string of immigration raids have come very close to home. Last week, federal agents from Immigration and Customs Enforcement (ICE) took part in a five-day immigration sweep throughout San Diego County with the goal of apprehending and removing criminal immigrants at large.

During the sweep 53 undocumented immigrants were arrested including immigrants who were not criminals but had final deportation orders issued by the Immigration Court. 10 of the 53 arrested had been previously deported. These individuals were said to have re-entered the United States after previous deportations or had been found in violation of federal immigration laws. According to USCIS, those detained were of Mexican and Guatemalan nationality and were picked up in Santee, Vista, Encinitas, Chula Vista, Escondido, Oceanside, San Diego, and Imperial Beach.

Gregory Archambeault, the field office director of the San Diego Office for Enforcement and Removal Operations defended the actions adding that these types of operations, “reflect the vital work ERO officers do every day to uphold public safety and protect the integrity of our immigration laws and border controls.”

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According to an internal memorandum, Immigration and Customs Enforcement (ICE) has plans to conduct a targeted enforcement operation at a national food service chain within the coming weeks. An ICE official spoke with The Daily Beast, on condition of anonymity, telling the news organization that ICE plans to conduct this operation to discourage American employers from exploiting undocumented workers by paying them low wages. Officials told the news organization that the operation will be targeting multiple locations across the United States, and that employers will likely be charged with federal offenses including harboring illegal aliens.

This move is the Trump administration’s latest attempt to deter illegal immigration through worksite enforcement actions, described by the administration as targeted operations to prosecute individuals who employ undocumented immigrants. If all goes to plan, the operation will be primarily focused on prosecuting owners of franchises who illegally employ undocumented immigrants. Sources with knowledge of the investigation have said that a preliminary investigation has already been conducted and that targets have already been chosen.

The food industry has and continues to be an industry that employs thousands of undocumented workers due to the unskilled nature of the work, and the fact that employers are able to cut costs by paying undocumented workers very low salaries. According to a 2008 Pew report, at least 10 percent of the hospitality industry is supported by the labor of undocumented immigrants. Last year, Eater reported that over 20% of all cooks working in restaurant kitchens could be undocumented. Noelle Stewart, communications manager for Define American, said that undocumented immigrants make up a crucial part of our economy in that, “they cultivate our produce; they cook our food,” she says, “the food industry wouldn’t be possible in the way it is without them.”

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On April 18, 2017, the President signed the controversial executive order, Hire American, Buy American, “in order to promote the proper functioning of the H-1B visa program.”

The President’s executive order directs the heads of various departments to suggest reforms to the H-1B visa worker program, a lottery based work visa program reserved only for professionals working in specialty occupations. The EO specifically aims to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Since the President signed the executive order, no reforms or regulations have been passed by Congress to enforce the provisions of the order on the H-1B visa worker program, however enforcement of the provisions of the executive order are beginning to be seen through the adjudicatory measures of USCIS immigration officials.

As of late, the United States Citizenship and Immigration Services (USCIS) has become a lot tougher in adjudicating H-1B visa applications. This means that securing an H-1B work visa will become a lot more difficult going forward. For the last few months, USCIS has been aggressively issuing more numerous and more stringent “requests for evidence” in comparison to previous years. This phenomenon has manifested itself generally in response to work visa applications for highly skilled workers, and is not just reserved to H-1B work visa applications.

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