The U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) today (August 12, 2019) announced a final rule that clearly defines the long-standing public charge inadmissibility law.

DHS has revised the definition of public charge to better ensure that aliens subject to the public charge inadmissibility ground, found at section 212(a)(4) of the Immigration and Nationality Act (INA), are self-sufficient. By law, in determining whether an alien is inadmissible under this ground, the government must at a minimum consider the alien’s age; health; family status; assets, resources, and financial status; and education and skills; and may consider any required affidavit of support.

The final rule defines the term public charge to mean an alien who receives one or more designated public benefits for more than 12 months, in total, within any 36-month period. The rule further defines the term public benefit to include cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and subsidized public housing.

This list of public benefits in the final rule is an exhaustive list with respect to non-cash benefits. However, cash benefits for income maintenance may include a variety of general purpose means-tested cash benefits provided by federal, state, local, or tribal benefit granting agencies, and only public benefits specifically listed in the rule will be considered. Public benefits not listed in the rule are not considered in the public charge inadmissibility determination. The rule does not include, for example, consideration of emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, Head Start, or student or home mortgage loans.

This rule also clarifies that DHS will not consider the receipt of designated public benefits received by an alien who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431.

Similarly, DHS will not consider the Medicaid benefits received: (1) for the treatment of an “emergency medical condition,” (2) as services or benefits provided in connection with the Individuals with Disabilities Education Act, (3) as school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law, (4) by aliens under the age of 21, and (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.

The final rule also establishes the totality of the circumstances standard for determining whether an alien is likely at any time in the future to become a public charge, which includes weighing, at a minimum, the alien’s age; health; family status; assets; resources and financial status; education and skills; prospective immigration status; expected period of admission; and sufficient affidavit of support under section 213A of the INA. No single factor alone, including the receipt of public benefits, is outcome determinative: The determination of an alien’s likelihood of becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances and by weighing all of the factors that are relevant to the alien’s case.

This rule also explains how USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100 (adjusted for inflation); the actual bond amount would be dependent on the individual’s circumstances.

This rule also makes nonimmigrants in the United States who have received, since obtaining the nonimmigrant status they seek to extend or from which they seek to change, designated public benefits above the designated threshold generally ineligible for extension of stay and change of status.

Importantly, this regulation does not apply to humanitarian-based immigration programs such as refugees, asylees, special immigrant juveniles (SIJs), certain trafficking victims, victims of qualifying criminal activity, or victims of domestic violence.

The final rule applies to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date of the final rule. Applications and petitions pending with USCIS on the effective date of the final rule will be adjudicated under the 1999 Interim Field Guidance. In addition, the final rule contains special provisions for the consideration of public benefits received before the effective date of the final rule: any benefits excluded from consideration under the 1999 Interim Field Guidance (for example, SNAP, Section 8 Housing Vouchers) that are received before the effective date of the final rule will not be considered; any public benefits that would have been considered under the 1999 Interim Field Guidance and are received before the effective date of the final rule will be considered in the totality of the alien’s circumstances, but will not be weighted heavily.

New immigration Public Charge rules were issued today, that will come into force of law in the next few months. The rule is over 800 pages long and the estimated time to read it is between 16-20 hours as stated in the rule itself. It is focussed on attacking low income legal immigration where immigrants and non-immigrants are attempting to follow the law, but are deemed too likely to be eligible for public benefits from any governmental source from local cities to states.

At this stage it is unclear how or when this new rule will go into effect as lawsuits will likely be filed soon. What is known is that some of the most controversial points made in the draft rule that was published earlier have been modified.

With that said, it does appear that going forward it will be a much higher burdern in general to gain approval for Legal Permanent Resident Status or Naturalization to become a US citizen for many applicants. We are also expecting to see new forms, and potentially new immigration fees (or increased fees) as part of this rule change. 

Many immigrants and non-immigrants will be tempted to immediately change their behaviour and remove themselves from any form of public benefit. However we do not recommend making any changes that may endanger someones health or access to food for themselves and their family. It is too early to make any decision that important, and either way immigration may be allowed to look at conduct that happened in the past so any damage may already have been done.

In addition, decisions will be made on a case-by-case basis taking into consideration the "totality of the circumstances." Therefore no two situations will be treated the same.

As this new rule is rolled out we will continue to provide more details attack to legal immigration to the US. 

Here is a link to the new rule in it's entirety. 

On May 31, 2019, the State Department added new questions to visa application forms , DS-160/DS-156 Nonimmigrant Visa Application and Form DS-260, Immigrant Visa Application. Visa applicants now have to disclose the social media platforms that they have used within the previous five years and provide their user names or handle for each platform.

This information needs to be provided through a drop down list of common social media platforms, although some of the platforms listed are defunct. Applicants are instructed to not provide the passwords for these accounts.

Additional questions requesting the applicant’s current e mail and phone number, as well as a list of additional e mail addresses and phone numbers used in the past five years also now appear on the forms. If applicants are unable to provide the precise details, they can insert “unknown”, but this could result in additional screening or delays during the visa process.

It is recommended that anyone applying for these forms use good judgement when posting and sharing on social media, as well as the knowledge and awareness that the Department of State can access and review whatever is posted. There is a chance that officers might misunderstand or misinterpret content.

In order to avoid inconsistencies between applications and social media profiles, applicants should make sure that their social media profiles are up-to-date concerning employment history, residence history, marital status, and similar relevant topics that are covered in other parts of the DS-160, DS-260, and the underlying visa application.  

A treaty investor agreement (E2 Visa) has been signed  between the United States and Israel and became effective as of May 1, 2019.  Pursuant to the treaty, Israeli citizens will be able to apply for an E2 visa at the U.S. Embassy Branch Office Tel Aviv.

Israeli citizens may now, with a personal investment of as little as $80,000 USD (depending on the nature of the business), live and work with their family in the United States as non-immigrants and be a part of the American Dream.

Here is how it can work:

1. Create a new business (start up) or invest in an existing business using your personal funds of around $80,000 USD or more. The actual size of the investment may vary depending on the nature of your business and generally reflects the Real Market Value of a business that will provide for more than your own personal income, i.e. will employ additional US workers or subcontractors.
    
2. Personal funds can come from any legal source, such as savings, gifts or loans from friends and family, or any other legal source that is not secured against the business. 
    
3. Apply for Change of Status to E-2 or apply for an E-2 visa in your home country. Processing times are about eight (8) to ten (10) weeks. Premium Processing is available from USCIS for Change of Status at an additional cost, which will lead to an approval in as little as 15 days.
    
4. E-2 status will last for up to two (2) years - and may be renewed for as along as you develop, control, and grow your business at the discretion of US immigration. ​

"Immigration Law is a mystery and a master of obfuscation, and the lawyers who can figure it out are worth their weight in gold."  - Karen Kraushaar, INS Spokesperson, Washington Post, April 2001

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character (GMC) for naturalization even where that conduct would not be an offense under state law.

Since 1996, a number of states and the District of Columbia have enacted laws to decriminalize the cultivation, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture, cultivation, possession, or distribution may lead to criminal1 and immigration consequences. This guidance, contained in Volume 12 of the Policy Manual, is controlling and supersedes any prior guidance on the topic.

Policy Highlights

 Clarifies that violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing GMC for naturalization even where the conduct would not be a violation of state law.

 An applicant who is involved in certain marijuana related activities may lack GMC if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.

Citation Volume 12: Citizenship and Naturalization, Part F, Good Moral Character, Chapter 5, Conditional Bars for Acts in Statutory Period [12 USCIS-PM F.5]

The Department of Homeland Security (DHS) posted today for public inspection, a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption.

The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions.

The rule will be published in the Federal Register on Jan. 31, and will go into effect on April 1, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season. 

Effective April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption.

Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations. Specifically, the change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

USCIS will begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS will provide H-1B cap filing instruction on uscis.gov in advance of the filing season.

USCIS has issued a policy memorandum (PM) providing guidance to USCIS officers on when to consider waiving the interview requirement for Form I-751, Petition to Remove Conditions on Residence. This PM goes into effect on December 10, 2018 and applies to all Form I-751 petitions received on or aer December 10.

Generally, USCIS officers must interview a conditional permanent resident who is the principal petitioner on a Form I-751, unless the interview is waived.

This guidance explains that officers may consider waiving an interview if they are satisfied that:

(1) They can make a decision based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into in order to evade U.S. immigration laws;

(2) For Form I-751 cases received on or or December 10, 2018, USCIS has previously interviewed the principal petitioner;

(3) There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and

(4) There are no complex facts or issues that require an interview to resolve.

When determining whether to waive an interview, these considerations apply regardless of whether the Form I-751 is filed as a joint petition or as a waiver of the joint filing requirement.

This PM applies to all USCIS officers adjudicating Form I-751 and fully replaces the June 24, 2005, PM, “Revised Interview Waiver Criteria for Form I-751, Petition to Remove the Conditions on Residence.”

Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days that H-1B cap petitions may be filed, the advanced degree exemption is selected prior to the H-1B cap.

The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions towards the advanced degree exemption. This proposed change would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries.

The proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

Of course the flip side to this will be correspondingly fewer H-1B Cap slots available for those without Advanced Degrees. It remains to be seen if this rule will become final or face legal challenges. 

Read the full rule here:

https://www.federalregister.gov/documents/2018/12/03/2018-26106/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject

The Department of Homeland Security (DHS), in conjunction with the Department of Labor (DOL), has published a joint notice of proposed rulemaking (NPRM) that would modernize the recruitment requirements for employers seeking H-2B nonimmigrant workers to make it easier for U.S. workers to find and fill these open jobs. The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs.

The proposed rule would require electronic advertisements to be posted on the internet for at least 14 days, replacing the print newspaper advertisements that regulations currently require.

DHS and DOL believe this is a more effective and efficient way to disseminate information about job openings to U.S. workers. The Departments believe that electronic advertisements, posted on websites that U.S. workers in the area of the job opportunity would use, best ensures that U.S. workers learn of job opportunities.

The joint rule proposes phasing out the current requirements with a limited transition period. During the transition, employers would be able to choose between print and electronic advertisements. This provision should provide flexibility for employers who may have already purchased print advertising or have advertising contracts in place.

For more information, read the NPRM published in the Federal Register on Nov. 9, 2018. USCIS encourages public feedback on the proposed rule before the comment period ends on Dec. 10, 2018.

ICE Worksite Raid: Employer Rights and Responsibilities

When it comes to an immigration worksite raid preparation is critical. Even if you are meticulous in confirming the work authorization of all of your employees, Immigration and Customs Enforcement (ICE) could investigate your workplace in connection with a lead or complaint, or based on other factors. If you do not have a worksite enforcement action plan in place consult with your immigration attorney so that in the event ICE makes an unannounced visit, you and your employees are ready. But in the meantime, if ICE comes to your work place, be aware of the following:

• Call Your Lawyer. When ICE arrives at your worksite, call your lawyer immediately. The receptionist or company representative should tell the officers, “Our company policy is to call our lawyer and I’m doing that now.” Your lawyer may be able to come to the worksite quickly to assist or speak to the ICE officers over the phone.

• Scope of Operation. Immigration officers are free to enter any public areas of your work place, but must have a valid search warrant or your consent to enter non-public areas.

• • A valid warrant must be signed and dated by a judge. It will include a time frame within which the search must be conducted, a description of the premises to be searched, and a list of items to be searched for and seized (e.g., payroll records, employee identification documents, I-9 forms, SSA correspondence, etc.)
  • An agent will serve the search warrant on a receptionist or company representative and alert other agents to enter.
  • Your company can accept the warrant but not consent to the search. If you do not consent to the search, the search will proceed but you can later challenge it if there are grounds to do so.
  • Depending on the type of business, ICE may demand that equipment be shut down and that no one leave the premises without permission.
  • ICE may move employees into a contained area for questioning.
  • While some agents question employees, others will likely execute the search and seizure of items listed in the warrant.

• Employer Rights and Responsibilities. Employers have a number of rights and responsibilities during an ICE worksite raid:

• • If a search warrant is presented, examine it to ensure that it is signed by the court, that it is being served within the permitted time frame, and that the search is within the scope of the warrant – the area to be searched and the items to be seized. Be sure to send a copy of the warrant to your attorney.
  • Write down the name of the supervising ICE agent and the name of the U.S. attorney assigned to the case.
  • Have at least one company representative follow each agent around the facility. The employee may take notes or videotape the officer. Note any items seized and ask if copies can be made before they are taken. If ICE does not agree, you can obtain copies later.
  • If agents presented a valid search warrant and want access to locked facilities, unlock them.
  • Request reasonable accommodations as necessary. If agents insist on seizing something that is vital to your operation, explain why it is vital and ask for permission to photocopy it before the original is seized. Reasonable requests are usually granted.
  • Do not block or interfere with ICE activities or the agents. However, you do not have to give the agents access to non-public areas if they did not present a valid search warrant.
  • Object to a search outside the scope of the warrant. Do not engage in a debate or argument with the agent about the scope of the warrant. Simply present your objection to the agent and make note of it.
  • Protect privileged materials.    
    • If agents wish to examine documents designated as attorney-client privileged material (such as letters or memoranda to or from counsel), tell them they are privileged and request that attorney-client documents not be inspected by the agents until you are able to speak to your attorney.
    • If agents insist on seizing such documents, you cannot prevent them from doing so. If such documents are seized, try to record in your notes exactly which documents were taken by the agents.
  • Ask for a copy of the list of items seized during the search. The agents are required to provide this inventory to you.
  • Company representatives should not give any statements to ICE agents or allow themselves to be interrogated before consulting with an attorney.
  • You may inform employees that they may choose whether or not to talk with ICE, but do not direct them to refuse to speak to agents when questioned.
  • Do not hide employees or assist them in leaving the premises. Do not provide false or misleading information, falsely deny the presence of named employees, or shred documents.
  • Don’t forget the health and welfare of your employees. Enforcement actions can sometimes last for hours. If an employee requires medication or medical attention or if employees have children who need to be picked up from school, communicate these concerns to the ICE officers.

• Employees Have the Right to Remain Silent and the Right to an Attorney. Ask if your employees are free to leave. If they are not free to leave, they have a right to an attorney. Though you should not instruct your employees to refuse to speak to ICE, they also have the right to remain silent and do not need to answer any questions.

• • Your employees do not need to answer questions about their immigration status, where they were born, or how they entered the United States. They may exercise their right to remain silent and may ask to speak to an attorney.
  • If ICE tries to determine your employees’ immigration status by asking them to stand in groups according to status, they do not have to move, or they can move to an area that is not designated for a particular group.
  • They may also refuse to show identity documents that disclose their country of nationality or citizenship.
  • If your employees are detained or taken into custody, be sure that their families are contacted and any money owed to the employees is paid.

• Post-Raid Issues. The investigation does not end after ICE leaves the premises. ICE and the U.S. Attorney will thoroughly review the items seized during the raid and the investigation, including undercover surveillance, can continue for many months.

ICE is not the only law enforcement agency that can visit or conduct an enforcement action against your worksite. The Department of Labor may also conduct an investigation, and in some jurisdictions, state and local police can act on behalf of ICE in an operation. For more information about your rights and responsibilities as an employer in the event of an ICE raid or other enforcement action or investigation at your work place, speak to a qualified immigration lawyer.

Visit the American Immigration Lawyers Association and the American Immigration Council websites for more information. The contents of this document do not constitute legal advice.