October 2018 Newsletter
In This Issue
DHS Announces Controversial Proposed Rule on Changes to Public Charge Definition
The Department of Homeland Security (DHS) has announced that it will soon publish a controversial proposed rule that would make it much more difficult for many who have lower incomes or less education, or who have received public benefits, to become permanent residents, obtain visas, or extend or change/adjust their nonimmigrant visa status. Reportedly, rumors of the impending rule have already resulted in some immigrants in the United States dropping out of social services for fear of potential complications to their efforts to stay in the country.
Currently, those who are likely to become a burden on the government can already be excluded if they accept certain cash benefits. The proposed rule would greatly expand the definition of public benefits to be considered when public charge determinations are made. DHS explained that the public benefits proposed to be designated in this rule include federal, state, local, or tribal cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid (with limited exceptions for Medicaid benefits paid for an "emergency medical condition," and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and public housing. The first three benefits listed above are cash benefits that are already covered under current policy, DHS said.
There are some exclusions. DHS noted that by statute, asylees, refugees, and other categories of vulnerable individuals are not subject to the public charge ground of inadmissibility. When considering receipt of public benefits in the public charge inadmissibility determination, DHS would also not consider any public benefits received by those serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or the spouse or child of the service member. Additionally, DHS would not consider disaster relief, emergency medical assistance, benefits received by a person's U.S. citizen children, or Medicaid benefits received by children of U.S. citizens and potential adoptive children of U.S. citizens.
Among other things, the proposed rule would also require an immigrant to earn at least 125 percent of the federal poverty guidelines, and states that a household income of 250 percent of that level would be deemed "heavily positive." Heavily weighted positive factors would include "significant income, assets, and resources." Income and financial status would be considered as part of the "totality of the circumstances." Some deemed inadmissible on public charge grounds might be allowed to pay for a public charge bond at the risk of losing it if they use any of the listed benefits. Negative considerations would include limited English proficiency and adverse physical or mental health conditions.
The proposed rule would also allow U.S. Citizenship and Immigration Services (USCIS) to consider whether an applicant is using or receiving, or likely to use or receive, public benefits. The proposed rule would impose new costs on people applying to get green cards using Form I-485 who are subject to the public charge grounds of inadmissibility. DHS would require any adjustment applicants subject to the public charge inadmissibility ground to submit new Form I-944 with their Form I-485 to demonstrate they are not likely to become a public charge.
The proposed rule would also impose additional costs for seeking extension of stay or change of status by filing Form I-129 (Petition for a Nonimmigrant Worker), Form I-129CW (Petition for a CNMI-Only Nonimmigrant Transitional Worker), or Form I-539 (Application to Extend/Change Nonimmigrant Status), as applicable. These applicants would have to demonstrate that they have not received, are not currently receiving, and are not likely in the future to receive, public benefits as described. DHS noted that these applicants may also incur additional costs if the agency determines that they must submit Form I-944 in support of their applications for extension of stay or change of status. Moreover, the proposed rule would impose new costs associated with the proposed public charge bond process, including new costs for completing and filing Form I-945 ( Public Charge Bond) and Form I-356 (Request for Cancellation of Public Charge Bond).
In addition to the effects on individuals, DHS said it recognizes that anticipated reductions in federal and state transfers under federal benefit programs as a result of the proposed rule may have "downstream and upstream impacts on state and local economies, large and small businesses, and individuals." For example, DHS explained, the rule might result in reduced revenues for healthcare providers participating in Medicaid, pharmacies that provide prescriptions to participants in the Medicare Part D Low Income Subsidy (LIS) program, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs.
Current or past applications for or receipt of public benefits as defined "suggests that the alien’s overall financial status is so weak that he or she is or was unable to fully support him or herself without government assistance, i.e., that the alien will receive such benefits in the future. DHS, therefore, proposes to consider any current and past receipt of certain public benefits "as a negative factor in the totality of the circumstances, because it is indicative of a weak financial status and increases the likelihood that the alien will become a public charge in the future." DHS proposes that past receipt of a fee waiver be considered as part of the financial status factor. "Requesting or receiving a fee waiver for an immigration benefit suggests a weak financial status. Since fee waivers are based on an inability to pay, a fee waiver for an immigration benefit suggests an inability to be self-sufficient," DHS said.
DHS also said that an applicant’s education and skills "are mandatory statutory factors that must be considered when determining whether an alien is likely to become a public charge in the future." In general, DHS said, someone with educational credentials and skills "is more employable and less likely to become a public charge." DHS, therefore, proposes that when considering this factor, the agency would consider "whether the alien has adequate education and skills to either obtain or maintain employment sufficient to avoid becoming a public charge, if authorized for employment," to include consideration of the applicant's history of employment, English proficiency, licenses, certifications, and academic degrees.
Another proposed "heavily weighed negative factor" would be a lack of "private health insurance or the financial resources to pay for reasonably foreseeable medical costs related to a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide care for him- or herself, to attend school, or to work." A person may provide evidence of the prospect of obtaining health insurance, such as pending employment that provides employer-sponsored health insurance, DHS said. With respect to a person's general state of health, DHS said the agency "would rely on panel physician and civil surgeon medical examination for purposes of whether an individual's circumstances [give] rise to this heavily weighted negative factor." Age would also be considered, with an age of less than 18 or greater than 61 requiring a demonstration of employment or sufficient household assets and resources.
The categories and programs could change under the final rule, which could take many months up to a year or longer before it is finalized. Among other things, the Trump administration will need to review potentially thousands of comments before it can finalize the rule. Moreover, the rule is likely to be subject to litigation.
DHS said the proposed rule will be published in the Federal Register "in the coming weeks." Once it is published, a comment period will last 60 days.
Read the DHS press release announcing the proposed rule.
Read a copy of the proposed rule marked "unofficial" and provided by DHS.
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USCIS is Conducting Site Visits to H-2B Employers
According to reports, U.S. Citizenship and Immigration Services (USCIS) is conducting site visits to H-2B employers nationwide in a variety of industry sectors. A site inspector may ask to review documentation and interview staff and the H-2B worker. There may be follow-up contacts and the agency will document the findings in a Compliance Review Report and determine whether further investigation is warranted.
Among the questions being asked of employers are the H-2B workers' job titles, dates of beginning and ending of employment, daily job duties, physical locations where the work is performed, the onsite point of contact for the workers at the worksite, how the workers are monitored to determine whether they are appearing for work as required, whether any of the workers failed to complete the full employment period and, if so, whether the employer reported this failure to USCIS (including documentary evidence such as copies of emails or mailed letters), whether the employer offers housing to H-2B workers and if so, where, what type, and at what cost, and whether the employer offers transportation to and from the worksite.
Click here for general information on site visits (which does not mention H-2B workers specifically).
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State Dept. Opens Registration for Diversity Visa Program for 2020
The Department of State has announced that the online registration period for the DV-2020 diversity visa lottery program begins on Wednesday, October 3, 2018, at 12 noon EDT (GMT-4), and concludes on Tuesday, November 6, 2018, at 12 noon EST (GMT-5). Individuals who submit more than one entry during the registration period will be disqualified. The Department advises applicants not to wait until the last week of the registration period to enter because heavy demand may result in website delays. No late entries or paper entries will be accepted.
There are no changes concerning eligible countries from the previous fiscal year. For DV-2020, natives of the following countries are not eligible to apply, because more than 50,000 natives of these countries immigrated to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
There are two other ways in which those who were not born in an eligible country might be able to qualify, the Department said:
Click here for an English-language version of the instructions in PDF format.
Read the related Federal Register notice.
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President Signs Temporary Funding Bill Extending Four Immigration Provisions Until December 7
The E-Verify, Conrad State 30 J-1 waiver program for certain foreign physicians, EB-5 regional center, and special immigrant non-minister religious worker programs have been extended past the September 30 deadline by late-breaking legislation. President Donald Trump signed a combined "minibus" appropriations bill and continuing resolution on September 28, 2018, to continue funding these and other programs until December 7, 2018.
Click here for more information on the legislation.
Read the Visa Bulletin for October 2018.
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USCIS, OFLC Note Relief Available to Hurricane/Typhoon Survivors
U.S. Citizenship and Immigration Services (USCIS) and the Office of Foreign Labor Certification (OFLC) of the Department of Labor's Employment and Training Administration recently released information about immigration services and relief that may help people affected by emergency situations, including severe storms such as Hurricane Florence and Typhoon Mangkhut.
USCIS. The following USCIS services may be available on a discretionary basis upon request for individuals who have been directly affected by Hurricane Florence or Typhoon Mangkhut, USCIS said:
OFLC. Hurricane Florence generated significant damage to businesses in South Carolina, North Carolina, Virginia, and other states, OFLC noted. The agency accordingly established internal procedures that recognize, as a result of the storm, that employers and/or their representative(s) may not be able to timely respond to a request for information or documentation, such as an audit. OFLC said it "will extend the time to respond for employers affected by the storm." Extensions will be granted "for issues that arise from storm-related conditions, including delays caused as a result of the storm, as well as those delays that may have occurred as a result of storm preparations in the week before the storm," OFLC said.
The OFLC announcement discusses the effects of the storm on mail delivery, email delivery, advising OFLC of new mailing addresses and contact information, and applicability of due date deadline extensions.
For applications in the H-2A, H-2B, and PERM programs, and requests for prevailing wages, where either the employer or its attorney or agent is located in a Hurricane Florence major disaster area (the counties and parishes that have been or are later designated by the Federal Emergency Management Agency as disaster areas eligible for individual or public assistance), OFLC said it is postponing certain regulatory and procedural deadlines. Specifically, OFLC "is extending deadlines for employer responses to Atlanta National Processing Center (ANPC), Chicago National Processing Center (CNPC), and National Prevailing Wage Center issued audit requests, requests for additional information, requests for reconsideration, and similar requests that have deadlines," OFLC said. Extensions of time to appeal either (1) agency denials of labor certifications, debarments, revocations, or other agency actions related to the labor certification to the Office of Administrative Law Judges, or (2) adverse final agency actions on such matters to a federal court, must be made in each case to the presiding authority, the agency said.
Read the USCIS announcement.
Read the OFLC announcement, which includes additional information.
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USCIS Revises G-28 Notice of Entry of Appearance
U.S. Citizenship and Immigration Services (USCIS) has published a revised version of Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, with an edition date of 09/17/18. This revised version removes the geographic requirement for sending an original notice to a U.S. address for attorneys and representatives that had been added to the 05/05/16 and 05/23/18 versions of the form.
USCIS is also extending the grace period for prior versions of Form G-28. The 05/05/16 and 03/04/15 versions of the form are valid until November 19, 2018. Starting on that date, USCIS will only accept Forms G-28 with the edition dates of 09/17/18 or 05/23/18. The edition date appears at the bottom of the page on the form and instructions.
Read the USCIS notice.
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USCIS Now Accepting Copies of Negative O Visa Consultations Directly from Labor Unions
Effective September 14, 2018, U.S. Citizenship and Immigration Services (USCIS) has begun accepting copies of negative consultation letters directly from labor unions relating to a current or future O nonimmigrant visa petition request. A consultation letter from a U.S. peer group, labor organization, and/or management organization is generally required for petitions in the O visa classification.
O-1 and O-2 nonimmigrant visas are available to individuals with extraordinary ability in science, education, business, athletics, or the arts; individuals with extraordinary achievement in the motion picture or television industry; and certain essential support personnel.
USCIS explained that typically, a petitioner submits the necessary O visa consultation with the petition, and that this process requirement remains unchanged. USCIS Director L. Francis Cissna recently met with several labor unions to discuss concerns they had with the consultation process for O visa petitions, particularly "that some advisory opinions may be falsified by petitioners and submitted to USCIS as no-objections or favorable consultations, when in fact these were negative," the agency said. The labor unions will now be able to send a copy of a negative consultation letter to USCIS so it can be compared to the consultation letter submitted to USCIS by the petitioner.
USCIS said labor unions should send copies of negative O nonimmigrant consultation letters to UnionConsultationMailbox@uscis.dhs.gov. To make sure USCIS matches the letters to the correct petitions, labor unions should include the last five digits of each beneficiary's passport number in the consultation letters.
After six months, USCIS will analyze the data collected "to identify areas for improvement in the consultation process."
Read the announcement.
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USCIS Changes Filing Location for Petition to Remove Conditions on Residence
On September 10, 2018, U.S. Citizenship and Immigration Services (USCIS) changed the filing location for Form I-751, Petition to Remove Conditions on Residence. This form was previously filed at the California and Vermont Service Centers. Now, petitioners must send Form I-751 to a USCIS Lockbox facility. However, the California, Nebraska, Vermont, and Texas Service Centers will be the adjudicating offices. When filing at a USCIS Lockbox facility, petitioners have the option to pay the fee with a money order, personal check, cashier’s check, or credit card.
Click here for more information.
Click here for the USCIS's I-751 webpage.
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Attorney General Delivers Remarks to Largest IJ Class in History
On September 10, 2018, Attorney General Jeff Sessions delivered remarks to 44 new Immigration Judges (IJs), the largest class of IJs in history.
Among other things, Mr. Sessions said more IJs will be added by the end of this calendar year, "with a goal of seeing a 50 percent increase in the number" of IJs since the beginning of the Trump administration.
He also said that "[g]ood lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the [Immigration and Nationality Act] to advance their clients' interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty." He called attention to the fact that earlier in 2018, the Department of Homeland Security (DHS) "announced that it would seek to refer 100 percent of illegal border crossers to the Department of Justice for criminal prosecution in Federal courts." He said that U.S. Attorneys are prosecuting over 90 percent of those cases referred to the Department of Justice, which he noted is a "two to threefold increase" and is the " 'zero tolerance' policy you have heard about. You don't get to enter the border unlawfully, between ports of entry, and place our [Customs and Border Protection] officers at risk without consequences."
Mr. Sessions said that the asylum system "has been abused for years to the detriment of the rule of law, sound public policy, and public safety." He said that "[s]aying a few simple words—claiming a fear of return—has transformed a straightforward arrest for illegal entry and immediate return...too often into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing." He asserted that "the vast majority of the current asylum claims are not valid under the law." He said that for the past five years, only 20 percent of claims have been found to be meritorious after a hearing before an IJ, and that in addition, roughly 15 percent are found invalid by U.S. Citizenship and Immigration Services as a part of their initial credible fear screenings. "Further illustrating this point," Mr. Sessions said, "in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, only seven years later, that number had increased to 94,000. The number of these aliens placed in immigration court proceedings went from fewer than 4,000 to more than 73,000 by 2016—nearly a 19-fold increase—overwhelming the system and leaving legitimate claims buried."
Mr. Sessions also said it is the duty of the IJs to carry out his ruling on the principles of asylum and immigration law, and said "there will be more still to come." "When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law—even in tough cases. As we work to restore rule of law in our immigration system, we will send a clear message to the world that the lawless practices of the past are over. The world will know what our rules are, and great numbers will no longer undertake this dangerous journey."
Read the full text of Mr. Sessions' speech.
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New Publications and Items of Interest
Webinars for employers and employees The Immigrant & Employee Rights Section of the Department of Justice's Civil Rights Division will present a series of webinars for employers and employees.
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
Hodkinson Law Group News
We apologise for the delayed issuance of this month’s newsletter. Kehrela Hodkinson was in Colorado attending the Alliance of Business Immigration Lawyers (ABIL) meeting. She returned to London in time to chair the American Immigration Lawyers Association (AILA) Fall Conference, where she gave the opening remarks and participated in a panel on US citizenship, maintenance and abandonment of Lawful Permanent Residence and Renunciation of US citizenship. Now back in the office she is working hard to catch up on emails, phone calls and client meetings and appreciates your patience over the last several weeks.