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Public Charge Final Rule

UPDATE: As of February 24, 2020, the public charge rule has been implemented nationwide after the Supreme Court stayed the limited state-wide injunction in Illinois against the Department of Homeland Security.  At the same time, the Department of State also began implementing its amended public charge rule, and visa applicants from abroad should prepare Form DS-5540 ahead of their visa interview in case the consular officer requests it.  For more information read the announcement on the Department of State's website.    On January 30, 2020 the USCIS announced that it will resume enforcing the Inadmissibility on Public Charge Grounds Final Rule (“Final Rule”) and begin implementing it on February 24, 2020. Foreign nationals who are applying for visas and green cards from within the United States — through a process known as “Adjustment of Status” — will be subject to the Final Rule starting on February 24, 2020.  For visa applicants who are outside of the country, the Final Rule has not yet been implemented. The Department of State announced in October 2019 to delay enforcement until they first finalized their own information collection form and changes that they would need to make to their policy manual. The Final Rule had originally become effective on October 15, 2019 but was enjoined due to litigation after lawsuits were filed to prevent the Trump Administration’s attempt to enforce the Public Charge rule, which was seen as an effort to expand the government’s ability to deny access to green cards or visas for legal immigrants who would become dependent on public assistance. On January 27, 2020, the U.S. Supreme Court lifted the injunction and allowed the Final Rule to go forward, with exception to the State of Illinois, where the Final Rule remains enjoined. This article offers information concerning the Final Public Charge Rule, what factors will be taken into consideration, and which individuals are likely to be affected by the change. Background on the Public Charge Rule Who is subject to the public charge inadmissibility ground? Unless specifically exempted by Congress, all foreign individuals seeking immigrant or nonimmigrant visas abroad are subject to the public charge inadmissibility ground, as are individuals seeking admission to the United States on immigrant or nonimmigrant visas, and individuals seeking to adjust their status. In certain cases, even lawful permanent residents returning from a trip abroad will be subject to inadmissibility determinations, depending on the circumstances. Immigrants who have been exempted by Congress from the public charge ground of inadmissibility include refugees, asylees, and Afghans and Iraqis with special immigrant visas. For a general overview and developments in this area read our previous articles here.

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Public Charge Updates in 2019

One of the key inquiries made by the United States Citizen and Immigration Services (USCIS) when deciding to grant or deny a nonimmigrant visa or permanent residency is whether an applicant will likely be or become a public charge. A public charge is an individual that will heavily rely on the federal government for assistance. For the purposes of this article, we will focus on public charge analysis as applicable to an applicant for U.S. permanent residency. An applicant has the duty to show that he or she will not be a public charge by demonstrating he or she has and will have sufficient income or financial support if granted permanent residency in the United States. When determining if an applicant is or is likely to become a public charge the USCIS considers the applicant’s age, health, family status, assets, resources, financial status, education, and skills.  Furthermore, applicants are required to submit an affidavit of support from family members or friends pledging financial support to the applicant in the case of financial hardship. The USCIS looks at all the documentation submitted by the applicant in its entirety and either grants or denies permanent residency, or a change in visa status, based on a totality of the circumstance’s analysis. Traditionally, not all government services and assistance have been considered in the public charge analysis.  Recently, the Department of Homeland Security (DHS) proposed a change to current rules that would affect what services and support the USCIS would consider when evaluating whether an applicant is or would likely become a public charge. Proposed rule changes do not have the force of law until the rules are finalized, therefore, current permanent residency applicants should not change the services they are currently receiving or refuse the use of government services based on any proposed changes. Current Public Charge Service Currently, the USCIS only considers a permanent resident applicant a public charge if the applicant is receiving or is likely to receive a public benefit from the Federal Government. Traditionally, a public benefit was limited in definition to the receipt of cash. Examples of cash services included Temporary Assistance for Needy Families, Supplemental Security Income (also known as social security), or long-term care facilities sponsored by the federal government. Traditionally, these programs are directly funded by federal income tax dollars and the USCIS has denied permanent resident status to immigrants that would increase the burden on social systems that are already financially struggling.  The USCIS may deny an applicant even if an applicant has not previously used public benefits, if the USCIS determines that the applicant is likely to rely on public benefits in the future. Proposed Changes The proposed changes are inspired by the Trump Administration’s policies to protect American Workers and American Wages. In the proposed changes, the DHS stated that the DHS seeks to increase self-sufficiency and more clearly define when a permanent resident has received a public benefit. The proposed changes would consider the use or the likely need of noncash support. Examples of noncash benefits include the Supplemental Nutrition Assistance Program (SNAP, formerly called food stamps), Housing Choice Voucher (formerly called section 8), Medicaid, and Medicare Part D. The DHS stated that if a foreign national is unable to provide themselves with food, shelter, and medical care, then the foreign national is not self-sufficient and will likely require assistance, now or in the future, from the state. Further, the DHS proposed rule clarifies when the use of noncash support would lead to a determination that the applicant was a public charge. First, if the noncash benefit can be monetized, then the value of the benefit may not exceed 15% of the Federal Poverty Guidelines (FPG) for a household of one within a period of 12 consecutive months based on the per-month FPG for the months during which the benefits are received. For example, the USCIS could determine the monetary value of a housing voucher and the voucher must not exceed 15% of the FPG for a single person household. If the voucher exceeded 15%, then the USCIS would find the applicant to be a public charge. Second, if the noncash benefit cannot be monetized, then the benefit must not be used for more than 12 months within a 36-month period. For example, it may be difficult to determine the exact value of medical care or services received, therefore, the applicant would be found a public charge if he or she received benefits for more than one year in the last three years. Emergency medical services are excluded from the proposed changes.

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Diversity Visa Lottery

Overview The Department of State distributes 50,000 visas through a lottery system to foreign nationals from countries with historically low rates of immigration to the United States. The Diversity Visa (DV) is meant to promote a diverse immigrant population and is not available to foreign nationals from “high admission” countries. A country is considered “high admission” if 50,000 or more people born in that country have immigrated to the United States under family or employment-based visa categories in the past five years. The Department of State divides the world into six regions: Africa, Asia, Europe, North America, Oceania, and South America, Central America and The Caribbean. Not every country within a given geographic region satisfies the DV requirements and foreign nationals should check the latest eligibility list before applying.  The Department of State’s website lists all eligible countries and any changes for each lottery cycle. An applicant may be residing in any country, including the United States, at the time of applying for a DV. Further, foreign nationals residing in the United States under temporary immigration status are not disqualified from entering the lottery. Consequently, a foreign national residing in the United States on a temporary visa may obtain a permanent residency through the DV lottery without having to return to his or her native country. At the time this article is written any foreign national who meets the requirements may submit an application for the 2019 DV visa between October 3, 2017, and November 7, 2017. Each year the application period occurs once a year, for a one-month period. Any applicant who submits more than one entry in a given year will be disqualified for that year. Once the deadline has passed, a computer randomly selects 50,000 individuals from all the applicants. No single country may obtain more than seven percent of the available DVs in a given year. While submitting an application to the DV lottery is free, if a foreign national win the lottery he or she must pay all visa application fees. If the foreign national is ineligible to enter the United States for any reason (i.e. health or security reasons) the foreign national will be denied a DV and all visa application fees will not be refunded.

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Financial Sponsorship Requirements in Family Based Immigration

Family sponsorship is one of the most common ways a foreign national can become a permanent resident, or receive a Green Card.  The United States allows U.S. citizens or permanent residents to sponsor family members that include children, parents, spouses and siblings – and bring them into the country. For more information on the specific visas, please see my article on Path to U.S. Citizenship. Obtaining a visa through family sponsorship will require the sponsoring family member to complete an affidavit of support, which is a declaration of intent to financially support the immigrant family member. An affidavit of support is required because the Immigration and Nationality Act grants the Attorney General the power to deny entrance into the United States if the individual “is likely at any time to become a public charge.”  In another context, a sponsoring employer may also be required to submit an affidavit of support for a foreign national if the sponsored foreign national, or the prospective employee, is related to the employer or holds a 5% or more in ownership interest in the entity that filed the visa petition. Therefore, whether applying to come to the United States or if already here, converting a temporary visa into permanent resident status, a foreign national must demonstrate they will not become a public charge through the filing of an affidavit of support.  What is a Public Charge? A public charge is an individual who is unable to support himself or herself without financial support from the government in the form of public cash or an individual who is expected to need long-term care facilities.

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Freedom of Information Act Request

A foreign national applying for a visa, a green card, or other immigration services may encounter delays or be denied if the U.S. immigration services rely on background information that the foreign national did not know existed. The Freedom of Information Act (FOIA) allows individuals to request information from federal agencies that may be critical to obtaining entrance into the United States. The U.S. government maintains all background information in an “A file,” which can usually be obtained in part or in its entirety with a FOIA request. The FOIA allows any person, regardless of immigration status, to access information from a federal agency as long as he /she reasonably describes the records requested and submits the request in accordance with the agency’s rules. A person is defined as an individual, partnership, corporation, association, or public or private organization that is not a governmental agency. Therefore, an employer or attorney may request the information on a foreign national’s behalf as long as the third-party has the permission of the foreign national. Before filing a FOIA case, the applicant should consider whether the information he/she requires is specific to them or general information about the agency. If the information is general, the agency may have proactively released the information on its website. Federal agencies are statutorily required to proactively disclose all final opinions and orders rendered in the adjudication of cases, specific policy statements, and certain administrative staff manuals. If an individual seeks additional information that is not proactively disclosed then he/she should consider submitting a FOIA request to the appropriate agency.

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Path to U.S. Citizenship

For foreign national who wishes to gain legal status and eventually citizenship in the United States, this may be achieved in a number of ways. Among the most common methods for a foreign national to achieve citizenship are either through employment or through family, including by marriage. Depending on the foreign national’s circumstances, other methods are also available. The first step on the road to citizenship is gaining legal entry to the U.S. While foreign national may eventually become a citizen despite illegal entry, the illegality of the entry will make gaining citizenship much more difficult, not to mention having to face possible detention and removal from this country, civil or perhaps even criminal penalties if the reentry was made following an existing removal order.  One can gain entry in different ways, oftentimes using either immigrant or nonimmigrant visa categories; however, some non-immigrant visa categories may not translate to citizenship. Next, in most cases a foreign national residing in the U.S. would have to first get permanent residency. Permanent residency, or a Green Card, can be awarded following entry with an immigrant visa or can be applied for from within the United States. A permanent resident can travel, re-enter, and work in the U.S. with fewer restrictions than someone with a non-immigrant visa. Once permanent residence is obtained, the foreign national must live in the United States for five consecutive years before applying for citizenship, or three years if married to a U.S. citizen spouse.  In addition, a foreign national must be able to demonstrate they are of good moral character and take a U.S. history and civics test in English, unless otherwise exempted. The remainder of this article is dedicated to the various ways one can enter and obtain permanent residency: First, the various possible visas available for temporary entry into the United States, or non-immigrant visas, which require further application for permanent residency; second, the various permanent visas foreign nationals can apply for directly; finally, special categories based on family relations and other unique situations. <Gaining admittance to the US>: Foreign citizens come to the U.S. for a myriad of reasons – to study, to be with family, to work, to escape persecution, or to share their culture. For every reason, there is generally a corresponding visa category. The U.S. has categories of visas for both immigrants and non-immigrants. Among the most common immigrant visas are family and employment-sponsored ones. In the non-immigrant category, there are temporary visas for those who visit for business or pleasure, treaty investors/traders, students, temporary workers, exchange visitors, those who are engaged to a U.S. citizen, intracompany transferees, those with extraordinary abilities or who are artists or entertainers, persons in religious occupations, and victims of trafficking and criminal activity. In addition, certain people may be eligible for the visa waiver program, which allows individuals from approved countries to gain entry into the U.S. without applying for a visa from their consulate, so long as they have a valid passport and pass the border inspection.

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