Court Blocks USCIS Fee Increases

On the 29th of September, 2020, a federal judge in California granted a motion for the preliminary injunction of the U.S. Citizenship and Immigration Services’ (USCIS) updated fee schedule. This fee schedule was set to go into effect on October 2nd, 2020, and would have increased filing fees for certain immigration and naturalization benefit requests. International studies, new U.S. citizens, and businesses would have been impacted.

DHS has originally announced the final rule on July 31st, 2020, which included a weighted average fee increase of 20 percent. Changes to filing fees included a new $50.00 fee for asylum seekers and an 80% increase for naturalization services. A $10 registration fee requirement was added for the filing of H-1B petitions on behalf of cap-subject aliens. I-765 Application for Employment Authorization fees would have increased by $140 and I-485 Application to Register Permanent Residence fees would have reduced by $10 to amount to $1,130. USCIS had said that these price increases were necessary to support the agency as it suffered from a budget shortfall. Many immigration activists and human rights organizations denounced the rule soon after it was issued, criticizing that the rule pushed lower-income individuals outside of the U.S. immigration system.

Northern California U.S. District Judge Jeffrey S. White issued the nationwide injunction yesterday, banning Department of Homeland Security (DHS) and USCIS officials from implementing the July 31st Final Rule. Co-founder of Boundless Immigration Doug Rand explained that as long as this preliminary injunction is in place, USCIS will not be able to raise its fees as it had planned. It is likely that the U.S. government will appeal the Ninth Circuit court to obtain a stay, says Doug Rand, although it is unclear as to how long this will take.

In his ruling of Immigrant Legal Resource Center, et al. v. Chad F. Wolf, et al., Judge White wrote, “Plaintiffs persuasively argue that the public interest would be served by enjoining or staying the effective date of the Final Rule because if it takes effect, it will prevent vulnerable and low-income applicants from applying for immigration benefits, will block access to humanitarian protections, and will expose those populations to further danger.”

 

Judge White ruled that the case’s plaintiffs, composed of eight non-profit organizations that serve immigrants, showed that:

  1. DHS was not serving under the Homeland Security Act;
  2. The final rule violates procedural and substantive requirements of the Administrative Procedure Act (APA), which included, “failing to disclose data, relying on unexplained data and ignoring data on the record,” according to the final rule. DHS had argued that individuals would apply for immigration services no matter how expensive USCIS filing fees are, which contradicted the statements that appeared during DHS’s comment period;
  3. The final rule was arbitrary and capricious, as it failed to consider the negative impacts on low-income immigrant populations;
  4. The government did not provide reasoned justification for the policy shift in which fee waivers were eliminated and fees were increased; and
  5. By implementing a fee for asylum seekers to deter frivolous applications, USCIS relied on factors that Congress had not intended for DHS to consider. This, again, violates the APA.

Judge White rejected the Trump Administration’s request for a brief administrative stay, writing that, “A stay beyond October 2, 2020, would allow the Final Rule to go into effect, thereby altering the status quo.” Note that this ruling temporarily halts the fee increases until the merits of the case are decided as a whole. Therefore, there remains the possibility that USCIS’s filing fees will go up in the future.

 

On the 25th of August, the United States Citizenship and Immigration Services (USCIS) announced that it would cancel the scheduled furlough of about 13,400 of its employees. USCIS justifies this decision by citing “unprecedented spending cuts” as well as a “steady increase in daily incoming revenue and receipts.” The agency expects to maintain operations through the end of the 2020 fiscal year. In a recently published announcement, USCIS notes that aggressive spending reduction measures will impact all agency operations and agency contracts.

The USCIS deputy director for policy, Joseph Edlow, said in a statement that, “averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs.” The deputy director emphasized that congressional intervention is still crucial to sustain the agency through the 2021 fiscal year, particularly since USCIS averted the furloughs scheduled for August 30th. This furlough was delayed numerous times before the final cancellation.

These furloughs would have drastically halted the immigration system. Not only would they have caused a standstill to essential services, but they would also have adversely impact millions of legal immigrants and U.S. citizens. This would be a detriment to the already-stalled U.S. economy. As USCIS has received fewer immigration applications filed over the past few months, USCIS’s revenue has also decreased. This budgetary restraint has led to a pause in the printing of 50,000 green cards and 75,000 worker permits.

Previously, the slow-moving pace of Congress’ plans about the next COVID-19 relief bill discouraged USCIS, as this funding has yet to be obtained by the federal agency. Notably, USCIS originally requested $1.2 billion in funding from Congress.

Fortunately, this past weekend, the House of Representatives unanimously introduced the Emergency Stopgap USCIS Stabilization Act, which would have temporarily kept USCIS afloat, although this legislation has yet to be passed by the U.S. Senate. This provides some hope that USCIS has caught Congress’ attention, and that subsequent funding may be allocated to USCIS with future bills.

 

On July 31st, 2020, DHS announced a final rule regarding the U.S. Citizenship and Immigration Services (USCIS) fee schedule, which would dramatically increase USCIS filing fees for certain immigration and naturalization benefit requests. Overall, USCIS fees are being increased by a weighted average of 20 percent, according to USCIS.

The changes to filing fees include a first-ever $50.00 fee for asylum seekers and an 80% increase for naturalization services, which would raise the cost of online naturalization applications from $640 to $1,160. In addition, the changes announced include a $10 fee for the registration requirement for petitioners filing H-1B petitions on behalf of cap-subject aliens. I-765 Application for Employment Authorization fees will be increased by $140 (34% increase of the original $410 fee) and I-485 Application to Register Permanent Residence fees have been reduced by $10 to amount to $1,130.

A detailed fee schedule, noting old fees and new fees for each application type, can be found here (or on uscis.gov/forms) on the USCIS website. On its website, USCIS specified that all filings postmarked December 23rd, 2016 or later must include the new fees or they will be rejected.

Effective on October 2nd, 2020, this new rule will support payroll, technology, and operations of USCIS. According to the agency, current fees would leave USCIS underfunded by around $1 billion per year. Immigration fees have risen to an extraordinary level in recent decades in the United States. For instance, in the 1990s, naturalization application fees were under $100.

The addition of a new asylum fee is important, as the U.S. joins Iran, Fiji, and Australia as countries that impose fees on asylum-seekers. Many immigration attorneys and activists have decried the added financial burden, as the right to seek asylum in the U.S. should not be conditioned on the ability to pay a fee, no matter what amount.

Human Rights First, a nonpartisan 501(c)(3) international human rights organization, denounced the rule soon after it was issued. The organization’s Deputy Legal Director, Anwen Hughes, stated: “Asylum seekers typically arrive in the United States with very limited resources that quickly dwindle. For some who are detained upon arrival, the total amount of money they have available to them by the time they are filing for asylum can be less than this application fee.”

While these fee changes have been added, the proposed $275 renewal fee for DACA recipients has been removed so that DACA fees for employment authorization and biometric services will remain at 2017-levels.  

USCIS deputy director for policy, Joseph Edlow, has stated that “USCIS is required to examine incoming and outgoing expenditures and make adjustments based on that analysis.” He added, “These overdue adjustments in fees are necessary to efficiently and fairly administer our nation’s lawful immigration system, secure the homeland and protect Americans.” In a Facebook post, USCIS announced that these fees are reviewed every other year by law.

Note that USCIS, experiencing the economic consequences of the coronavirus pandemic, risks facing a revenue shortfall for the calendar year, despite having a budget surplus for the fiscal year. This will likely contribute to over 13,000 furloughs if USCIS does not receive a $1.2 billion emergency fund from Congress. USCIS is a peculiar federal agency because, rather than coming from the government, it receives its funds mainly from fee collection. Because of the COVID-19 pandemic and Trump’s recent immigration restriction-oriented policies, the agency has received fewer applications, contributing to its revenue shortfall.

According to the American Immigration Lawyers Association, such furloughs will halt U.S. immigration, which will hurt families, businesses, educational institutions, medical facilities, and churches. Additionally, if USCIS is close to being shut down, immigrants in the process of naturalization will be unable to complete the process in time to register to vote, DACA recipients will not be able to renew their benefits, asylum applicants will face significant delays to their cases, and businesses will be unable to hire and retain non-citizen employees. The Migration Policy Institute concluded that for every month that the USCIS furlough lasts, 75,000 applications will not be processed. Fortunately, USCIS has agreed to move the previously-set date for these furloughs from August 3rd to August 30th.

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Last evening, the 2nd Circuit Court of Appeals limited an order that blocked the application of Trump’s Public Charge Grounds Final Rule during the duration of the COVID-19 pandemic. The federal appellate court concluded that the Department of Homeland and Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) may implement the public charge policy in every state but New York, Connecticut, and Vermont. These three states had previously sued the Trump administration over the public charge rule.

Since July 29th, U.S. District Court for the Southern District of New York issued an injunction of the Trump administration’s public charge rule, meaning that USCIS and DHS had temporarily reverted to the 1999 Interim Field guidance established before Trump’s Public Charge Grounds Final Rule. The N.Y. district court reasoned that Trump’s rule had deterred immigrants from seeking testing and treatment for COVID-19, as they feared such acts would negatively impact their immigration cases.

The federal appellate court’s most recent decision, briefly detailed in a one-paragraph order written by U.S. Circuit Judge Peter Hall, will revive Trump’s “wealth test” for immigrants, a victory for the Trump administration as this is one of the most extensive restrictions on legal immigration. Under this test, DHS may negatively consider immigrants’ past usage of public benefits programs, such as food stamps and housing subsidies, as well as health and education level, to determine whether they will rely on government assistance. Such a reliance would adversely impact green card applications.

In the short order, the 2nd Circuit Court of Appeals – a higher level court than the U.S. district court that issued the primary injunction – explained that the public charge injunction is no longer nationwide and only applies to residents of New York, Connecticut, and Vermont.

Since the nationwide injunction was announced, USCIS instructed applicants to hold off from filing Form I-944 Declaration of Self-Sufficiency for those filing on or after July 29th, 2020. USCIS has yet to publish further instructions for applicants who have already filed without the Form I-944, and USCIS has yet to update its website with the new ruling. However, because USCIS still has these instructions from July 29th on its website despite having adopted a new ruling, it may be useful to save a copy of this, along with the date, if an applicant has already filed without Form I-944.

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On July 17th, a federal judge ruled that the Trump administration must accept new applications for DACA, a program started by former President Obama to protect undocumented immigrants who came to the U.S. as children. A month ago, the Trump administration attempted to completely end the DACA program, but this order was blocked by the U.S. Supreme Court on the basis that the administration did not provide sufficient justification for ending the DACA program.

The DACA program applies to undocumented immigrants who were younger than 16 years old when they came to the country and who were 30 years old or younger as of June 2012. Under the program, immigrants would receive a renewable, two-year work permit. USCIS has been renewing the DACA status for about 650,000 immigrants, but rejecting all new applicants since Trump took office.

In his 4-page order, U.S. District Court Judge Paul Grimm announced that the DACA program will return to its “pre-September 5, 2017 status,” which refers to the pre-Trump era when any eligible immigrant had the opportunity to apply to the program.

Judge Paul Grimm wrote, “Defendants [including the Department of Homeland Security] and their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, are ENJOINED from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA.”

It is uncertain whether many will apply for the DACA program, as this requires releasing identifying information to officials who are serving an administration that has been increasingly hostile towards immigrants. Immigration and Customs Enforcement (ICE) of the Department of Homeland and Security (DHS) is currently reviewing the ruling. Amidst uncertainty, president and CEO of the National Immigration Forum, Ali Noorani, noted: “Ignoring this decision puts the administration directly at odds with the rule of law, and leaves DREAMers steeped in even more uncertainty about their futures.”

From the Supreme Court down, the courts have supported the decision for the DACA program to remain and to open for new applicants. The decision to restore DACA to a pre-Trump era will allow around 300,000 young and eligible immigrants to apply.

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Can I still sponsor my Spouse, Parent, or Child for a Green Card during Covid-19?

As COVID-19 disrupts immigration services and proceedings in the U.S., many citizens wonder if they can still petition their relatives. Yes!—if you are a U.S. citizen of at least 21 years of age, you can still sponsor your spouse, parent, or child for a Green Card during the Covid-19 pandemic. 

Steps to take to sponsor an alien immediate relative

U.S. Green Cards allow foreign nationals to permanently reside and work in the United States.

While all USCIS in-person activities, including in-person interviews, have been temporarily suspended due to the coronavirus pandemic until June 4th, measures U.S. citizens must take to sponsor a relative for a Green Card are not be impacted by the USCIS office closures. While green card applicants and petitioners can wait until the response to COVID-19 is over, this is certainly not necessary and does not mean that the processing time will be any quicker.

First, the petitioner (the U.S. citizen sponsoring the foreign immediate relative) must file Form I-130, Petition for Alien Relative. This form establishes the family relationship between the petitioner(s) and the applicant relative (the beneficiary).

Once Form I-130 is approved, an immigrant visa will be immediately available for the beneficiary. If the immediate relative is already in the United States, he or she can submit an Adjustment of Status applications to obtain permanent legal residency if he or she successfully passed an interview with a local USCIS field office. Note that these USCIS interviews thus far have been canceled and rescheduled. USCIS offices will send notices with instructions to applicants and petitioners with scheduled interview appointments impacted by this closure. Once normal operations are able to be resumed, they will automatically be rescheduled. Through this process, the beneficiary will not need to return to his or her home country.

If the immediate relative is abroad, the beneficiary will have an immigrant visa interview overseas at a U.S. Department of State consulate or embassy through Consular Processing. Again, if a beneficiary’s home country is impacted by COVID-19 closures, he or she must wait for their local interviews to be rescheduled.

While some marriage-based green card applicants have also been approved without interviews in the previous weeks, it is most likely that the interview process will not be waived, as it is important to screen cases for fraud.

Sometimes, a petitioner can file the I-130 with an application for permanent residence (Form I-485, Application to Register Permanent Residence or Adjust Status) if they are sponsoring a spouse, an immediate relative parent, or an unmarried child under 21 years of age. After the I-485 is filed, beneficiaries may also apply for an I-765 work permit or a I-131 travel permit.

Note that non-immediate family relationships that qualify for sponsorship may also include Unmarried sons and daughters of U.S. citizens, spouses and children (F1), and Unmarried sons and daughters of permanent residents, Spouses and Children of Permanent Residents (F2A), Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents (F2B), Married Sons and Daughters of U.S. Citizens (F3), and Brothers and Sisters of Adult U.S. Citizens (F4).

In these family cases, an immigrant visa will not be immediately available upon approval of form I-130, and depends upon the Visa Bulletin issued monthly by the Department of State. The Visa Bulletin indicates which green card applications can move forward based upon when Form I-130 was originally filed. The bulletin also offers an estimate for how long it will take to obtain a green card, based on how quickly “line” is moving at that time.

General Documents Needed for Sponsorship

The following documents are needed for a U.S. citizen to foreign national sponsor a spouse, child, or parent:

  • Proof of U.S. Citizenship (Certificate of Naturalization, the Biographic page of an American passport, or a copy of a green card).
  • Birth Certificate,
  • I-94 arrival-departure record (this can now be obtained online)
  • A marriage certificate for marriage-based green cards

Financial Sponsorship 

Petitioners who have filed the form I-130 must be financial sponsors to the beneficiary, meaning that they accept financial responsibility for the beneficiary. This also means that the petitioner must reimburse, or be reimbursed by, the government if the green card holder applies for certain public benefits. For the petitioner to qualify as a financial sponsor, he or she must submit a Form I-864 and list: the past three years of income, current income, proof of tax returns from the previous 3 years, W-2 statements, current pay-stubs, and an employment verification letter. The sponsor’s household size will be taken into account in light of his or her income, to ensure that they earn above the minimum income requirements.

Impacts of Covid-19 on Public Charge Rule for Green Cards

The Public Charge Rule continues to apply for Green Card applications. This rule has discouraged green card applicants from accessing healthcare in the past, but USCIS emphasizes that treatment or preventive services for the COVID-19 will not negatively affect any alien as part of a future Public Charge analysis. The USCIS stresses that it encourages all aliens with symptoms that resemble COVID-19’s to seek necessary medical attention. Here is a list of government benefits that are considered during the Public Charge assessment.

Important things to keep in mind for Green Card applications during COVID-19…

  • While many facilities are still closed, the State Department has this tool to crop a photograph of yourself that will satisfy the passport photo requirement. There are many websites online (such as this one) that also mail your photographs to your home address.
  • While normally, work and travel permits cannot be processed without a biometrics notice, USCIS has been reusing biometrics (i.e. the required submission of fingerprints and a digital photo) collected during previous applications.
  • USCIS has announced that it will temporarily accept filings with electronically-reproduced copies of original signatures instead of normally required “wet” signatures for all benefit forms and documents dated March 21 and beyond from both attorneys and applicants. So long as an original document contains an original handwritten signature, it can be scanned, faxed, photocopied or similarly reproduced.

Impact of Travel Proclamations on Immediate Relative Applicants Abroad? 

Keep in mind President Trump’s four COVID-19 Travel Proclamations (China Travel Proclamation; Iran Travel Proclamation; European Schengen Area Proclamation; Ireland and United Kingdom Proclamation). However, these do not apply to spouses of U.S. citizens, parents or legal guardians of U.S. citizens, and the children of U.S. citizens.

 

Immigration Lawyer Portland

USCIS Relaxed Immigration Policies during Covid-19 Coronavirus Pandemic

On March 18th, 2020, U.S. Citizenship and Immigration Services temporarily suspended in-person services in h­opes to slow the spread of COVID-19. USCIS plans to reopen offices on or after June 4th, 2020, unless there is an extension in public closures. USCIS continues to process green cards, work permits, asylum applications, and other paper-based requests. To adapt to new limited circumstances informed by COVID-19, USCIS has recently been flexible in certain immigration policies in order to avoid service delays and disruptions for the benefit of applicants and petitioners. Listed below are new relaxed policies and immigration flexibilities implemented by USCIS to accommodate for constraints caused by the pandemic.

Waiving Green Card Interviews
While family and employment-based green card applicants typically attend in-person interviews at USCIS field offices before their green cards are approved, these interviews have been canceled until at least June 3rd. However, there are wide reports that USCIS has relaxed this green card interview requirement for employment-based green card applicants during this pandemic as a means of avoiding dense delays in the future.

Note that no formal policy has been released by USCIS confirming that the interview requirement will be waived, but this appears to have been occurring as many employment-based green card applicants with canceled interviews have had their green card statuses approved. Because no formal statement has been released yet by USCIS, as of May 7th, there is no guarantee that this will be the case for all employment-based green card applicants, however, it seems that as long as all other documentation is present, USCIS will adjudicate permanent residence applications.

While some marriage-based green card applicants have also been approved without interviews, it is likely that the interview process will not be waived, because of the importance in screening cases for fraud. Note that this waiving of appointments does not apply to citizenship applications.

Reusing Previous Biometrics 

For extensions of benefits like work permits, USCIS will reuse biometrics (that is, required submission of fingerprints and a digital photo) collected during previous applications. Often, however, USCIS will issue original work permits without any new collection of biometrics, reusing previously-collected biometrics collected on other occasions, such as upon entry to the United States.

EAD Renewal Application Flexibilities 

In resonance with other biometric-related measures taken by USCIS to reduce delays in adjudication, USCIS announced flexibility for Employment Authorization Documents (EAD) renewal applications by reusing prior biometrics for renewal applicants.

Relaxed “Wet” Signature Requirement  

USCIS has announced that it will temporarily accept filings with electronically-reproduced copies of original signatures instead of normally required “wet” signatures for all benefit forms and documents dated March 21 and beyond from both attorneys and applicants. USCIS has stated that it is safer for clients and attorneys to avoid in-person meetings. So long as an original document contains an original handwritten signature, it can be scanned, faxed, photocopied or similarly reproduced. USCIS may request copies of such original documents in the future, so employers are advised to retain copies. Note that USCIS does not allow any electronic signatures on its forms or petitions, so the petitioner or applicant must have access to a printer and a scanner to reproduce a signed paper form for USCIS filing. USCIS forms are protected from alteration, so even if the petitioner or applicant attempts to do so, they cannot be electronically signed.

Extensions of Certain Deadlines

USCIS has also extended the time by which applicants are able to respond to an RFE, NOID, NOIR, and NOIT if the notice was issued between March 1st and May 1st by a period of 60 days following the date of issuance.

Flexibility in the Visa Waiver Program
In the midst of the COVID-19 pandemic, many foreign nationals who were in the U.S. have been stranded and unable to leave. Normally, most individuals can visit the U.S. for a 90-day period without a visa according to the Visa Waiver Program. However, many of these foreign national travelers in the U.S. have overstayed their 90-day stays due to flight cancellations and the recent Presidential Proclamations that restrict entry from the Schengen Area countries, the U.K, and Ireland. CBP and USCIS are assisting travelers to obtain a supplementary 30-day extension called “Satisfactory Departure.” These foreign national individuals may request this extension from the USCIS by contacting the USCIS Contact Center.

Otherwise, such foreign nationals may request “Satisfactory Departure” by contacting the Deferred Inspection unit of Customs and Border Protection (CBP) at the international airport where they entered the country or the international airport closest to their current location. These extension processes are crucial for visitors who have overstayed their 90-day periods, because an overstay of this period completely will prevent visitors from utilizing the Visa Waiver Program in the future.

Immigration is constantly in the news lately, and the USCIS is constantly making changes that will impact legal immigration, for better or for worse.

What USCIS Changes are Being Made in 2020?

There are a number of changes in the books for 2020, some of which are designed to slow immigration and others to streamline the process:

  1. An increase in the forms which can be filed online.
  2. The introduction of an electronic registration system for the H-1B lottery in April, which will likely increase the number of petitions and thus decrease the percentage accepted.
  3. The USCIS is also tightening the rules for L-1 visas (used by multinational companies doing internal transfers). One company has already said that their refusal rate varies from 80% to 90%.
  4. Fees are going to increase significantly for certain key procedures. For example, the cost of a naturalization application will go up from $640 to $1,170.
  5. The naturalization test is under review and will be updated..
  6. The rules for what constitutes a “public charge” have been tightened when it comes to obtaining a green card or immigrant visa.
  7. The rules have also for asylum seekers requesting work permits, including increasing the waiting period.

How Will These Changes Impact Legal Immigrants?

Most of these changes will be a net negative for legal immigrants. The across-the-board increase in fees, some of which are significant, is likely the biggest deal. (Even asylum applications now have a $50 fee). In some cases, a hardship waiver can be requested; an immigration lawyer can often assist with this, especially for naturalization fees.

The tightened rules on employment visas are definitely going to make it harder both for immigrants and for companies seeking to hire them.

One major concern is the changes to the rules for what constitutes a “public charge.” In the past, most non-monetary benefits were excluded. The new rule defines public charge as somebody who receives one or more public benefits for more than 12 months in a 36 month period, including SNAP, most forms of Medicaid, Section 8. However, no less than thirteen states are challenging the new rules in court and they’re currently on hold pending the outcome of those suits. Again, this is definitely an area in which an immigration lawyer can be useful, especially for people with disabilities.

Asylum seekers are also hit hard. In addition to the fee, the work permit changes appear to be intended to discourage asylum seekers: The waiting period will be increased, applicants who entered illegally before seeking asylum will be denied, the permit will end immediately if the asylum application is denied and the 30-day deadline to rule on permit applications will be removed.

However, the ability to file most immigration forms online will make things a lot easier for many immigrants, especially those filing from outside the country (where postage can be expensive and wait times long).

How do These Changes Impact our Country?

It’s hard to predict. While it is definitely the case that tighter rules on work-based visas may improve the chances of a U.S. citizen getting work, in most cases these visas are granted either to people who are already doing the job or people with specialist skills after a legitimate attempt has been made to find a candidate who does not need to be relocated.

The current administration’s limits on refugees and asylum seekers are making the United States, to be blunt, look bad overseas, whilst pleasing those who worry about the cost of taking them in.

Why Call Immigration Law Group?

If you are a legal immigrant or attempting to immigrate legally, then navigating the rules is only becoming more complex with these changes. An immigration lawyer can help you with everything from getting high fees waived to proving you are financially self-sufficient in dealing with complex situations involving family connections.

With Immigration Law Group you can feel confident that you have the help you need to navigate the complex waters of U.S. immigration. Contact us today for an initial consultation.

Immigration laws are constantly changing and evolving. And these changes are making it increasingly difficult for individuals to understand the immigration process and what steps they need to take in order to apply for particular Visa’s, Green Cards, and U.S. Citizenship.  These new immigration policies have also made it extremely crucial for individuals to stay up to date on these latest trends and policy adjustments, as they can have a significant impact on immigrants’ access to public assistance programs. One of these new immigration developments has been the implementation of the “public charge” rule. To further understand what this rule is and how it affects those applying for a Green Card, continue to read below or contact our team at Immigration Law Group. We understand how critical it is to interpret these new policies, and we are here to help you. Our Portland-based attorneys are up to date on all the latest immigration changes and have helped hundreds of individuals going through the immigration process. Whether you are looking for information on how to obtain your Adjustment of Status, discuss your different Visa options, or need some answers regarding the latest immigration legal changes, contact our office today for more information.

What is the “Public Charge” Rule, and How Does it Affect those Applying for Green Cards?

Under the new “public charge” rule, green card applicants have to show that they will not become a public charge, which means that they won’t need any federal assistance to live in the United States. This rule includes those that are dependent on the government for their subsistence, those that use cash assistance programs, and those that need long-term care at the government’s expense.  Under this new provision, individuals that are applying for a Green Card in the United States could be denied if they become a public charge. This new rule will include two public charge provisions:
  • U.S. Citizenship and Immigration Services will penalize those individuals that get certain federal benefits.
  • U.S. Citizenship and Immigration Services will use the “totality of circumstances” test to determine who is a public charge. This test will review “heavily weighted negative factors” versus “heavily weighted positive factors.”
    • Heavily Weighted Negative Factors: This would include an application that is unemployed even though they may have employment authorization.
    • Heavily Weighted Positive Factors: This would include those applicants that have a household income at 250% of the federal poverty guidelines.

The “Public Charge” Rule’s Impact On Our Country

The “public charge” rule will come into effect on February 24, 2020, yet it has already created a lot of fear amongst immigrant communities. Many immigrant families in anticipation of this new provision have already begun disenrolling or refusing specific public programs that are necessary for them to thrive and survive. What’s more, the confusion that has resulted from this rule has had a chilling effect on all immigrant families, even those whose immigration status is not affected by this new provision. As this “public charge” rule becomes effective, the potential impacts on immigrants will be severe.  Not only will it prevent many immigrants from seeking Medicaid or other public benefits, which can have disastrous consequences on their family’s well-being, health, and financial security. But by limiting these benefits, it will prevent immigrants from getting and keeping their job, finishing their education, and taking care of their families. As these ramifications continue to grow, they will not only hurt the individual immigrant families and their communities but eventually, this policy will end up hurting our country as a whole.

Why Call Immigration Law Group?

As the precise impact of this policy is still relatively unknown, it comes as no surprise that this new rule brings with it a lot of uncertainty and questions.  With Immigration Law Group, we are here to guide you and help you understand not only how this new policy affects your Green Card status, but we are here to also assist you with any immigration question that you may have. If you would like further information on the “public charge” rule or need to discuss your individual immigration case, contact us today to set up an appointment.

New Public Charge Rule: What Documents do Green Card Applicants need now?

Since 1996, federal laws have stated that aliens must demonstrate self-sufficiency to be granted permanent legal status. The Supreme Court’s Inadmissibility on Public Charge Grounds Final Rule, implemented on February 24th, 2020, revised the guidelines of determining whether an alien individual is admissible to the U.S. or eligible to obtain permanent legal status, based upon the likelihood of becoming a public charge. Consequently, United States Citizenship and Immigration Services (USCIS) have the discretionary power to deny green cards to migrants with histories of using benefits. To decide whether an individual merits legal permanent resident status, USCIS will consider an alien applicant’s income, employment status, health, age, education, family circumstances, prospective immigration status, and prospective period of admission.

Applications for visas and lawful permanent residency processed at U.S. embassies and consular offices outside of the U.S. will operate under the February 24th regulations. All applicants who are not exempt from a public charge assessment must submit Form 5540 (Public Charge Questionnaire). USCIS officers have been directed to take Form DS-5540 into consideration before denying an alien’s application.

Green card applications, as of February 24th, 2020, must include:

1. Proof of Income of Applicant: this includes the most recent year’s IRS Tax Transcripts of the applicant’s Federal income tax returns (if applicable). If the green card applicant was outside the United States during the most recent tax year, he or she must provide the most recent year’s Foreign Tax Transcripts for income taxes filed with the government of the overseas country. If the green card applicant is not required to file federal taxes, he or she must file a W-2 statement or a Social Security Statement.

If the applicant has any additional non-taxable income (such as child support, unemployment benefits, etc…) not included in tax return, he or she must provide: statements or letters of proof of having received nontaxable income.

2. Proof of Income of Household Members (IF APPLICABLE): if the applicant currently lives with other household members (including a spouse, children, any individual receiving at least 50% of their support from the applicant or on whom an applicant relies for at least 50% support, etc…), then the applicant must provide all of his or her household members’ most recent year’s IRS Tax Transcripts of their Federal income tax returns, or the household members’ most recent year’s Foreign Tax Transcripts for income taxes filed outside the U.S.

Finally, if household members are not required to file federal taxes, the applicant must provide these members’ W-2 Statement or Social Security Statement.

The applicant must also provide evidence of his or her relationship with each household member, such as a birth certificate, marriage certificate, or a signed statement.

3. Evidence of Asset of Household (IF APPLICABLE): Assets include checking and savings account statements, stocks and bonds, retirement accounts, educational accounts, net cash value of real estate holdings, and other substantial assets that can be converted into cash within 12 months.

If the applicant or any of their household members own any assets, proof of the applicant’s or households’ assets must be provided, including: the name of the asset holder, description of the asset, proof of ownership, and basis for owner’s claim of its net cash value.

4. Proof of Liabilities/Debt (IF APPLICABLE): IF the applicant has liabilities or debt, he or she must provide documentation (letters or statements) for each liability and debt :
a. Such examples include Mortgages, Car Loans, Credit Card Debt, Education Related Losses, Tax Debts, Liens, Personal Loans, Unpaid Child or Spousal Support, Other Debts

5. Credit Score and Report (IF APPLICABLE): IF the applicant has a Credit Report or Credit Score in the U.S., he or she must provide a Credit Report from Equifax, Experian, or TransUnion (go to: https://www.usa.gov/credit reports ). If the applicant has no Credit Report or Credit Score, he or she must provide evidence of continued payment of bills and provide documentation that he or she has no credit report with a U.S. credit bureau.

If the applicant has Negative History in his or her Credit Report (such as delinquent accounts, debt collections, tax liens, bankruptcy, etc…), he or she must provide a written explanation regarding each negative history item.

If the applicant has filed for bankruptcy, he or she must provide documentation to show every instance, type, place of filing, and date of the bankruptcy. The evidence of the resolution of each bankruptcy must also be filed if applicable.

6. Proof of Health Care Insurance (IF APPLICABLE): IF the applicant has health care insurance, he or she must provide a copy of the Insurance’s Policy Page that articulates the terms and type of coverage OR the applicant must provide a letter on the company letterhead/ evidence from the health insurance and provide the terms and type of coverage OR the applicant must provide the latest Form 1095-B (Health Coverage) and Form 1095-C (Employer-Provided Health Insurance Offer and Coverage) if available, with evidence of renewal of coverage for the current year.

If relevant, the applicant must also provide proof of Premium Tax Credit or Advanced Premium Tax Credit, with a transcript copy of the IRS Form 8963 Report of Health Insurance Provider Information, Form 8962 Premium Tax Credit (PTC), and a copy of Form 1095A, Health Insurance Marketplace Statement.

If relevant, the applicant must also provide proof of the deductible or premium amount, with documentation.

If relevant, the applicant must also show documentation of the date of insurance termination or date of renewal.

If the applicant has enrolled in health insurance that has yet to start, he or she must provide proof of enrollment, such as a letter that includes the terms, type of coverage, name of the individual covered, and the date when the coverage begins.

If the applicant has a medical condition that will affect his or her circumstances of work, he or she must provide documentation that can outweigh negative factors related to the medical condition (this includes information provided by a civil surgeon or a panel physician on a medical examination, attestation from your treating physician regarding the prognosis of any medical condition and whether it impacts your ability to work or go to school, or evidence of sufficient assets and resources to pay the costs of any reasonably anticipated medical treatment).

7. Public Benefits Received (IF APPLICABLE): IF the applicant has received any Public Benefits, he or she must include evidence of that public benefit (such as a letter, notice, certification) that include the applicant’s name, the public benefit-granting agency’s name and contact information, type of benefit, date of authorization to receive the benefit, and the date benefit or coverage ended or expires. Such Public Benefits include: any local, state, federal, or tribal cash assistance for income maintenance; Supplemental Security Income; Temporary Assistance for Needy Families; Supplemental Nutrition Assistance Program; Supplemental Nutrition Assistance Program; Public Housing under the Housing Act of 1937; Federally funded Medicaid.

If the applicant has applied for a Public Benefit but been denied or rejected, he or she must provide documentation of denial or rejection.

If the applicant has disenrolled from a Public Benefit, he or she must
provide evidence of disenrollment or request to disenroll.

If the applicant has withdrawn from a Public Benefit, he or she must provide evidence demonstrating that the public benefit granting agency received your request to withdraw the application. The applicant may also provide evidence from a federal, state, local, or tribal agency administering a public benefit that shows that he or she does not qualify or would not qualify for such public benefit based on his or her annual gross household income or prospective immigration status.

8. Immigration Fee Waivers (IF APPLICABLE): IF the applicant has ever applied or received a fee waiver when applying for an immigration benefit AND the circumstances that caused an applicant to apply have changed, he or she must provide documentation to support any explanation of changed circumstances.

9. Education and Skills of the Applicant: IF an applicant is unemployed because he or she is the primary caretaker of a child/disabled individual/elderly, he or she must provide documentation showing that he or she is the primary caretaker (such as a legal guardianship court order), that the individual resides in the applicant’s household, and proof of the individual’s age/medical condition (if relevant).

If the applicant has graduated high school or obtained a tertiary level degree, he or she must provide transcripts, diplomas, degrees, certificates, or written explanation/letter issued from the institution as to why these documents are unavailable. Note that all foreign education should include an evaluation of equivalency to education or degrees acquired at U.S. educational institutions.

If the applicant has any occupational skills, he or she must provide a list of licenses for specific occupations/professions AND certificates documenting mastery or apprenticeships in skilled professions and trades.

If licenses/certificates are unavailable, the applicant must provide a written explanation and letter from the issuing institution to explain why these documents are unavailable.

If the applicant has completed courses and/or received any certifications in English or other languages, he or she must provide proof of language or literacy classes taken or currently being taken, or other proof of proficiency.

If the applicant is a speaker of English or another language, he or she must provide documentation of language proficiency including language certifications (such as high school diplomas and college degrees showing that the native language was studied for credit).

10. Proof of Retirement (IF APPLICABLE): IF an applicant is currently retired, he or she must provide documentation or statements of income from pensions, social security, and other retirement benefits.