Article: AMENDED HR 1044 IN S.386 HAPPENING NOW AMID A FLOOD OF CONCERNS

As published in the Immigration Daily on September 23, 2019

S.386 based on amended HR 1044, the “Fairness for High Skilled Immigrants Act of 2019”, appears on study to make visa number allocation changes in the EB-2 advanced degree and EB-3 skilled workers/ professionals/other worker categories benefiting only  the India-born. Senator Mike Lee (R-UT) moved for a unanimous vote in the Senate on September 19th (it previously passed the House) and although rebuffed by Senator David Perdue (R-GA), said that he intended to work with Sen. Purdue over the weekend to resolve differences.

The difficulty with the visa number change provisions is that there are only a finite number of employment-based visas, 140,000 allotted each year, to be fought over by every country in the world. (After FY 2022, 5000 of the visas will be taken for a period of 5 years for a new shortage occupation category). The legislation will remove the limit of the total that each country can obtain (currently 7%) and allow one country to take as many numbers as it can subject to a three-year transition period in which 15% would be reserved for the rest of the world except for India and China in FY 2020, and 10% in both 2021 and 2022 fiscal years. Of the 140,000, EB-2 is allowed 40,040 visas per year, and EB-3 the same amount (minus the 5000 for the shortage occupation category after FY 2022). As there is an 85% rule for the three-year transition period in which a single state cannot take more than that amount of visas, that means India-born could conceivably swallow up close to 85% of the EB-2 and EB-3 quotas for FY 2020-2022 less the numbers that must still be given to China-born and those of the rest of the world who have I-140 petitions approved as of the date of enactment since there is a “hold harmless” clause that those individuals will receive immigrant visas as if this legislation was never passed. The reason for the dominance of India is because entitlement to visa numbers depends upon priority dates with the oldest ones being served first. The pending India cases have priority dates which are 6 years earlier than the earliest priority date of the next heaviest user of employment-based immigrant visas, China. According to U.S.C.I.S. statistics in April 2018, India-born in the U. S. with approved I-140 petitions have a backlog of over 430,000 cases including dependents in the EB-2 line and about 115,000 including dependents in EB-3. This does not take into account approved petitions for India-born outside the U. S. According to Department of State statistics in November 2017, there were an additional 10,961 and 21,962 Indian cases in the EB-2 and EB-3 lines, and using the same U.S.C.I.S. multiplier for dependents, those figures would increase to 21,922 and 46,120. Simple math shows that only 80,080 total EB-2/EB-3 visas will be available every fiscal year with a three-year total of 242,400 through FY 2022. India alone had an estimated demand for 616,683 EB-2 and EB-3 numbers (using the above statistics counting those India-born in the U. S. and overseas with approved petitions) and there is no indication that the number of Indian employment cases has slackened recently. Following the transition period of 3 years, the reserve will come off of the 15% and 10%, and the entire 135,000 will then be available to the countries with the earliest priority dates, most likely still India as there will still be an estimated India demand of 350,000+ in the 2 categories, and the lower EB-3 category will be filled up by the many conversions of India EB-2 cases to EB-3. India’s backlog will also be longer due to the 5% drop-off in the worldwide reserve from 15% to 10% in FY 2021 and FY 2022 as a single state is restricted to 85% of the available visas. It should be noted that EB-2 and EB-3 numbers can be augmented by drop downs of unused visas from other categories, but visa usage is extremely high across the board and significant drop downs are unlikely.

The difficulty with the bill is that it does not expand the number of employment-based visas except for 5000 additional numbers for 3 years for the shortage occupations and only reallocates the existing ones. The “do no harm” clause will primarily only apply to a number of individuals from China with approved petitions whose cases would be within striking distance under China’s current backlog, but for those China-born without approved petitions on the date of enactment, they would be severely disadvantaged by the much earlier priority dates of the mountain of Indian cases. Their only sliver of hope is to take advantage of the 5% drop of reserved visas from 15% to 10% in FY 2021-2022 which Indians will not be able to touch because of the 85% single state limit rule. Additionally the logistics of administering a separate chart to figure out what visa movement would have been for the approved petition cases will likely be a nightmare.

For family-based cases, the legislation would increase the number of visas available for each country from a limit of 7% of the 226,000 worldwide total to 15%. The legislation would primarily benefit the countries of Mexico and the Philippines, and can be expected to retrogress family-based priority dates in all categories with the possible exception of the F-2A preference (LPR applying for spouse or unmarried child under the age of 21) which is current across all countries today.

Besides the visa number situation, a poison pill was slipped into the legislation by Senator Chuck Grassley (R-IA), an opponent of the H-1B program, in the form of provisions reformulating new H-1B’s as a test of the American job market with the requirement of a searchable Internet website for posting positions administered by the Department of Labor which must not only describe the job in full, but include the process for applying for the position. Currently the H-1B program is not a test of the American job market except for certain employers who have a large number of H-1B workers or past violators of the program. The employer would not be allowed to restrict the position to individuals who are or would be H-1B non-immigrants; give those individuals priority or preference in the hiring process; nor primarily recruit those types of individuals. The poison pill would also include the promulgation of a regulation to charge for the Labor Condition Application (LCA), and place challenges pertaining to the prevailing wage directly under the jurisdiction of the Department of Homeland Security (currently wage questions are the province of the Department of Labor).

Relating to H-1B’s, the new rule would also eliminate the use of B-1 business visas which companies use in lieu of H-1B’s where the alien will come temporarily to the U. S. for certain purposes for a short period(s) of time while being paid by an overseas company.

The one good part of the legislation is the reinstatement of Schedule A shortage occupations such as nurses and physical therapists for 8 years from FY 2020-2028 under which 5000 additional visas would be allocated for a three-year period from FY 2020-2022 before slicing into the 140,000 employment-based numbers. The inclusion of this provision prompted Senator Rand Paul (R-KY) to drop his opposition to the bill.

The legislation has an effective date of September 30, 2019, even if passed after that date. If the bill passes the Senate, it will go back to the House for reconciliation and final passage before moving to the White House.

On balance, we cannot support this bill, and urge a better one under which all employment dependents will no longer be counted or backlogs cleared for all countries inasmuch as the visa applicants are individuals who would benefit this nation, and have been or will be cleared by the Department of Labor and/or U.S.C.I.S. in labor certification/petition approvals in terms of skills to help the country – many in critical industries.

Q&A’s published on the World Journal Weekly on September 22, 2019 1. In Final Stages of Our LPR Son Sponsoring His Wife In China, What To Look Out For? 2. Have Order by Immigration Judge Because Did Not Show Up, Can My American-born Son Now 21 Sponsor Me for the Green Card? 3. H-4 Dependent Now Visiting Home, Can I Apply For Employment Authorization Card?

1. In Final Stages of Our LPR Son Sponsoring His Wife In China, What To Look Out For?

Our son has a green card through us, married his girlfriend in China, and has been in China for most of the past 2 years with her using a reentry permit. U.S.C.I.S. finally approved his I-130 petition for her 2 months ago, we paid the fees to the National Visa Center, and now we are at the stage of gathering documentation and filling out his wife’s immigration application form. We see that the visa category for his wife is open, and assume that she will be interviewed soon. They do not have any children yet. Is there anything that we or he should be aware of at this time?

Mr. Lee answers,
Your son and his wife should gather together all evidence of the bona fide relationship including wedding photos, studio photos, reception photos, photos of them living together, taking trips together with flight tickets, bus tickets, rail tickets, hotel receipts, household registration, statements from family, friends and neighbors with knowledge that they are married and living together and how they know, correspondence sent to either one of them at the place that they live, etc. Your son should also consider leaving China and staying in the U. S. as the affidavit of support that he will be signing (even if there is a financial cosponsor) is dependent upon his establishing a domicile in the U. S. According to the Department of State, he must satisfy the consular officer by a preponderance of the evidence that he will establish a domicile in the U. S. on or before the date of his wife’s admission to the U. S., and the Foreign Affairs Manual gives as examples opening a U. S. bank account, transferring funds to the U. S., making investments in the U. S., and seeking employment in the U. S. The best proof is being in the U. S. with at least one of the above.

2. Have Order by Immigration Judge Because Did Not Show Up, Can My American-born Son Now 21 Sponsor Me for the Green Card?

In 1992, I came to the United States illegally by boat, was caught before landing, spent 3 months in detention, and did not attend my court hearing. I know my case number but do not have any papers. My son is now 21 and I would like him to apply for the green card for me and he is willing to do it. He works in a restaurant and pays his taxes which is enough for my support. I have never been arrested except by immigration when I came into the country and have tried to live a good life as a good person since coming here. Can he do it?

Mr. Lee answers,
The answer may well depend upon what U.S.C.I.S. did in terms of paperwork when you were released. If you were given an I-94 card with the legend “212(d)(5)” on it, that would fit one of the requirements for adjustment of status as a person who has been inspected and admitted or a person who has been paroled. Although your case would be complicated even if you had such an I-94, at least you would have a starting point. I suggest that since you do not have documentation on your case, you should obtain a complete copy of your files from both U.S.C.I.S. and the immigration courts. You can do so pursuant to the Freedom of Information Act. Even if such an I-94 is not disclosed in your immigration files, it is always good for you to have a copy of your immigration files as any lawyer who will work on your case in the future will want to see what information the government holds on you.

3. H-4 Dependent Now Visiting Home, Can I Apply For Employment Authorization Card?

My husband has been working in the U. S. for 3 years in the U. S. under H-1B visa and me under H-4 dependent visa. He just got his I-140 petition for work approved while I am visiting at home overseas. I plan to be here for the next 2 months before returning to the U. S., and want to know if I can apply for the employment card based on my husband’s getting the I-140 approved to save time and someone told me that it will take Immigration about 3 months to approve the work permission.

Mr. Lee answers,
Unfortunately, that does not appear to be possible under current immigration procedures. The instructions on the I-765 Application for Employment Authorization state in the first line that “Certain foreign nationals who are in the United States may file form I-765….” In addition, the form asks for information concerning present address and last entry into the United States. If a foreign address is used or the entry section is left blank, the application would in all likelihood be rejected. You should be patient and wait to file until you return to the States. I note that the H-4 employment authorization program is experiencing strong headwinds as the Trump administration will likely come out with regulations restricting or abrogating it in the near future.

Q&A’s published on Lawyers.com and the Epoch Times on September 20, 2019 1. Case Status Changed From “Case Was Received” to “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It”? 2. A Company filed H-1b for My Wife Who is On H-4 Visa  In U.S. If H-4 Is Expired but H-1B Is Pending.  What To Do? 3. Can I Still Have a Chance for Approval If I File Motion to Reopen/ Reconsider My I-601 Denial?

1. Case Status Changed From “Case Was Received” to “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It”?

My petition was filed with USCIS for H4 dependent visa in May 2019. My spouse who is on H1B visa got his petition approved in July to being Oct. 1, 2019, however, my case is shown as “Case was received”. But on August 5th 2019 the status changed to “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It” though there was no change in address. What should I do in this case? What does “Notice Was Returned To USCIS Because The Post Office Could Not Deliver It” really mean when there was no update on my case status.? Lastly, my H1B petition is picked in the lottery for this year and my employer has replied for the RFE raised by USCIS. The status for my H1B petition is shown as ” Evidence received”. Will this change in H4 status impact my H1B petition?

Mr. Lee Answers:
To find out what is happening with your case, you should call the U.S.C.I.S. Contact Center at 1-800-375-5283. A customer representative should be able to tell you what notice was returned to the agency. The notice usually means that U.S.C.I.S. sent something to you, and for some reason the notice was returned, e.g. name was not on the mailbox or postman did not recognize that you lived at the address. As to whether a change in your H-4 dependent visa case will impact your H-1B petition, it may depend upon the content of the notice. If the notice that was sent out was a denial, you would likely receive a denial on the change of status part of the H-1B even if the petition part is approved by U.S.C.I.S.

2. A Company filed H-1b for My Wife Who is On H-4 Visa  In U.S. If H-4 Is Expired but H-1B Is Pending.  What To Do?

A company filed H-1b for my wife(who is on H-4 visa with me in US) this year through H-1b quota. If H-4 visa is expired and if we are still waiting for H-1B status update, will my wife be out of status in US? Can I file for H-4 extension after we get rejection for H-1b, even after the date H-4 gets expired? Seeing the delays in H-1B and number of rejections we are receiving, Should I instead look for filing H-4 EAD for my Wife, as my I-140 is approved? If yes do I need to extend H-4 before filing H-4 EAD or they go together in tandem. If we get H-4 EAD before H-1B approval would H-1B be still valid.

Mr. Lee Answers:
If your wife’s H-4 visa status is expired and she is still waiting for the H-1B which was filed on her behalf, she would not be considered out of status as long as the H-4 extended until September 30 if your wife is applying for a cap H-1B. Your wife can file for an H-4 extension even after the date is expired, but it will be up to U.S.C.I.S. as to whether it will approve a late extension. As your I-140 petition is already approved, you can think of your wife filing an H-4 EAD, but should be aware that U.S.C.I.S. is reportedly looking to rescind the rule that allows H-4 employment. If you and your wife do decide to go that route, your wife can file for extension and EAD at the same time. If your wife obtains the H-4 EAD before her H-1B is approved and the H-1B is later approved, the H-1B would be valid and supersede the H-4.

3. Can I Still Have a Chance for Approval If I File Motion to Reopen/ Reconsider My I-601 Denial?

My husband currently out of the US and had gotten denied I-601 and visa application. Is there anything else we can do or apply for? He is inadmissible until 2026 it says and has a drug felony. What are my chances of appeal of the denial?

Mr. Lee Answers:
A section 212(h) waiver for which you have filed the form I-601 will not forgive a crime involving drugs except for possession of 30 g or less of marijuana for personal use. I do not imagine that you would win on appeal or by filing a motion to reopen or reconsider the denial unless that was the offense for which he pled or was convicted.

Q&A’s published on Lawyers.com and the Epoch Times on September 13, 2019 1. My Mother Overstayed Outside USA for 5 Years. Her Green Card Still not Expired. Can She Enter USA With Her Unexpired Green Card? 2. My OPT Expires Oct 20th. Do I Have to Get TN At Border Exactly 1 Month Before OPT Expires or Can I Do TN When OPT Expires? 3. How Can I Apply for L-2 – EAD Extension With L-1 and L-2 Extension Receipt Alone?

1. My Mother Overstayed Outside USA for 5 Years. Her Green Card Still not Expired. Can She Enter USA With Her Unexpired Green Card?

My mother is a US permanent resident w/ an UNEXPIRED green card but has overstayed outside the US for 5 yrs now. She is afraid that she might get held at the immigration office at the airport if she does fly over here to the US without a reentry permit. She was denied a reentry permit last time. The difficult Consul who interviewed her for the reentry permit in the Philippines told her that I have to file for a new petition on her, which I believe is ridiculous. I have a friend who’s mother had the same situation, and the mom was able to get thru the immigration border at the airport and was just given instructions on what to do (i am unsure if the mom had to pay penalty fees or what). I can get my mother to do the same and risk it, even if we have to just pay penalty fees. I just want her back here with me in the US.

Mr. Lee Answers:
You have hit the nail on the head as to the dilemma that permanent residents face who have remained outside the country for longer than the period of time allowed under the green card. It is the bother, cost, and time of waiting and filing a new petition as opposed to having the person come in and take his/her chances with CBP at the airport with the understanding that a refusal would either have the individual leave the US and surrender the green card or challenge the CBP decision in an immigration court. A loss there could subject her to an order of removal. You should discuss these options with your mother and see what is her tolerance level of risk before you both decide what to do.

2. My OPT Expires Oct 20th. Do I Have to Get TN At Border Exactly 1 Month Before OPT Expires or Can I Do TN When OPT Expires?

I graduated with my Doctorate of Pharmacy from an American college. I got OPT. I accrued 75 days of unemployment before finally landing a job (so I only have 2 weeks of unemployment left on my OPT before hitting that 90day mark for OPT). Currently I work on my OPT as a pharmacy graduate intern. I become a licensed pharmacist in April. I was told that I must go to the border 1 month before my OPT expires to get my TN visa. My OPT expires Oct 20th . I have 2 questions/concerns. 1- Am I allowed to continue working on my OPT until it expires then go to the boarder to get my TN( I want to work for my current employer on my OPT as a pharmacist before asking for TN support i.e work till Sept 20th before asking for TN support and going to the boarder) and 2- what happens if accrue more then 90days of unemployment? Do they have a way of checking that when I go to the border to get my TN visa?

Mr. Lee Answers:

There is nothing in the law that says that you must go to the border with one month left on your OPT in order to apply for a TN visa. It may be that some people believe that they might be able to reenter the US under OPT if the TN visa is refused if they have one more month left under OPT. Your second question of what happens if you accrue more than 90 days of unemployment during your time under OPT, it would probably be very difficult for an immigration inspector to have knowledge of that fact although he or she may ask you questions about the subject if he or she is so inclined.

3. How Can I Apply for L-2 – EAD Extension With L-1 and L-2 Extension Receipt Alone?

My L-2 and my spouse L-1 visa expired on July 12th 2019, extensions are in process now.  My spouse company applied my L-2 extension but they did not do my employment authorization document EAD (even requested). I heard that I can applied L-2 EAD extension with L-1 and L-2 extension receipt, is it so? How can I do that? I don’t have valid I-94 or valid visa on hand now, I have only the extension receipt.

Mr. Lee Answers:
To apply for an L-2 employment authorization in your circumstance in which the L-1 and L-2 extensions are pending, you would fill out the employment authorization form, I-765, and attach copies of the two receipts, proof of your marriage, and a photo ID.

Q&A’s published on Lawyers.com and the Epoch Times on September 6, 2019 1. Derivative Citizenship After 12/24/52 Requires A Green Card Holder to Be Unmarried Until His 18th Birthday? 2. DMV of Georgia is Not Ready to Renew a Driver License For a Legal Immigrant Working on H-1B But The Extension Is Still Pending 3. Is There a Danger for Using B1/B2 Frequently?

1. Derivative Citizenship After 12/24/52 Requires A Green Card Holder to Be Unmarried Until His 18th Birthday?

Can you be married prior to 18 years of age for derivative citizenship after 1975?

Mr. Lee answers: 
To my knowledge, derivative citizenship cannot be approved for anyone who has married prior to 18 years of age. Otherwise, the individual is no longer unmarried and under the age limit, the two requirements for being a derivative.

2. DMV of Georgia is Not Ready to Renew a Driver License For a Legal Immigrant Working on H-1B But The Extension Is Still Pending

I am currently working on a work H-1B visa. My visa expired on July 10th 2019. As per your website, on providing an original I-797C along with the petition and I94/Current passport with visa stamp, my driver license should be renewed. As per DMV[Georgia] they require a stamped passport in order to renew a license, which never happens since the extension of the VISA comes as a new petition and not as a stamped VISA in the passport. So now even though I can legally remain within the country for 240 days[as per USCIS because of I797c]. I cannot drive legally. Please let me know why the rules made by DMV and USCIS are contradictory.

Mr. Lee answers: 
The reason for the disparate treatment of your situation by U.S.C.I.S. and DMV is that U.S.C.I.S. does not control local DMV’s. Some local DMV’s will respect the language on the I-797C of automatic extension of work authorization so long as the extension request is in the same class previously granted. However, it is left up to the local DMV’s as to whether they wish to respect the language.

3. Is There a Danger for Using B1/B2 Frequently?

 My friend was visiting the US on a B1/B2 Visa June 5th and left July 5th. She is coming back to help me get situated in my new home and to visit.

Mr. Lee answers: 
I will assume that your question has to do with the safety of your friend coming back into the country so soon after having left. Since your friend only stayed a month, a decent interval of a few months between leaving and coming back would probably be okay as long as there has not been a pattern of your friend frequently coming into the US.

Q&A’s published on Lawyers.com and the Epoch Times on August 30, 2019 1. I Am Married to a U.S. Permanent Resident. Do I Need to Wait 3 or 5 Years to Apply for Citizenship? 2. Can I Apply for Asylum in the USA If I Have Poland’s Temporary Residence Card and Citizenship of Ukraine? 3. Can I Bring A Boy I Met on Facebook to the U.S.?

1. I Am Married to a U.S. Permanent Resident. Do I Need to Wait 3 or 5 Years to Apply for Citizenship?

I got my green card Jan 2019 and I am currently living in the states. I am married to a permanent resident 7 years ago with 3 kids who were born in the States. My wife got her green card back in 2008.

Mr. Lee answers: 
Regardless of the time that you have been married to a permanent resident and the number of children that you have with her, the amount of time to apply for citizenship is five years unless your wife becomes a US citizen. Then you can count three years from that date and can file 90 days before the three years as long as you have both been living together without significant break during the three-year period.

2. Can I Apply for Asylum in the USA If I Have Poland’s Temporary Residence Card and Citizenship of Ukraine?

I would like to ask is it possible for me to apply for asylum in USA if I have Poland’s temporary residence card and citizenship of Ukraine?

Mr. Lee answers: 
Persons who have some type of legal status in a country other than the homeland of persecution would find it difficult to obtain asylum in the US. That is because no country wants to give an individual the choice of applying in that country when he or she could have applied in the first country. In your situation, you have a temporary residence card in Poland and unless circumstances exist such as your also having a fear of persecution in Poland, it is doubtful that you would have a successful case for asylum in this country. Other factors that could affect a decision could be whether Poland allows individuals to apply for political asylum and whether your status in Poland ended and you have no right to return to that country.

3. Can I Bring A Boy I Met on Facebook to the U.S.?

I’m a 58 years old man and I have this boy 19 years in Ghana that I met on Facebook we’ve been talking for 2 years now. We haven’t met physical but we always video chat. I see him as a son to me and I want to help him get here to live in the states with me probably continue his education here. How do I go about this to bring him here?

Mr. Lee answers: 
If the boy is a student at this time and you wish to have him continue his education in the US, you could possibly find a school for him that would issue an I-20, and send the I-20 to him with your affidavit of support including the form I-134 affidavit of support, job letter, banking statement, last year’s tax return, and a statement to the consulate or embassy concerning your relationship with the boy and why you would be willing to sponsor him for schooling in the US.

Q&A’s published on Lawyers.com and the Epoch Times on August 23, 2019 1. Tourist Visa While Awaiting for Green Card 2. Can I Apply for a Green Card Without Being Sponsored? 3. My Immigrant Visa Case Was Filed in 2005, Was Given a 221g At The Time of Interview.

1. Tourist Visa While Awaiting for Green Card

I am an Indian my wife is USA citizen. We married in India 4 years ago. She has Indian overseas Citizenship. She is staying in India on and off. My immigrant visa is already in progress. Is it possible for me to get tourist visa to go and visit my wife?

Mr. Lee answers:
Whether you are allowed to obtain a tourist visa to visit your wife is a decision of the US consular officer when you make an application. The question is whether you would be trustworthy enough upon your assurance that you would return to India once the period of visit is over. If you decide to apply for a visitor’s visa, you should certainly put down on the visa application that your wife is in the US and has applied for you on a visa petition.

2. Can I Apply for a Green Card Without Being Sponsored?

I recently got my PhD from a university in the US and is starting my OPT soon. Will I be able to apply for a green card without having an employer to sponsor me?

Mr. Lee answers:
Other than the family based cases, asylum, visa lottery, and EB-5 immigrant investor, I assume that your question is more attuned to whether you can self-sponsor yourself through employment. Presently individuals are able to do so only if they are extraordinary in the field of endeavor or their immigration would advance the national interest. It is good to have a PhD, but under present law, it would not entitle you to an automatic green card. I do note that the Trump administration keeps attempting to change the immigration system to allow educated individuals like you to self-sponsor upon the attainment of a certain number of factors related to education and experience. Whether any such legislation will be enacted is questionable as the proposals have unfavorable aspects to Democrats and other immigration proponents. But we will be keeping our eyes on them the same as you, I imagine.

3. My Immigrant Visa Case Was Filed in 2005, Was Given a 221g At The Time of Interview.

 The case been updated in 2018 and now has returned to NVC.  What to do now?

Mr. Lee answers:
When a case is returned to the NVC, it is usually thereafter transmitted to U.S.C.I.S. which looks over the basis for rejection at the US Embassy or Consulate. If it believes that the reason was wrong, it could reaffirm the approval and send the case back to the US Embassy or consulate for further processing. If it believes that the post may be or is correct, it will send the petitioner a notice of intent to revoke the petition. Since you are complaining of an NVC return in 2018, you may wish to check with the petitioner to see if anything was received. If nothing was received, the petitioner or you should check on the case with the NVC to see what happened.

Article: New Public Charge Rule Coming Out on August 14, 2019, Not Retroactive for Cases Submitted Before 10/15/19 and ACA Subsidized Health Insurance Outside of Medicaid not Considered a Public Benefit

As published in the Immigration Daily on August 14, 2019

I have not read the advance copy of the final rule as it is over 800 pages, so this is not a comprehensive summary and is only based on reading the regulation itself and not the comments save for those dealing with health insurance. This can best be used as a quick guide to most of the changes to the public charge section.

The rule goes into effect on 10/15/19, and all cases will be judged by it which are submitted on that day or after. All cases submitted prior to that date will be judged by the old rules. Under the old rules, food stamps (SNAP), section 8 housing vouchers and any other benefits excluded from consideration now are not to be considered. Those that would be considered public benefits now and are received before 10/15/19 will be considered in the totality of the applicant’s circumstances, but will not be weighed heavily. Those include any amount of cash assistance for income maintenance, including SSI, Temporary Assistance for Needy Families (TANF), state and local cash assistance programs that provide benefits for income maintenance (often called general assistance programs), and programs including Medicaid supporting aliens who are institutionalized for long-term care, received, or certified for receipt.

The standard of proof in determining the public charge ground is whether someone is “more likely than not” at any time to become a public charge.

U.S.C.I.S. will make a determination of public charge on the totality of circumstances of whether the alien is more likely than not at any time in the future to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period. Minimum factors to consider are the alien’s age, health, family status, education and skills, and assets, resources, and financial status. In looking at the family status, DHS will consider the household size and whether the household size makes the alien more likely than not to become a public charge at any time in the future. In looking at assets, resources, and financial status, the rule looks at whether the household’s annual gross income is at least 125% of the most recent federal poverty guideline (FPG), and on counting assets three times the difference between the household income and 125% of the FPG if the alien is the spouse or child of a USC (and the child has reached the age of 18), and in all other cases five times the difference.

Evidence-wise, U.S.C.I.S. will be looking for tax transcripts from the IRS, and if they cannot be obtained, other credible and probative evidence of household members’ income, including an explanation of why a transcript is not available. Non-cash assets and resources to be considered are those which can be converted into cash within 12 months –specifically mentioned are annuities, securities, retirement and educational accounts, and any other assets easily converted to cash. The rule also considers as evidence the alien’s credit history and credit score in the United States and other evidence of liabilities not reflected in the credit history and credit score, e.g. mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt.

In considering education and skills, an alien must provide the last three years of tax transcripts from IRS and if not available, other credible and probative evidence of the alien’s history of employment for the past three years including an explanation as to why transcripts are not available; whether he or she has a high school diploma or a higher education degree; whether the alien has any occupational skills, certifications, or licenses; whether the alien is proficient in English or proficient in other languages in addition to English; and whether the alien is a primary caregiver such that the alien lacks an employment history.

 Applicants seeking adjustment of status will be required to submit a declaration of self-sufficiency on a form to be designated by DHS.

Where an affidavit of support is required in family-based cases, U.S.C.I.S. will be looking at the sponsor’s relationship to the applicant, including but not limited to whether the sponsor lives with the alien, and whether the sponsor has submitted an affidavit of support for other individuals.

The household size for an alien 21 or older or under 21 and married includes the alien, alien’s spouse physically residing with the alien, children physically residing with the alien, other children not physically residing for whom the alien provides or is required to provide at least 50% of the children’s financial support, any other individuals including a spouse not physically residing with the alien to whom the alien provides or is required to provide at least 50% of the individual’s financial support or are listed as dependents on the alien’s federal income tax return, and any individual who provides to the alien at least 50% of the alien’s financial support, or who lists the alien as a dependent on his or her federal income tax return. Similar rules apply where the alien is a child including the child’s children, parents, legal guardians, or other individuals providing or required to provide at least 50% of financial support, and the other children or other individuals to whom the alien’s parents are legal guardians who provide or are required to provide at least 50% financial support, or any other individual who is listed as a dependent on the parents’ or legal guardians’ federal tax return.

Heavily weighted negative factors are that the alien is not a full-time student and is authorized to work, but is unable to demonstrate current employment, recent employment history, or reasonable prospect of future employment; has received or has been certified or approved to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period beginning no earlier than 36 months prior to the alien’s application for permission or adjustment status on or after 10/15/19; the alien has been diagnosed with a medical condition likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work, and is uninsured and does not have the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition; or the alien was previously found inadmissible or deported on public charge grounds by an immigration judge or the Board of Immigration Appeals.

Heavily weighted positive factors are that the alien’s household has income, assets, or resources, and support of at least 250% of the FPG for the alien’s household size; the alien is authorized to work and is currently employed in a legal (as opposed to illegal) industry with an annual income of at least 250% of the FPG; or the alien has private health insurance and does not include health insurance for which the alien receives subsidies in the form of premium tax credits under the Affordable Care Act (ACA).

Refugees and asylees along with certain other classes are exempt from the rule.

Public benefit means all of the ones currently prohibited, but the new ones are food stamps (SNAP), section 8 housing assistance under the housing choice voucher program, section 8 project-based rental assistance, public housing under section 9 of the US Housing Act of 1937, and Medicaid (except for emergencies, benefits under the Disabilities Education Act, school-based services or benefits for persons below the oldest age eligible for secondary education, benefits received by an alien under 21 or a woman during pregnancy and during the 60 day period beginning on the last day of the pregnancy). Of note is that it does not include health insurance bought with subsidies outside Medicaid. In answer to a comment on whether to add subsidies provided using means tested criteria under the Patient Protection and Affordable Care Act, DHS answered in the following:

DHS has decided not to consider ACA subsidies or health insurance received through the health insurance marketplace outside of Medicaid as public benefits in the public charge inadmissibility determination, due to the complexity of assessing the value of the benefit and the higher income eligibility thresholds associated with the benefit, as compared to the eligibility thresholds for other benefits. As discussed in section III.R of this preamble, DHS has added a heavily weighted positive factor for private health insurance appropriate to the expected period of admission. This heavily weighted positive factor would not apply in the case of a plan for which the alien receives subsidies in the form of premium tax credits.

In the future, a strong suggestion would be for those organizations offering subsidized health insurance to openly identify the source of the subsidies.

Public charge bonds to overcome the public charge ground can be given in the discretion of DHS with the warning that if an alien has one or more heavily weighted negative factors in his or her case, DHS generally will not favorably exercise discretion to allow submission of the bond. The minimum amount of bond has been decided as not less than $8100, and bond amounts will be annually adjusted for inflation based on the Consumer Price Index for Urban Areas (CPI-U) and rounded up to the nearest dollar. The bond remains in effect until U.S.C.I.S. grants the request to cancel the bond in situations wherein the alien has naturalized or otherwise obtained US citizenship, permanently departs the US, dies, has reached his or her five year anniversary since becoming an LPR, or the alien changes immigration status to one not subject to the public charge ground of inadmissibility. Where a bond has been granted, the alien may not receive any public benefits for more than 12 months in an aggregate within any 36 month period (such that, for instance, receipt of two benefits in one month counts as two months) after the alien’s adjustment of status.

We imagine that in the next two months before the regulation goes into effect, there will be court challenges which may delay or alter the final rule, and we hope that such will meet with success. The rule while not being the worst imaginable in this author’s opinion clearly favors those who are young, educated, middle-class to affluent, and speak English. The Trump administration has already said that parents, less educated, and non-English-speaking people (mostly those of color) are no longer welcome, and this regulation is that planted sign on the front lawn of America.

Q&A’s published on Lawyers.com and the Epoch Times on August 16, 2019 1. Marriage Fraud 2. Denied to Work 3. How to Apply for My Husband who is an Illegal Immigrant?

1. Marriage Fraud

How can I help my husband get back in the US? His I-130 was denied for marriage fraud, which he denies.

Mr. Lee answers:
If your husband has convincing evidence that he did not engage in marriage fraud, you can appeal the I-130 determination within 30 days with all proof of the bona fides of his marriage. If the evidence is not available in time for an appeal, you can file a new I-130 petition when he obtains the evidence, and include that in the I-130 submission.

2. Denied to Work

I am a Ph.D. F-1 visa student from India with a valid green card petition filed in 2009. I was given an assistantship at Wayne State University and the Office of International Student Services denied me to work because I did not have an EAD card. The last time I check the USCIS can only change my status or get work if my priority date in September 2009 comes up and they provide me an alien number, which they have not. Also, after I received my green card petition receipt notice in September 2009, I became out of status because the process took a long time. What can I do?

Mr. Lee answers:
If your F-1 visa status was never formally terminated by U.S.C.I.S. in a written decision or if you did not have the F-1 status terminated in the immigration court, you could possibly interview at the American consulate or embassy in your home country for an immigrant visa. You would not be barred from coming back unless either of the circumstances as described above occurred since the status of an F-1 student is duration of status without a fixed time limit.  At present, you are not considered under an unlawful presence bar if you leave and re-enter. The Trump Administration’s attempt to change the law of unlawful presence unfavorably in a memo in August 2018 was enjoined by the U.S. District Court for the Middle District of North Carolina on 5/3/2019.

3. How to Apply for My Husband who is an Illegal Immigrant?

If I marry an illegal immigrant can I get his green card without getting deported. I am disabled and he helps me a lot and he is going to be my husband.

Mr. Lee answers:
U.S.C.I.S. looks to see whether a marriage is bona fide in the sense that two people are committing themselves to a marital relationship. A marriage to Immigration’s eyes is not one in which one party is a nursemaid to another only in exchange for a green card. Assuming that the marital relationship will be bona fide, the chances of the undocumented spouse being deported depends upon whether the individual has prior criminal acts or has been in immigration removal proceedings. If not, the chances of the spouse obtaining permanent residence without being deported are good.  If the undocumented immigrant entered the U.S. legally with a non-immigrant visa or parole, he may be eligible to adjust status to permanent resident without leaving the country.  Otherwise he may need a waiver (I-601A) before traveling back to his home country for a consular interview.

Q&A’s published on Lawyers.com and the Epoch Times on August 9, 2019 1. How Long Does One Have to Wait for an Immigration Judge Decision on A Defensive Asylum Case? 2. My brother Married a Venezuelan Woman Who Originally Was Here On a Visa That Expired 2 Years Ago 3. How to Add One More Beneficiary in My National Visa Center Application?

1. How Long Does One Have to Wait for an Immigration Judge Decision on A Defensive Asylum Case?

I am an asylum applicant with a pending defensive asylum case. I have received a notice to appear in front of an immigration court. How long does the Immigration Judge take to give a decision? Is it the same day?

Mr. Lee answers:                   
Assuming that your appearance is for a master calendar hearing and not for a final merits hearing and depending upon whether your case is one of the “surge” cases that the government is interested in finishing immediately, your case could take anywhere from six months to four years for the immigration judge to hear the case and make a decision. I assume that you will be continuing your asylum claim in front of the court.

2. My brother Married a Venezuelan Woman Who Originally Was Here On a Visa That Expired 2 Years Ago

My brother is disabled and is currently on Medicaid, so he is not able to sponsor her and children. He has asked me to sign form I-864. I know this makes me legally obligated but can I also be held financially responsible if she or her children are admitted into a hospital without insurance and incur a bill? I want to know how far this financial responsibility goes.

Mr. Lee answers:
Your income and assets are deemed available to the person that you are supporting if that person is seeking means tested benefits on the federal, state, or local level. So any one of the three entities can request reimbursement from you to the extent of your income and assets that the immigrant has taken means tested benefits from them. However, that does not include individuals who obtain emergency Medicaid. While you would not be liable for emergencies, long-term care would be seen as a benefit recoverable by the federal, state, or local government branch which gave the benefit. I note that in the past, it has been unpopular for governmental entities to go after supporters of people who have taken means tested benefits, but this appears to be changing in the present political atmosphere as the Trump Administration is reportedly preparing regulations for governmental entities to enforce the I-864 support obligation.

3. How to Add One More Beneficiary in My National Visa Center Application?

I want to include my 10 year old son’s name in the NVC application.

Mr. Lee answers:
To include your 10-year-old son’s name in the NVC application, you can communicate by letter or email to the NVC expressing your desire to have your child included in the case. You can also include a copy of the child’s birth certificate and passport if one is available.