Tills Visa Law

Stephen K. Tills, Attorney at LAW

The New “Public Charge” Rules

The new rules are published and being implemented on or about October 14, 2019.

KEY TAKEAWAYS

1,  Any Immigrant Visa cases pending with U.S. DOS abroad or with U.S. DHS prior to that date are not effected.

2,  The Alien applicant is required to submit a three year financial history, and include a record of public benefits received, both monetary, and non-monetary.

3,  DHS will only consider public benefits received directly by the alien for the alien’s own benefit, or where the alien is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another.

4,  DHS also will not attribute receipt of a public benefit by one or more members of the alien’s household to the alien unless the alien is also a listed beneficiary of the public benefit.

Ken Cuccinelli, the acting director of the U.S. Citizenship & Immigration Services, holds a news conference Monday, Aug. 12, after the Trump administration announced it would start denying green cards for immigrants if they use public assistance programs such as as food stamps and Medicaid. The new rule is set to take effect in mid-October. published by pbs.org

 

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New Labor Certification Process for H-2B workers

FOREIGN LABOR APPLICATION GATEWAY (FLAG)

H-2B workers are temporary, non-agricultural workers that enter the U.S. as visitors with work authorization.  These workers are often employed in seasonal jobs such as landscaping, roofing, as carnival workers.
On Tuesday, June 4, 2019, DOL’s Office of Foreign Labor Certification (OFLC) notified stakeholders that starting Monday, June 10, 2019, all prevailing wage determination requests (ETA Form 9141) must be filed through the new Foreign Labor Application Gateway (FLAG) system and that as of Sunday, June 9, 2019, at 11:59 pm (ET), the iCERT system will be deactivated for ETA Form 9141 filings.

FLAG is a cloud-based portal designed to replace OFLC’s current iCERT System and will serve as the new application filing and case management solution for all foreign labor certification programs, including H-2A, H-2B, LCA, CW-1, Prevailing Wage and PERM applications.

Three Countries, the Dominican Republic, Ethiopia and Philippines have been removed from the list of participating Countries due to their non-cooperation with the issuance  of travel documents for deportees.

Social Media “Vetting” for Visa applicants

SOCIAL MEDIA IDENTIFIERS

As of May 31, 2019 virtually all immigrant and non-immigrant visa applicants are now required to disclose social media identifiers from the last five years as part of the visa application process.

Visa applicants are now required to provide their username or handle for major social media sites, using a drop down menu in the online application.  They will have to recall all such media platforms for the past five years, including usernames, not an easy task.  In addition, they will be subjecting their personal networks to scrutiny.

When DHS checks the social media of someone trying to obtain permission to come to the United States or someone already at or near the border, it inevitably picks up information about people with whom they interact. For example, ICE agents searching a traveler’s smartphone at or near the border can download the entirety of her Facebook and Twitter accounts and go through them later.

In addition, CBP agents conducting social media checks for people applying for visa waivers (available to the citizens of 38 countries) can examine not only the applicant’s posts but those of the people who interacted with her on social media (even if uninvited), and may retain information so long as the agent believes it is “relevant” to the waiver decision. The program also allows agents to proactively identify an applicant’s contacts who might “pose a potential risk to the homeland.”

CIS closing Visa Processing sites abroad

Lee Francis Cissna

The director of United States Citizenship and Immigration Services, L. Francis Cissna, told senior staff members this week that the international division, which has operations in more than 20 countries, would close down by the end of the year, according to two people with knowledge of the meeting.

Agency officials said the move was intended to provide more staff resources to handle the lengthy backlog in asylum applications from tens of thousands of migrants crossing the southern border every month.

The overseas division provides logistical assistance to American citizens, lawful permanent residents and refugees seeking to bring family members to the United States; people who have been persecuted and wish to resettle in the United States; Americans who adopt children internationally; and members of the military and their families applying for citizenship.

That work will be transferred to the 5 U.S. CIS Regional Service Centers in the U.S.  which currently process applications from applicants filing domestically.

USCIS Electronic Reading Room

Supreme Court rules in favor of DHS mandatory detention policy

The Supreme Court ruled today in Nielson v. Preap that those foreign nationals subject to mandatory detention for committing crimes in the U.S. may be detained regardless of when they last left criminal detention.  Preap and a 2nd Petitioner had sued DHS because they were arrested and detained by U.S. ICE years after they had been released from criminal custody.  They argued that the statute, INA section 236(c), reads “when released” and requires ICE to make their arrest immediately after leaving criminal custody, or not subject them to detention at all.   Judge Alito wrote for the 5 member conservative majority.

Justice Alito with opinion in Nielsen v. Preap

Judge Breyer wrote a dissenting opinion finding that the majority interpretation of “when released” would significantly expand the Secretary’s authority to deny bail hearings.

“Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without the possibility of release”.

Justice Stephen Breyer


The New “Public Charge” Rules

The Trump administration has published proposed new rules to discourage Immigrants and visitors from becoming dependent on public benefits after their admission to the U.S..  The proposed rules would require disclosure of the applicant’s history of receipt of any monetary benefits, so DHS is proposing to consider all federal, state, local, and tribal cash assistance for income maintenance as part of the public benefits definition. Also taken into consideration would be non-monetary benefits such as Medicaid.  Currently, Immigrants must submit an “Affidavit of Support” from a sponsor that assures that the Immigrant will be financially sponsored to 125% of the HHS “poverty level” for a period of ten years.

Immigration Process

To enforce the policy, U.S. CIS has issued a new form,  Form I-944. This form would collect information based on factors such as age; health; family status; assets, resources, and financial status; and education and skills, so that USCIS could determine whether an applicant would be inadmissible to the United States based on public charge grounds. Evidence of receipt of public benefits within the 36 months immediately preceding the application would carry significant weight in determining whether the alien is likely to become a public charge. An additional requirement is that the applicant must bear the cost of obtaining a credit report and credit score from any one of the three major credit bureaus in the United States to be submitted with the application.  (Consumers may obtain a free credit report once a year from each of the three major consumer reporting agencies (i.e., credit bureaus) under the Fair Credit Reporting Act (FCRA).)

 

 

 

Appendix
Department of Homeland Security (DHS).
U.S. Citizenship and Immigration Services (USCIS) is the federal agency that oversees lawful immigration to the United States
The Fair Credit Reporting Act, 15 U.S.C. § 1681 (FCRA) is U.S. Federal Government legislation enacted to promote the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies.

Change to Asylum Policy aimed at Central American Asylum seekers

Attorney General Sessions announced today that U.S. asylum will no longer be available to persons fleeing gang violence and domestic abuse caused by private persecutors. The policy appears to be aimed squarely at those seeking asylum from Central America, mainly Guatemala, Honduras, El  Salvardore, and Nicaragua.  What do those countries have in common?  Their governments are unable to control drug-trafficking cartels and gangs like the ‘Mara”, and have a poor record of preventing domestic violence.   The U.S. is now denying asylum eligibility to those seeking protection on those grounds where the persecutor is a private actor.

asylum USA Immigration from Central AmericaMembers of a caravan of migrants from Central America and supporters gather on both sides of the border fence between Mexico and the U.S. as part of a demonstration, prior to preparations for an asylum request in the U.S., in Tijuana, Mexico, Sunday. | REUTERS

POLITICAL ASYLUM
The concept of asylum has traditionally been known as political asylum.  But under U.S. asylum law there are 5 separate grounds for asylum:  political, religious. nationality, race, and membership in a particular social group (PSG).  The asylum claimant must show that the persecution is caused by the government in their native country, or by a group that the government is unable to control.   The claim for protection from gangs and domestic violence is usually couched in terms of a PSG since it does not involve a political motive, nor fit within the other categories. However, these claims often involve private actors, especially claims involving domestic violence.

APPLICATION FOR ASYLUM
To make a claim for asylum,  the applicant must establish that a reasonable person in their position would have a well-founded fear of persecution if returned to their country.  The claims are presented to asylum officers and Immigration Judges and must establish that their claims fall within one of the 5 grounds.  Those fleeing from gangs and domestic abusers have sought protection by having “Membership in a particular social group”, since their fear involves persecution by private actors.      But, recently, the Attorney General certified to himself that female domestic violence survivors may not fall within this ground of asylum, and with this new decision,  Attorney General Sessions has now eliminated asylum protection for those seeking protection from gang violence as well.

Supreme Court voids deportation based on Aggravated Felony ground “Crime of Violence”, but effect on deportation proceedings may not be significant.

In Dimaya v. Sessions,  ( https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf)

The Supreme Court found that the category of aggravated felony “crime of violence” was too vague to be enforceable.  The Court found that deciding whether State criminal statutes qualified as a “crime of violence“,  and therefore an aggravated felony, was too difficult because of the vagueness of the term and resulted in inconsistent results.

The “Aggravated Felony” ground of deportation is the most punishing of all deportation grounds, and results in few if any avenues for available relief from deportation.  In most cases a conviction for a “crime of violence” results in a lengthy criminal jail sentence, followed by a DHS detainer, and then a period of mandatory detention for the alien, until the deportation proceedings are completed.  For “green card” holders, it usually results in automatic loss of that status and immediate deportation from the U.S..

Crime of Violence” is only one of many aggravated felony grounds of deportation, and encompasses a broad sweep of potential activities,  weapons, and mental states. It also includes only those crimes for which the alien received a sentence of at least one year of imprisonment.  Other aggravated felony grounds are more specifically tied to particular crimes such as weapons trafficking,  drug trafficking,  human trafficking,  murder, rape, and other individualized serious criminal convictions. Often serious criminal convictions qualify as more than one aggravated felony ground, such as certain weapon offenses.

This decision actually is a continuation of Federal Courts striking down ambiguous criminal definitions used as a basis for deportation.  The separate ground of “Crimes Involving Moral Turpitude” (CIMT) is undergoing Court scrutiny, though it is not an aggravated felony ground. (The Second Circuit Court of Appeals recently decided that New York Petit Larceny convictions could not categorically be considered CIMTs) It usually takes conviction of two or more CIMTs to cause an alien to be deportable.  In fact, with the “Crime of Violence” ground quashed by the Supreme Court, many of those same offenses will be charged as CIMTs if they don’t fit within another aggravated felony ground.

New Regulations to discourage Immigrants’ use of public benefits

MR. MONOPOLY

The Trump administration intends to implement new rules aimed at the use of public benefits by Immigrants and visitors to the U.S..  Historically, U.S. Immigration law has required that Immigrants and visitors show that they have private financial means for their support in the U.S..  Both must provide “Affidavit of  Support” forms prior to being admitted to the U.S..  In the case of visitors, they must provide form I-134, signed by the U.S. sponsor along with supporting documents to show the source of the funding.  For Immigrants, the sponsor must file form I-864, and show more extensive financial records.  The sponsor signing the I-864 pledges to support the intending immigrant to at least 125% of the poverty level for their household size for a ten-year period.

DECLARATION OF SELF-SUFFICIENCY
The new regulations require the filing of a form called “Declaration of Self-Sufficiency” (Form I-944) and requires additional information and documentation relating to public charge considerations.  This form will be used in conjunction with DHS proposed amendments to its regulations to interpret the minimum statutory factors for determining whether an alien is inadmissible as a public charge. For those in the U.S. seeking permanent resident status, their history of receipt of public benefits will be reviewed.  DHS will be providing a list of public benefits to be considered when making a public charge determination, including common tax credits.  The current rules provide that non-cash, supplemental and certain limited cash, special purpose benefits should not be considered for public charge purposes.

Visas for Dairy Farm workers

A House subcommittee recently passed a proposed bill that would allow Dairy Farms to hire foreign workers.  The current law for agricultural workers (H-2A) does not allow for year-round employment of workers, but only seasonal, so dairy farms have been unable to petition for workers in that category.

On 10/23/17, Representative Bob Goodlatte (R-VA) introduced the Agricultural Guestworker Act (H.R. 4092) which seeks to create a new temporary agricultural guestworker program by replacing the current H-2A program with an H-2C visa for temporary agricultural workers.
The new H-2C visa program would cover year-round agricultural and horticultural work, including dairies, aquaculture operations, raw food processors, and forestry-related activities, among others.

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