Public Charge Rule Expanded to Deny Green Card Faces Legal Challenges in U.S. Courts

On Wednesday, August 14, 2019, DHS published a final rule redefining the public charge ground for denying green card issuance. Lawsuits have already been filed in multiple jurisdictions, raising questions whether the rule will go into effect October 15, 2019.

The new public charge rule removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The final rule at 8 CFR 212.21(b) defines a public benefit as:

  1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
    1. Social Security Income (SSI), 42 U.S.C. 1381 et seq.;
    1. Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
    1. Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
  2. Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c;
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
  5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
  6. Public housing under section 9 of the U.S. Housing Act of 1937

A sufficient affidavit of support will NOT be outcome-determinative as to whether an individual is likely at any time in the future to become a public charge. Rather, to make that assessment, USCIS adjudicators will apply a complex totality of circumstances test that weighs the alien’s age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors.

USCIS notes in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits as defined by the rule.  One heavily weighted negative factor is an applicant’s receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment.

The public charge rule, which is vastly more restrictive than current policy, could result in significantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations. Moreover, the multi-factor test will leave substantial discretion to adjudicators and could produce inconsistent and unpredictable decision-making. Additionally, the rule will prove burdensome for the public and DHS alike. It requires that adjustment applicants subject to public charge determinations prepare and submit lengthy Forms I-944, Declaration of Self-Sufficiency, with their adjustment filings. USCIS’s review of hundreds of thousands of these new forms each year will further slow the agency’s already severely delayed case processing.

For more information on public charge, 

text | whatsapp | call 407-292-7730 or email gail@gaillaw.com

FREE phone & in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2019, Law Offices of Gail S. Seeram. All Rights Reserved.

Asylum claim at a previous country

The Trump Administration announced rules that migrants coming from Central America who have passed through other countries en route to the U.S. border will no longer be able to make a claim for asylum beginning July 16. Immigration attorneys and experts say the rule is a violation of domestic and international asylum laws, and federal judge has sided with the administration in one of two cases brought against the new rule.

On July 15, the Trump Administration announced the change to asylum rules making it so that migrants had to have made an asylum claim at a previous country while en route to the U.S. before arriving to the southern border — anyone who hasn’t becomes ineligible for asylum in the U.S.

On July 24, a federal judge in San Francisco temporarily blocked the new Trump administration policy that sought to bar Central Americans and other migrants from requesting asylum at the southern border, saying the federal government’s frustrations with rising border crossings did not justify “shortcutting the law.”

U.S. District Judge Jon S. Tigar, who halted another version of the Trump administration’s asylum ban last year, said a “mountain” of evidence showed that migrants could not safely seek asylum in Mexico. He said the rule likely violated federal law in part by categorically denying asylum to almost anyone crossing the border. U.S. law generally allows anyone who sets foot on U.S. soil to apply for asylum.

For more information on asylum claim at a previous country, 

text | whatsapp | call 407-292-7730 or email gail@gaillaw.com

FREE phone & in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2019, Law Offices of Gail S. Seeram. All Rights Reserved.

Expedited Removal – Not see Judge

July 22, 2019 – The Department of Homeland Security (DHS) announced on that it would vastly expand “expedited removal,” a provision of the law that permits the agency to rapidly deport certain individuals without an opportunity to see an immigration judge. Under the expansion, DHS can rapidly deport undocumented immigrants in the United States who crossed the border without a visa and have not resided in the United States for at least two years. This amounts to a nationwide “send them back” immigration policy.

Individuals who are subject to expedited removal don’t get a chance to go in front of an immigration judge to argue against their deportation. Instead, the decision about whether some can and should be deported under expedited removal is made by a single immigration enforcement officer, with the only review coming from the officer’s supervisor. Courts are generally prohibited from reviewing a deportation order done through expedited removal (except in very narrow circumstances) and only asylum seekers have a path to avoid expedited removal.

Previously, expedited removal applied only to those encountered within 100 miles of the border and within 14 days of entering the United States. Customs and Border Protection officers were the ones making decisions about whether people qualified for expedited removal. However, under the expansion, Immigration and Customs Enforcement (ICE) also would be able to carry out expedited removal determinations inside the United States.

As a result of this new expansion, ICE officers also would act as both judge and jury. A single officer and supervisor could determine whether individuals with significant ties to the United States should go through expedited removal and be deported without judicial review.

The new policy goes into effect on Tuesday, July 23. An estimated 300,000 people in the United States could now be at risk of arrest and deportation without the opportunity to see a judge. That doesn’t even consider people who may be erroneously placed in expedited removal proceedings. Individuals will have the burden of proving to ICE they have resided in the United States for two or more years.

Because expedited removal generally does not involve the safeguard of judicial review, legal immigrants and even U.S. citizens will be at much greater risk of wrongful deportation. Because ICE is casting its net wider, it’s more likely than ever that citizens will face arrests. And with expanded expedited removal taking away judicial review in some cases, the odds that a mistaken arrest could lead to a wrongful deportation will be even higher.

Congress created expedited removal in 1996 as a way to speed up the deportation process. Although Congress permitted the government to apply expedited removal to anyone in the United States within two years of entry, it did not require that. Expedited removal was first applied to individuals who came through ports of entry, then in 2002 it was expanded to people intercepted at sea or who arrive by boat. In 2004, the Bush administration expanded expedited removal to its current extent.

Under the current system, those who arrive at the border are generally subject to expedited removal. This permits the government to deport them without due process. But if a person expresses a fear of returning to their home country or asks for asylum, they are then referred to an asylum officer. If the asylum officer determines that a person has a credible fear of persecution, they are taken out of the expedited removal process and allowed to apply for asylum in immigration court. If the officer determines otherwise, the person is subject to rapid deportation.

Now, individuals throughout the United States could be put through this process. No one should get ripped from their home without the chance to go in front of a judge and argue why they should be allowed to stay.

The American Immigration Council and the ACLU already announced that they will sue to stop the expansion.

For more information on expedited removal, 

text | whatsapp | call 407-292-7730 or email gail@gaillaw.com

FREE phone & in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2019, Law Offices of Gail S. Seeram. All Rights Reserved.

NEW Citizenship Test Coming

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) is revising the current naturalization test with improvements to ensure it continues to serve as an accurate measure of a naturalization applicant’s civics knowledge and that it reflects best practices in adult education assessments. The goal is to create a meaningful, uniform, and efficient test that will assess applicants’ knowledge and understanding of U.S. history, government and values. 

This spring, the former USCIS director signed the Revision of the Naturalization Civics Test Memorandum announcing the new citizenship test coming in 2021.

“Granting U. S. citizenship is the highest honor our nation bestows,” said USCIS Acting Director Ken Cuccinelli. “Updating, maintaining, and improving a test that is current and relevant is our responsibility as an agency in order to help potential new citizens fully understand the meaning of U.S. citizenship and the values that unite all Americans.” 

In December 2018, USCIS formed a naturalization test revision working group with members from across the agency. The working group has been reviewing and updating the naturalization test questions. The working group will also assess potential changes to the speaking portion of the test. USCIS is soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent. After careful analysis of the pilot, and thorough officer training, USCIS will set an implementation date in December 2020 or early 2021.  

In Fiscal Year 2018, USCIS naturalized nearly 757,000 people, a five-year high in new oaths of citizenship. The naturalization test revision is a key part of preparing legal immigrants to fully exercise their rights and meet their responsibilities. 

For more information on new citizenship test, 

text | whatsapp | call 407-292-7730 or email gail@gaillaw.com

FREE phone & in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2019, Law Offices of Gail S. Seeram. All Rights Reserved.

Immigration Medical Exam Valid for Two Years

USCIS is revising policy guidance for the validity period of Form I-693, Report of Medical Examination and Vaccination Record.

Effective Nov. 1, 2018, applicants required to submit a Form I-693, immigration medical exam, that is signed by a civil surgeon would remain valid for a two-year period following the date the civil surgeon signed it. Also, the Form I-693 is required to be submitted within 60 days of the civil surgeon completion of the immigration medical exam. The Form I-693 As such, USCIS is retaining the current maximum two-year validity period of Form I-693, but calculating it in a different manner to both enhance operational efficiencies and reduce the number of requests to applicants for an updated Form I-693.

USCIS officers use Form I-693, Immigration Medical Exam, to determine whether an applicant for an immigration benefit in the United States is inadmissible under the health-related grounds of inadmissibility. By specifying that the Form I-693 must be signed no more than 60 days before the applicant files the underlying application for which Form I-693 is required, the validity of the form is more closely tied to the timing of the underlying application.

Additionally, requiring submission of a Form I-693, Immigration Medical Exam, that was signed no more than 60 days before the date the underlying application was filed may, in some cases, maximize the period of time Form I-693 will be valid while the underlying application is under USCIS review. Officers will still have the discretion, as they have always had, to request a new Form I-693 if they have reason to believe an applicant may be inadmissible on the health-related grounds. Delays in adjudicating the underlying application will also be reduced if fewer requests for updated Forms I-693 are necessary.

For more information on Form I-693, immigration medical exam, 

text | whatsapp | call 407-292-7730 or email gail@gaillaw.com

FREE phone & in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2019, Law Offices of Gail S. Seeram. All Rights Reserved.

No More Interpreters in Immigration Court

According to news reports, the policy of no more interpreters in immigration court was officially announced to judges on Thursday. The policy is set to begin nationwide on the week of July 15, 2019. However, it has not been publicly confirmed by the Executive Office for Immigration Review, the agency which oversees the immigration courts.

All immigrants in removal proceedings have a right to interpretation, but how that interpretation is carried out varies from place to place. In most locations, interpreters sit next to immigrants when they appear in front of a judge, translating from the immigrants’ language to English and vice versa. 

Under the new policy, interpreters in immigration court will not be available for initial hearings or master hearings. Instead, immigrants who don’t speak English will watch a video orientation in “multiple languages,” and will not be permitted to ask questions about the video. Once the immigrant appears in front of the judge, they will only be able to receive interpretation through the phone.

Telephonic interpretation is often of lower quality than in-person interpretation. Telephonic interpreters have to wait longer to determine whether someone has finished talking, slowing proceedings down. Since they can’t see people, they can’t consider facial expressions or body language in their interpretation. Low-quality telephone lines and volume problems may prevent them from understanding everything that was said.

Before the policy rolled out, immigration judges expressed significant reservations. In leaked emails revealed by BuzzFeed, judges attacked the policy as misguided, with one judge suggesting that playing a video means he will be sitting in court “twiddling my thumbs while the message plays.” Another judge said that the “entire premise of this plan is wrongheaded,” and indicated that it is “disruptive to my court and definitely will not be a time saver.”

About the Author: Aaron Reichlin-Melnick is a Policy Analyst at the American Immigration Council, where he works primarily on immigration court issues and the intersection of immigration law and policy.

Why is my Immigration Case Processing taking so long?

Why Hasn’t Your Case Been Decided Yet? 

Nationwide, you and millions of families, businesses, and people applying for humanitarian relief are waiting longer for U.S. Citizenship and Immigration Services (USCIS) to process and approve your applications and petitions. If you filed Form I-130/I-485 based on marriage to a U.S. citizen, under the law, you should receive a work permit within 90 days of submitting the Form I-130/I-485. Currently, the wait time for a work permit is over 9 months.

Five years ago, an average case was taking about five months to process. By Fiscal Year (FY) 2018, that same applicant waited nearly 10 months. Those extra months of waiting halt business operations, keep families separated, and jeopardize people’s lives. 

Who Is Affected? 

You and other people applying for family-based benefits, employment-based benefits, naturalization, travel documents, and employment authorization are all experiencing delays. In FY2018, a staggering 94 percent of all immigration petitions and application form types took longer to process when compared to FY2014. 

Why Are Cases Taking Longer? 

Many factors can slow down your case. New policies at USCIS are restricting legal immigration. For example, one policy requires USCIS officers to conduct duplicate reviews of past decisions, adding unnecessary work to each case. 

Such inefficient policies help explain why processing times are increasing even as USCIS application rates are decreasing. Recent USCIS data shows that USCIS’s average processing time rose by 19 percent from FY2017 to FY2018, even while overall numbers of case receipts declined by 13 percent during that same period. 

Congress intended USCIS to function as a service-oriented agency on behalf of the American people. But the agency is failing its mission with unacceptably and increasingly slow case processing. 

For more information on immigration case processing, 

text | whatsapp | call 407-292-7730 or email gail@gaillaw.com

FREE phone & in-office consultation – FREE Live Chat www.GailLaw.com

Copyright © 2019, Law Offices of Gail S. Seeram. All Rights Reserved.

Trump will make Asylum Seekers Pay Fee

President Donald Trump ordered major changes to U.S. asylum policies that would charge fees to those applying for humanitarian refuge in the United States.

Trump’s directive also calls for tightening asylum rules by banning anyone who crosses the border illegally from obtaining a work permit, and giving courts a 180-day limit to adjudicate asylum claims that now routinely take years to process because of a ballooning case backlog.

The order, announced in a presidential memorandum, comes as the president seeks to mobilize his supporters with a focus on illegal immigration ahead of his 2020 reelection campaign

The surge of migrants from Central America arriving at the U.S. southern border with Mexico has frustrated the Trump administration, which has been trying various methods to stem the flow, all of them thus far unsuccessful. The proposed changes to the asylum system aim to address one of the most confounding aspects of the surge: families seeking safe passage using long-standing U.S. asylum protections.

More than 103,000 migrants crossed the U.S.-Mexico border last month, the highest level in more than a decade. About 60 percent were Central American parents traveling with children who, upon arrival on U.S. soil, have the legal right to request refuge from persecution.

Their numbers have overwhelmed the government’s ability to hold them in custody and quickly process their claims. Adults who arrive with children are typically assigned a court date and are released into the country, often reuniting with family members and taking jobs while their claims are pending.

Trump in recent weeks has increasingly mocked asylum seekers as fraudsters trying to game the system by making up stories about their hardships and fears of return to their native lands. Although homicide rates in Central America are among the highest in the world, many of those now arriving acknowledge they are fleeing poverty and hopelessness, which are not grounds for asylum protections.

The new White House measures, which call for new regulations in 90 days, follow one week after Trump issued a memorandum directing the secretaries of state and homeland security to find ways to combat visa overstays; it is another example of the administration trying to squeeze migration as it argues that the influx of undocumented people amounts to a national emergency.

The memorandum directs Attorney General William P. Barr and acting Homeland Security Secretary Kevin McAleenan to propose regulations within 90 days that would change various aspects of the way asylum cases are handled.

It calls for the United States to charge a fee for asylum applications, and it seeks to ensure that “absent exceptional circumstances,” all asylum applications will be adjudicated within 180 days of filing.

The moves would prohibit those who have entered the United States illegally from receiving provisional work permits until they have been approved for relief or protection from removal.

U.S. immigration law grants the attorney general the authority to impose fees on asylum applicants but does not require such payments, and migrants seeking refuge to avoid deportation have not been charged.

David A. Martin, a former Homeland Security deputy general counsel who helped make changes to the asylum system in the 1990s, said that he had never heard of charging a fee to applicants and that it would be a “bad idea.”

Asylum seekers are fleeing for their lives — fearing torture or death in their home countries — and often cannot afford to survive without assistance in the United States, he said.

“Genuine asylum seekers by definition leave in the most urgent of circumstances,” Martin said. “As a group, they tend to be very short on resources. If you’re going to leave the possibility of refuge for people who legally qualify truly open, you wouldn’t impose a barrier of a fee.”

Charging a fee for asylum claims would put the United States in the clear minority. A study of 147 countries found that the “vast majority” did not charge a fee to apply for asylum, according to a December 2017 report by the Law Library of Congress’ Global Legal Research Center. Some nations charged migrants fees for temporary or permanent protection visas, though migrants could apply for waivers.

But almost a decade ago, Martin said, asylum cases started to pile up again and the government failed to invest enough in the immigration courts to keep up. Now the court backlog exceeds 850,000 cases, including asylum, with approximately 400 judges to handle them.

But they said the presidential memo could cause chaos in the already overwhelmed immigration courts, intensifying pressure on immigration judges who would be subject to case-completion quotas.

“It’s not that asylum seekers don’t want other cases to be quickly adjudicated,” she said. “There’s a fine line between quick adjudication and being railroaded through the system. … It’s not like asylum seekers want to sit here in limbo forever,” she said. “But they also don’t want to be punished for seeking asylum.”