DHS Proposed Rule: New Changes to Public Charge Inadmissibility

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.

Major Changes

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.

Colleges Sue DHS Over Student Visas

The United States Citizenship and Immigration Service (USCIS) and the Department of Homeland Security (DHS) are being sued by several colleges over changes to administrative policies changes related to foreign students. In August this year, USCIS changed the method by which USCIS officers calculated unlawful presence accrued by students (J-1, F-1, and M-1). This left many students who had experienced a temporary lapse in status vulnerable to unlawful presence accrual. The plaintiffs claim that the new policy unfairly penalizes students “acting in good faith” with re-entry bans up to ten years.

Policy Change

After August 9thof this year, students on J-1, F-1, and M-1 visas became vulnerable for unlawful presence, an immigration status that if held for more than 180 days, results in a three year ban from the United States. The policy change made students accrue unlawful presence beginning:

  • On the day they no longer pursue a course of study or the authorized activity indicated by their visa, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any “authorized grace period;”
  • The day after their I-94 expires, if the F, J, or M nonimmigrant was admitted for a certain period; or
  • The day after either an immigration judge or Board of Immigration Appeals, orders them to be excluded, deported, or removed, regardless if the decision is appealed.

USCIS claims the changes were meant to hold students accountable for violating the terms of their visas. However, the plaintiffs in the lawsuit find the policy change to be unfair to students accused of status violations.

Lawsuit

The colleges serving as the complainants, Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College claim that the policy change affects both their students and the overall financial health of the higher education institutions. Currently in the District Court of Middle North Carolina, the lawsuit awaits response from DHS representatives.  A representative for Haverford College, stated in an interview that the policy irreparably disrupted [the] students’ educational plans, and Haverford has lost tuition as a result.” The plaintiffs aim to return unlawful presence accrual regulations to those predating the August 9thchange.

International Students on CPT & OPT Denied H-1B Visas

Under new guideline interpretations, many former international students have received denials for H-1B benefits from the United States Customs and Immigration Service (USCIS). According to some reports, F-1 students who have completed work in their field for more than 12 months while earning a degree and in the one-year period following graduation, may be ineligible for H-1B visa benefits. Unfortunately, many students at the end of their Optional Practical Training (OPT) have received denials for their applications to switch to an H-1B visa and must return to their home countries and seek H-1B benefits from their local consulate.

Curricular Practical Training & Optional Practical Training

While studying in the United States, international students have two unique opportunities to gain practical working experience in a career relevant to their field of study. During their program of study, students may complete a for-credit work experience in a field relevant to their major. This program, known as Curricular Practical Training (CPT), allows students to work for up to 12 months while completing their degree. OPT is similar to CPT, but occurs after an F-1 has received their degree, and lasts up to 12 months unless the student receives an extension through STEM OPT. Some students complete both CPT and OPT experiences during their stay as an international student. Now, USCIS has determined that the total duration of work performed for practical training cannot exceed 12 months.

H-1B Denials

For years, students have been able to complete both CPT and OPT with no issues. However, under new practice, students with more than 12 months working experience due to CPT and OPT will be interpreted as having failed to maintain valid F-1 status, and therefore ineligible to switch from an F-1 to an H-1B visa. According to reports, students are continuing to receive approval for OPT spanning for 12 months, regardless if they have completed CPT during their program of study. Therefore, USCIS sets many international students up for denial from H-1B benefits and potential bars for additional visas. Although USCIS does not deny students from completing a period of practical training longer than 12 months, the accumulation of CPT and OPT work experience longer than 12 months will cause students to violate their F-1 status.

We strongly recommend F-1 students to be proactive about their maintenance of status by seeking legal advice in case they do not fully comprehend the law. It may not be enough for them to rely on the DSO’s advice or the USCIS’ approval of OPT following the CPT.

Digital Border Search Under Federal Scrutiny: CBP

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.

Border Doctrine

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.

CBP Issues Travel Reminder: Departure Date

This year, the United States Customs and Border Protection (CBP) launched a new electronic reminder system for foreign national travelers. The new emailing system sends reminders to travelers about the period of time remaining for their particular travel visa. Not only does the email reminder system help travelers keep track of their period of stay, the CBP email reminder will provide notifications for travelers who have overstayed their period of admission.

Email Notification

Within 10 days of the end of a traveler’s admissions period, travelers may receive email notifications from CBP counting down the remaining days left of their stay in the United States. If a traveler overstays, they will continue to receive notice of an overstay violation. In addition to email notifications, travelers may refer to the I-94 website to check their compliance with period of stay limitations. Via the website, travelers may click the “view compliance” tab and enter their personal information to receive updates on their remaining period of stay.

Phishing Warning

Phishing, or email scams, are forms of electronic correspondence that attempt to exploit online users through false email correspondence. Often, travelers receive fake emails from users pretending to represent the federal government of the United States. These emails may falsely notify travelers of urgent notices to their period of stay. Never provide your personal information to an online source claiming to represent the CBP unless you are sure the notification is legitimate. Email notifications should come only from travelerscompliance@cbp.dhs.gov. As fraudulent emails are quite common, it is always advised to check the email address of any notification sent by an official agency.

Stages of Notification

CBP will gradually launch the new travelers notification system. Certain Visa Waiver Program (VWP) recipients are the first to receive email notice from CBP, and most classes of admission will soon be added to the notice system.

OPT Extensions for STEM: New Worksite Changes

On August 17th, USCIS updated guidelines for OPT STEM extensions. The student visa program allows international students the opportunity to gain practical training. For F-1 student’s with degrees in science, technology, engineering, and math, extensions are available to receive temporary employment privileges by an additional duration of 24 months. To qualify, applicants must have a bachelor’s degree in a STEM field as well as other requirements. The program allows students to receive more hands-on experience with employers in a field relevant to the student’s educational background.

Several months ago, however, USCIS made changes to online regulatory guidelines. These changes made clear that students were expected to work only at the worksite related to their STEM OPT employer. Therefore, the previous guidelines prohibited anythird-party or other off-site placement. Thus, ICE worksite visits would be conducted only at the primary address of employment listed on the student’s application. For many, this change limited students from receiving diversified experiences at different worksite related to their employment.

 USCIS Renews Flexibility

The most recent changes to the OPT STEM website retract previous guidelines and offer students greater options and flexibility for training experience. According to USCIS, the Department of Homeland Security (DHS) clarified that STEM OPT students once more have the ability to “engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met.” USCIS reminds beneficiaries of STEM OPT that a “bona fide” employee-employer relationship must be maintained if a student receives training outside of the employer’s principal location. DHS will review each case to ensure that employers listed on the Training Plan maintain the required employee-employer relationship. Students should ensure that a third-party placement or offsite placement does not compromise their employee-employer relationship with their documented supervisor.

Major USCIS Changes: Update on RFE & NOID

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.

Change of Address: Non-Citizens & Citizens

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.

Non-U.S. Citizens

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.

U.S. Citizens

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.

H-1B in FY 17: Warnings for Future Applicants

These last several months featured some of the most radical changes to legal immigration in recent history. American businesses interested in hiring foreign nationals now struggle to stay updated on new procedures and practices coming out of USCIS, especially regarding the approval of highly skilled employees. Many employees capable of filling highly skilled, high demand positions are now denied H-1B benefits under new processing procedures. Many companies are shocked as many potential employees considered a shoo-in for H-1B benefits in years past now face increased requests for evidence (RFE) or straight out denials. The current presidential administration’s distaste for legal immigration is not only evident in recent rhetoric, but also in the numbers. Fiscal Year 2017 (FY 17) saw a drastic increase in both RFEs and denials following the inauguration of the current president.

The Numbers

According to the National Foundation for American Policy (NFAP), FY 2017 saw the most drastic changes in legal immigration between the 3rdand 4thquarter, coinciding with the first several months of the Trump administration. In fact, between the 3rdquarter and 4thquarter of FY 2017, RFEs for H-1B petitions increased by over 120%, a jump from 28,711 in quarter three and 63,184 in quarter four. This increased scrutiny from USCIS adjudicators was far from indiscriminate; nearly three out of four H-1B applicants from India received a request for evidence in the 4thquarter. Comparably, applicants from other countries received RFEs at a rate of 61% in the 4thquarter of FY 2017. Foreign nationals from India were further disadvantaged in the 4thquarter with a 42% increase in the rate of H-1B petitions deniedfor compared to professionals denied in the 3rdquarter of 2017. In quarter three, only about one out of six applicants from India were denied H-1B benefits compared to nearly one out of four in quarter four (16.6% and 23.6% respectively). Other countries experienced a similar decline, with denial rising from 14% to 19.6% from the 3rdto 4thquarter. In conjunction with recent changes to notice of denials and requests for evidence, the upward trend of both H-1B RFEs and denials may result in an unprecedented rate people leaving the country.

What is a Notice to Appear? (NTA): New Memos Hit Legal Immigration

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.