Update on Public Charge

December 19, 2020 § Leave a comment

What is Public Charge?
Public charge is a ground of inadmissibility and is currently defined as “an alien who has received one or more public benefits, as defined in the rule, for more than 12 months within any 36-month period.” A ground of inadmissibility is a reason a person is denied a visa, permanent resident card, or admission into the United States. Immigration officers often consider whether an immigrant will become dependent upon government assistance in the future, thus making them a “public charge.” The public charge test does not apply to several classes of immigrants such as U visa holders, T visa holders, asylees, and refugees. The public charge test mainly impacts those seeking permanent resident status through family-sponsored petitions.


Why is Public Charge Controversial?
The public charge rule has sparked much controversy because it makes the green card process much harder for low-income immigrants. The public charge rule, implemented by the Trump Administration, was supposed to ensure that green cards only go to “self-sufficient” and economically independent immigrants. As a result of the rule, many immigrants have opted out of government programs and resources they so desperately need⁠—such as food stamps, SNAP, and even medical treatment during the COVID-19 pandemic for fear that they might trigger public charge.


Timeline
The controversial public charge rule has undergone a complicated litigation process as it has been struck down and reimplemented multiple times throughout the past two years. Here is a summarized timeline:

  • August 14, 2019: The Department of Homeland Security (DHS) published the final public charge rule, effective 10/15/2019.
  • October 11, 2019: The Department of State (DOS) published the interim final public charge rule, effective 10/15/2019.
  • October 11-14, 2019: Multiple federal courts issued preliminary injunctions of the August DHS final rule, thus prohibiting the rule from going into effect.
  • January 27, 2020: The Supreme Court lifted the last of the remaining injunctions. DHS said the rule would take place everywhere except Illinois, effective 02/24/2020.
  • February 24, 2020: DOS and DHS final public charge rules went into effect nationwide.
  • July 29, 2020: The DHS rule was enjoined nationwide due to the declared national emergency related to the COVID-19 pandemic. The DOS rule was enjoined nationwide indefinitely.
  • August 12, 2020: The Second Circuit limited the DHS nationwide injunction to New York, Connecticut, and Vermont. Thus, the public charge rule could take effect in all but the three aforementioned states.
  • September 11, 2020: The Second Circuit granted the government’s motion to lift the DHS nationwide injunction. Thus, the public charge rule could take effect nationwide.
  • December 2, 2020: The Ninth Circuit enjoined the DHS final rule in various regions. As of now, the public charge rule cannot go into effect in California, Colorado, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Virginia, Washington D.C., and Washington State. The public charge rule remains in effect in all other states.


Conclusion
The outcome of the public charge rule remains uncertain due to ongoing litigation. As of now, the public charge rule cannot be implemented in 18 states and the District of Columbia. Furthermore, DOS cannot implement the public charge rule in any cases decided at embassies or consulates. President-elect Joseph Biden, who takes office in January, has expressed his desire for the public charge rule to be reversed; however, the rule has to make its way through the extensive rule-making process.


Noncitizens residing in the United States deserve the care they need during the current public health crisis. Fortunately, USCIS has announced that testing and treatment for COVID-19, including the newly approved vaccine, will not trigger public charge. Furthermore, USCIS has announced it will consider other factors related to the pandemic, such as job and income loss. However, even after the COVID-19 pandemic subsides, we must continue to ensure that all immigrants have access to adequate healthcare and the necessary economic tools to build a more prosperous life in the United States.

Latest Developments on Public Charge

September 20, 2020 § Leave a comment

On July 29, 2020, the U.S. District Court for the Southern District of New York barred the government from enforcing the USCIS Final Rule on Inadmissibility on Public Charge Grounds during the COVID-19 pandemic. The district court issued this injunction in favor of the plaintiffs due to the harsh components of the public charge rule which have prevented many immigrants from receiving proper medical care during the pandemic. Many immigrants seeking permanent resident status have avoided seeking proper medical care and have not utilized government relief during the pandemic due to the fear of triggering the inadmissibility ground of public charge.

However, the 2nd Circuit Court of Appeals then limited the scope of the district court’s national injunction to only the jurisdiction of the 2nd Circuit. Therefore, the public charge rule was only barred in the states of Vermont, Connecticut, and New York.

Most recently, on September 11, 2020, the Second Circuit Court of Appeals stayed the original district court’s nationwide injunction on the DHS public charge rule. This means that USCIS is now free to require the Form I-944, Declaration of Self-Sufficiency, in all jurisdictions once again. However, uncertainties have come to light as USCIS has still not updated its web page related to the public charge injunction. Though USCIS has not added the Form I-944 back to its forms page, green card applicants should continue to fill out the pre-injunction I-944 Form until further notice. Applicants who use the Adjustment of Status process to apply for permanent residence from within the United States will be at risk should they submit Form I-485 packets without Form I-944. For those who are applying from outside the United States using consular processing, the Department of State has announced that in light of the pending litigation, applicants who may appear to be a public charge will be refused a visa under administrative processing (instead of a straight denial) to allow additional time for further assessment pending litigation.

As of now, USCIS has not yet updated its website with instructions on how impacted applicants should proceed to comply with the Public Charge Final Rule, nor how it will handle applications that were filed without public charge documentation while the injunction was in effect.

For a full background on the inadmissibility ground of public charge, refer to earlier immigration articles and also the American Immigration Lawyers’ Association website for litigation updates.

DACA Filings as per USCIS

September 6, 2020 § Leave a comment

On July 28, 2020, Acting Secretary of Homeland Secretary Chad Wolf issued a memorandum regarding the Deferred Action for Childhood Arrivals (DACA) policy. United States Citizenship and Immigration Services (USCIS) has since provided guidance on how it will implement Secretary Wolf’s memorandum. 

Despite the recent ruling in which the Supreme Court of the United States prohibited the Trump administration from dismantling the DACA program, USCIS stated that it will reject all DACA requests from aliens who have never previously received DACA and will return all fees. Should USCIS begin accepting new DACA requests in the future, rejected aliens will be able to reapply to DACA.

Aliens who have successfully received DACA status in the past may continue submitting DACA requests. For approved requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year instead of the previous two year authorization. The agency will not rescind any currently valid two-year grants of DACA or associated Employment Authorization Documents (EADs).

USCIS also recommends that DACA recipients file their renewal requests between 150 and 120 days before their DACA expires. The agency warns applicants not to submit renewal requests earlier than 150 days prior to expiration; requests submitted earlier than the recommended timeline will likely be rejected.

USCIS will continue to grant advance parole for travel outside the United States; however, the agency will only do so for cases of urgent humanitarian reasons or significant public benefit. The determination whether to grant advance parole to an alien is not guaranteed and is entirely dependent upon the discretion of USCIS.

Lastly, USCIS reminds DACA recipients that travelling outside the United States on or after August 15, 2012, without first receiving advance parole, will automatically terminate deferred action under DACA.

Official USCIS Announcement: https://www.uscis.gov/news/alerts/uscis-implements-dhs-guidance-on-daca

Presidential Proclamation Suspending H-1B and Other Visas That Allow Foreigners to Work in the U.S.

July 14, 2020 § Leave a comment

Summary

On June 22, 2020, President Trump signed an executive order barring the entry of immigrant workers on a slate of employment-based visas until at least December 31, 2020. President Trump issued this order in response to the COVID-19 pandemic—claiming that foreign workers pose a ‘threat’ to the current, volatile job market.

Which Visas are Suspended?

H-1B or H-2B visas, J visas (to the extent the Noncitizen is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program), and L visas are all suspended beginning June 24, 2020, until at least December 31, 2020. Furthermore, entry is suspended for any Noncitizen accompanying or following to join a Noncitizen on any of the aforementioned visas.

Whose Entry is Suspended?

-Noncitizens who are outside the United States on or after June 24, 2020;
-Noncitizens who do not have a nonimmigrant visa that is valid on or after June 24, 2020;
-Noncitizens who do not have an official travel document other than a visa—such as a transportation letter, an appropriate boarding foil, or an advance parole document—that is valid on or after June 24, 2020, or any date thereafter.

Who is Exempt?

The suspension does not apply to LPRs, any Noncitizen who is the spouse or child of a U.S. citizen, Noncitizens seeking to provide temporary labor essential to the U.S. food supply chain, and any Noncitizen whose entry would be in the national interest (as determined by DHS and Secretary of State).

SCOTUS Decision on DACA

June 30, 2020 § Leave a comment

On June 18th, 2020, the Supreme Court of the United States issued a stunning rebuke to the Trump Administration’s efforts to terminate the program known as the Deferred Action for Childhood Arrivals (DACA). The Supreme Court cited the Trump Administration’s efforts to terminate the program as “arbitrary and capricious” under the Administrative Procedures Act (APA). In other words, the Court ruled that the administration did not adequately explain its decision to end DACA and that its reasoning was faulty.

While this ruling is a significant victory for immigrants brought to the United States as young children, it is important to note that this decision is more nuanced and complicated than one might expect. For example, the Court did not necessarily rule in favor of DACA recipients. In fact, it never decided on the issue of whether the DACA program is legal. The Court merely ruled against the Trump Administration on procedural grounds. Therefore, this ruling is only a temporary win for DACA recipients. The president could still end the program in the future, but he would have to articulate valid reasons for doing so. But for now, the Department of Homeland Security must continue processing DACA applications.

What does this ruling mean for the immigrant community? This ruling means that current DACA recipients will continue to be protected from deportation and remain eligible for benefits under the DACA program like work authorization. Eligible recipients may continue to apply to renew their DACA for two more years. Individuals who never had DACA status can apply at this time as well. All eligible individuals should consult with a legal service provider to apply for the first time, renew applications, and explore options beyond DACA. To find a trusted legal service provider, please visit this link.

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