The Department of Homeland Security (DHS) has released a new proposed rule which would outline the ways in which the agency determines a foreign national is inadmissible due to risk of becoming a public charge. Foreign nationals who wish to enter the U.S. or adjust their immigration status must provide evidence of financial stability, and establish that they will not become a ‘public charge,’ or dependent on government assistance, during their stay. Public charge inadmissibility does not, however, currently apply to naturalization proceedings or other protected classes of nonimmigrants. The new proposal seeks to require foreign nationals seeking extensions of status or adjustment of status “to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits.” The new proposal seeks to more clearly define the term ‘public charge’ for the purpose of determining admissibility.
The proposed rule would change current standards for determining admissibility due to the risk of becoming a future public charge. Additionally, DHS would define the types of public benefits that make a foreign national subject to public charge inadmissibility while including a designated threshold of benefits allowed for all nonimmigrants receiving such benefits. DHS also seeks to make it more difficult for current foreign national public charges to gain approval for a change of status or extension of stay application. The rule would apply to all individuals seeking to adjust their status to that of a lawful permanent resident. However, USCIS notes that “lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.”
Those seeking entrance as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles would be excluded from inadmissibility based on likelihood of public charge. Those applicants with “financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines” or those applicants with an income larger than 250 percent of the Federal Poverty Guidelines, are more likely to be excluded from inadmissibility on the ground of public charge status.
Last month, a federal suit brought forth new questions surrounding individual property rights at the U.S. border. Two months ago, an American woman filed a federal suit against the Department of Homeland Security after Customs and Border Patrol (CBP) agents seized her smartphone upon return to the United States and made copies of the data found on the device. Rejhane Lazoja, a Muslim-American woman, asked a federal judge to compel border officials to erase all data copied from her iPhone following the February seizure. On October 30th, Lazoja was granted her request when DHS settled the case by deleting all of Lazoja’s data collected by CBP. However, the lawsuit sheds new light on the continued uncertainty surrounding digital property rights at the border.
Unlike inside the U.S., CBP officers may search and seize property from individuals entering the country without a warrant. This “border doctrine” allows CBP officers to take property, including cellular devices, without approval from a judge. At the border, CBP agents may seize cellphones for an extended period of time, during which data is collected from the electronic device. In the case of Lazoja v. Nielson, the plaintiffs stated that the “seizure, retention, and any sharing of [Rejhane Lazoja’s] property without reasonable suspicion, probable cause, or a warrant have violated Ms. Lazoja’s rights under the Fourth Amendment of the U.S. Constitution.”
Although Lazoja received her cellphone 130 days after re-entering the U.S., DHS retained data collected from her device, including confidential correspondence with Lazoja’s attorneys. By retaining the American woman’s property for a period longer than 120 days, without a warrant or reasonable suspicion, the representatives for Ms. Lazoja argued that her Constitutional rights had been violated. Although the case was settled before adjudication, the problem surrounding data seizure, and retention, at the border remains. CBP maintains full discretion to seize and copy data from electronic devices belonging to individuals crossing the border, regardless of their citizenship status. As CBP agents become more strict under the direction of President Trump, there may be a rise in property and data seizures in the coming months.
Recently, the United States Customs and Immigration Service (USCIS) released a proposed revision to fee waivers offered to lower-income immigrants. For those currently living in the United States seeking to naturalize, this proposed change could place a significant financial burden on struggling families. Filed through the Federal Register, the proposed change is currently open for public comment from affected parties until November 27th.
Currently, the government offers automatic USCIS fee waivers for those individuals receiving means-tested public benefits. Means-tested public benefits include Food Stamps, Medicaid, SSI, TANF, and SCHIP as well as other benefits specific to certain states. Additionally, those within the federal poverty threshold (i.e. those households with an income at or below 150% of the poverty level at the time of filing) and individuals who can prove “financial hardship” can receive a waiver of immigration filing fees.
The proposed change would seek to remove automatic waivers for those with means-tested benefits from the Form I-912, Request for Fee Waiver. USCIS states that the change comes as measure to remove fee waiver eligibility based on “benefits [that] can vary from state to state, depending on the state’s income level guidelines.” For example, an applicant from California making over $50,000 a year qualifies for means-tested benefits, whereas an applicant from Alabama earning an equivalent income does not.
By restricting fee waivers to those who fall near the federal poverty line standards and financial hardship standards, USCIS hopes to see a rise in fee revenues. In fiscal year 2017 alone, USCIS granted over $367 million dollars word of fee waivers, an increase of over $20 million from last year. Although revenue will increase for USCIS, many individuals with unstable income will now face a significant financial burden. Naturalization filing fees alone can cost nearly over $600, excluding biometric fees. Thus, a struggling family living in California, where the cost of living is the 4thhighest in the U.S., would have to pay thousands of dollars to file naturalization applications if the change to the fee waiver is approved.
In the face of a terrible tragedy, foreign national spouses can face even more hardship after their U.S. citizen husband or wife passes. Typically, foreign nationals who are green card holders through their U.S. citizen spouse have the opportunity to apply for U.S. citizenship following a period of three years in the U.S. Unfortunately, the green card holding widows and widowers of U.S. citizens will face obstacles for future naturalization following the death of their spouse.
Immigration and Nationality Act
Under U.S. immigration law, permanent residents who have lived with their U.S. citizen spouses in the U.S. for at least three years may apply for U.S. citizenship at the end of three years. This allows spouses of U.S. citizens to apply for citizenship two years earlier than required for other permanent residents. Sadly, those individuals who have tragically lost their spouses before applying for or during their application for naturalization may not apply after three years of residence and instead wait the typically five years of residency. According the Immigration and Nationality Act:
A person is ineligible for naturalization as the spouse of a United States citizen under Section 319(a) of the Act if, before or after the filing of the application, the marital union ceases to exist due to death or divorce, or the citizen spouse has expatriated.
Under these restrictions, the surviving spouse may not apply for naturalization as a spouse of a U.S. citizen. Regardless if the application was submitted before the untimely passing of the U.S. citizen sponsor, the application for citizenship becomes invalid at the time death. As such, the INA clarifies that an applicant is ineligible to naturalize as the spouse of a U.S. citizen if their spouse passes away “any time prior to the applicant taking the Oath of Allegiance.” The only exception applies to certain widows or widowers of U.S. citizens who passed away during active-duty status in the U.S. armed forces.
On September 11, 2018, the United States Customs and Immigration Service will adopt new guidelines for the issuance of Request for Evidence (RFE) and Notice of Intent to Deny (NOID). Through no change to the laws of legal immigration, these new guidelines present one of the greatest threats to legal immigration in recent history.
Overview of Changes
In a series of policy memorandums, USCIS gave notice of new guidance for adjudicating officers. This guidance allows adjudicators to deny a request for immigration benefits without issuing an RFE or NOID. Previously, USCIS required adjudicators to send notice to applicants who provided insufficient evidence for an application or petition (RFE & NOID). Without a barrier to outright denial, those applying for immigration benefits can now receive denials if adjudicators determine that there is insufficient evidence.
Who is at Risk?
All applicants, from applications for naturalization to applications filed under the Violence Against Women Act (VAWA), are at risk under these new guidelines. After September 11th, applicants will be at risk of outright denial of their application or petition. With full discretionary power, USCIS adjudicators will be unforgiving of even small errors in applications. Therefore, if a naturalization application is missing a single document of evidence, a USCIS adjudicator can now deny the application without sending a notice for additional information or allowing the applicant to provide an explanation for the missing evidence.
Impact of Denial
If an applicant is denied benefits, then the petitioner or applicant will have to resubmit their application. Meaning, each applicant must repay all immigration fees regardless if their current employment visa was compromised by the denial. However, this is the best case scenario considering further USCIS changes regarding Notices to Appear (NTA). Under this regulation, some applicants who receive outward denials will be required to appear before immigration court to face removal proceedings. The devastating impact of these policies will impact families and highly skilled professionals alike. As September 11thapproaches, all applicants for immigration benefits must be extremely thorough in their applications. If you require assistance with any of your applications, please feel free to schedule a consultation.
As previously reported, the United States Customs and Immigration Service (USCIS) and Department of Justice (DOJ) started a collaborative effort to find cases of fraud or misrepresentation in applications for naturalization. Already, this joint effort succeeded in denaturalizing several citizens who misrepresented themselves on their applications. Recently, naturalized citizens, who did not misrepresent themselves on their naturalization application but later were convicted of a crime, have been denaturalized on the grounds of citizenship fraud. Although these citizens were not charged of a crime at the time of their application, the DOJ has begun to pursue fraud charges against citizens who are charged of a crime afterthey applied and received citizenship. In Florida, a Miami resident of nearly thirty years, Nora Borgono, received a notice from DOJ indicating intent to denaturalize following a guilty charge that occurred after she became a citizen.
Grounds for Denaturalization
In the case of Borgono, the DOJ claims the 63-year old grandmother “concealed and affirmatively misrepresented [her] criminal conduct” during her naturalization proceedings. While Borgono was a permanent resident, she worked for a gentleman who was responsible for $24 million dollars’ worth of fraudulent loan transactions. Borgono successfully applied for citizenship before the FBI began to investigate the fraudulent transactions. Later, Borgono cooperated with FBI agents to end the fraudulent activities and received a plea deal which resulted in one year of house arrest, five years of probation, and a $5,000 fine. Two years after the end of her probationary period, Borgono received a letter of civil denaturalization complaints from the DOJ. According to the DOJ investigators, Borgono is eligible for denaturalization because she concealed criminal activity in her citizenship application, regardless if she was charged after she gained citizenship.
New Initiative from DOJ
In a statement, the DOJ made clear: “Criminals that seek citizenship in the United States and knowingly hide their criminal history have no right to keep their citizenship.” In the application for naturalization, a question states “Have you EVERcommitted, assisted in committing, or attempted to commit, a crime or offense for which you wereNOT arrested?” If a naturalized citizen commits a crime prior to receiving citizenship (regardless of conviction) then that individual is at risk for denaturalization. However, if a citizen commits a crime after they have received citizenship, they are not at risk for denaturalization. Citizens who may have received charges that extend into a period of time before gaining citizenship may now be at risk of denaturalization as the DOJ has a renewed interest in reviewing cases of suspect citizenship fraud.
In most cases, the United States Customs and Immigration Service (USCIS) requires only non-U.S. citizens to report a change of address. However, if you are a U.S. citizen serving as a sponsor for a non-U.S. citizen, you may have to submit a Form I-865 to update your most recent address.
If you are a foreign national who is in the United states for a period of more than 30 days, or who is not an official government representative or diplomat for your country, you must report any change to your address within 10 days. Non-U.S. citizens can change their address online through an electronic Form AR-11. There, individuals with open or recently approved applications and petitions can amend their applications at the same time with the online change of address system. Although all non-U.S. citizens may file their Form AR-11 through the mail, the following must submit address changes through mail, not through the online portal nor through phone: Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant filed as VAWA self-petitioner; Form I-914, Application for T Nonimmigrant Status (“T visa”); Form I-918, Petition for U Nonimmigrant Status (“U visa”); Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse; and Form I-485, Application to Adjust status as an abused spouse under the Cuban Adjustment Act. Willful failure to notify USCIS of a change of address will result in a misdemeanor charge and could result in deportation proceedings. U.S. citizens, however, must file a separate notice of address change if they are a sponsor for a non-U.S. citizen.
If you are a sponsor for a non-citizen i.e. if any time in the past you have completed Form I-864, you will need to complete a Form I-865, Sponsor’s Notice of Change of Address, if your address changes while the sponsorship agreement is still in place. Sponsors, who are citizens of the United States, have up to 30 days to submit a signed Form I-865 to USCIS following the change in permanent address. Each sponsor must submit a separate Form I-865, regardless if they share the same address. In many cases, sponsors must submit multiple notices for each relocation while the sponsorship agreement remains in force, which can span several years. The sponsor will maintain an obligation to report a change of address until the sponsorship agreement is no longer in place (e.g. the sponsored immigrant becomes a U.S. citizen or the application is abandoned or void). Failure to report an address change may result in fines ranging from $250 to over $5,000. Upon submitting the Form I-865, sponsors may receive further correspondence from USCIS for further documentation confirming the change of address.
In the last couple of weeks, the buzz surrounding recent memos released from the United States Customs and Immigration Service (USCIS) have left many on edge. In such a short period of time, USCIS has made historic levels of change to immigration law. Now, with talk of NTAs, RFEs, and NOIDs those affected by recent changes may be confused and left behind as news continues to progress. In this article, we break down the potential consequences of a Notice to Appear, or NTA, and how USCIS’s new memo endowing all adjudicating officers with the power to freely issue NTAs impacts foreign workers who are legally in the United States.
What is a Notice to Appear (NTA)?
Recently, much of national debate has centered around one form of deportation: expedited removal. Such as in the case of family separation seen in the news, undocumented foreign nationals within 100 miles of the United States Border undergo removal proceedings without a hearing before an immigration judge. Unlike expedited removal, the issuance of an NTA is the first step of a longer, more judicial deportation process. If a foreign national is found to be removable from the United States, an official federal charging document is issued in the form of an NTA. The NTA is a formal notification document stating the beginning of formal federal court proceedings. Individuals who receive an NTA must appear before an immigration judge and have the opportunity to defend their eligibility for relief from deportation, either individually or through representation through an attorney. Following the issuance of the NTA, the appearance before the immigration judge serves as an opportunity for foreign nationals to argue why they should be allowed to remain in the United States. However, failure to persuade a judge results in an order of removal and, at minimum, bans a foreign national from re-entering the United states for five years. The individual is faced with the same consequences if he or she leaved the U.S. voluntarily (self-deportation) rather than attend the court hearing. To save on court fees and possible further penalties, many opt to voluntary leave the United States upon receiving a NTA by requesting voluntary departure through the Department of Homeland Security.
Impact of USCIS Memo
As previously reported, the June memo grants USCIS officials the ability to issue NTAs without referring cases to ICE for further investigation. Soon, a foreign national working legally in the United States is at risk of receiving an NTA, and consequently at risk of deportation, if USCIS denies their application. With issuance of NTAs on the rise, there could be a record level of deportations.
In the past few weeks, two memorandum out of the United States Customs and Immigration Service (USCIS) have upturned years of immigration procedures. In the first memo, USCIS announced a new direction to encourage USCIS officers to freely issue notices to appear (NTA), notably for cases in which a visa application is denied. In a separate memo, USCIS announced new measures to cut down on visa processing time, however with unorthodox methods. Starting September 11th, USCIS officers may automatically deny applications that have insufficient evidence without issuing a notice of intent to deny (NOID) or request for evidence (RFE). Together, these two memos mark what could be the biggest threat to legal immigration yet.
Threats to H-1B
As previously reported, increased scrutiny against H-1B visa applications spurred an unprecedented upsurge in RFE notices in 2017. Although RFE were not uncommon for H-1B applications, given the bulk of information required to prove both the qualifications of the employee and the employers need for the specialty hire, the upsurge was far from usual. With so many H-1B visas pending, there was an enormous backlog of H-1B applications. The memo release on July 13thwould cut down on issuance of RFEs and would instead automatically deny insufficient H-1B applications. Although the recent USCIS change aims to cut down on backlogs in visa application processing, the memo may spell a wave of unprecedented deportations.
Separately, the two above mentioned USCIS memos present only extreme inconveniences to visa applicants and employers. Together, these policies spell trouble for H-1B visa holders and all foreign nationals wishing to live and work in the United States. Under the new policies, H-1B applications, which are often delayed due to RFE’s, could be automatically denied for insufficient evidence, without notice to the employee or employer. Following denial from USCIS, even in circumstances in which the applications fell short due to clerical errors, these employees could receive a NTA and face deportation. Although extreme, these policies would allow a legal non-immigrant worker living in the United States awaiting their visa renewal to go from working in the United States to being sentenced to immediately depart the country.
Although the memo aimed to reduce the number of NOIDs and RFEs sent to visa applicants has yet to go into effect, the impact of the recent changes to USCIS procedures is likely to affect thousands. Combined, these two memos may spell catastrophe for legal immigration in the United States.
For many years, USCIS adjudicators have provided applicants & petitioners with the benefit of the doubt. As such, applications, petitions, and requests were not outright denied if a USCIS officer noticed an absence of evidence or if evidence was insufficient for eligibility. For years, USCIS officers instead issued requests for evidence notices (RFE) or a Notice of Intent to Deny (NOID) to those who submitted insufficient applications. During this time, USCIS officers denied only applications in which there was “no possibility” of acceptance. However, a recent memo from USCIS may bring about unfortunate changes in the ways that officers process visa applications.
Early this month, USCIS released a policy memorandum providing adjudicators with greater autonomy in denying a visa application, petition, or request. The five-year procedural commitment to providing applicants with notice of challenges to their applications will now yield to a much harsher policy. USCIS officers may now deny requests for immigration benefits if they determine that there is insufficient evidence to grant the application. Thus, an application will be solely tied to an adjudicator’s interpretation of “insufficient” starting September 11th. For example, if a waiver is submitted with little supporting evidence, the application will be denied without a RFE or NOID. Additionally, applications which require supplementary material, both official and other, that establish the eligibility of an application will be denied if the required information is not submitted with the application (e.g. The affidavit of support does not accompany the application for permanent residence). Excluded from applications impacted by the memo are those submitted under the Deferred Action for Childhood Arrivals (DACA) program.
In a statement, the Director for USCIS praised the memo as an end to “frivolous filings and skeletal applications used to game the system.” Director Cissna hopes that, by allowing USCIS officers to eliminate frivolous and incomplete filings, the organization will be better equipped to quickly process legitimate applications. However, the memo removes the opportunity to mend legitimate mistakes made to applications. Although the procedural change does not go into effect for another two months, the decision is sure to impact many awaiting a decision from USCIS.