New Public Charge Rules Go Into Effect for Most Green Card Applicants and Others
Adjustment of Status by USCISUnder the new rule, a public charge inadmissibility determination will be made by USCIS by using a totality-of-the-circumstances approach that weighs the foreign national's age, health, family status, education and skills, assets, resources, and financial status. Form I-944 not only requires information about these attributes, but in order to rely on them as positive factors, documentary evidence is required. For example, not only must health insurance information be provided but also a copy of the health insurance card as well as the health insurance policy. For foreign graduates, in order to get credit for a foreign master's degree, that degree must be evaluated to be the equivalent of U.S. degree. For assets such as property, formal appraisals are requested. (It is unclear if, for example, USCIS will ultimately accept instead a state tax assessment as proof of the property's value). Credit scores from one of the three official credit companies (Equifax, Experian, and TransUnion) is also required. To rely on bank account assets, 12 months of bank statements for each account must be provided. While gathering this kind of information is not necessarily difficult, it is time-consuming, burdensome, and is likely to make the process more expensive. USCIS will be taking into account a broad range of positive and negative factors, and some factors will be more heavily weighed than others but further guidance has not been provided. The four heavily weighted negative factors include
- having received public benefits after 02/24/2020;
- the inability to demonstrate current employment, recent employment history, or a reasonable prospect of future employment;
- having been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the immigrants' ability to provide for themselves, attend school, or work; and the immigrant is uninsured and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs; and
- the immigrant was previously found inadmissible or deportable on public charge grounds.
- that the immigrant's household has income, assets, or resources;
- that the immigrant is authorized to work and is currently employed; and
- that the immigrant has private health insurance.
Consular Processed VisasFor those applying for immigrant visas at U.S. consulates, the DOS had already published revised sections of its Foreign Affairs Manual (FAM) that govern "public charge" for those individuals wishing to immigrate to the United States. The FAM provides instructions for consular officers in U.S. embassies and consulates abroad to use to make decisions about whether to grant non–U.S. citizens permission to enter the United States. In addition to the changes made by DOS in the fall, now it is also requiring completion of a Public Charge Questionnaire, DS-5540, by intending immigrants. DOS had already required that factors (age, health, income, education, family situation, etc.) be considered in the public charge test. And, while the affidavit of support is a positive factor in the totality-of-the-circumstances test, it is not enough on its own to protect an individual from a determination that the person is likely to become a public charge. In addition, changes in evaluating a sponsor's affidavit of support and the use of noncash benefits by applicants, sponsors, and family members suggests that the sponsor's use of benefits could be considered. Also, applicants will need to provide proof of medical insurance or other ability to pay medical expenses in the U.S. during their visa interview. Applicants will need to demonstrate that they have job skills, provide information about their job history, and explain any periods of unemployment or job changes. They may also need to provide information about their plans for employment once they immigrate to the U.S., or whether they have a job offer. Unlike Form I-944, most supporting evidence is not required with the DS-5540, although it may be prudent to include such documentation. Foreign nationals who go through consular processing in their home country before entering the U.S. on nonimmigrant visas may also be affected, although the conditions for obtaining a nonimmigrant visa are normally sufficient to overcome the public charge exclusion, absent evidence to the contrary. Bottom line: USCIS and DOS just made it harder for foreign nationals to obtain permanent residency, and the new requirements will make it difficult for people of more modest means to qualify.
H-1B Registration for Cap-Subject Petitions Opens March 1As of March 1, employer-petitioners are able to begin the H-1B cap-subject petition registration process for FY2021. Such employers must electronically register and pay the associated $10 H-1B registration fee per beneficiary before filing a petition for H-1B visa status for a beneficiary. If approved, the visa would become available on October 1, 2020. The registration period is from March 1 to March 20, 2020. USCIS has announced that the expected lottery will be held no later than March 31, and petitioners will be advised if they have been selected by email by April 1. After the petitioner is notified that the registration has been selected, he or she will have at least 90 days to submit a completed H-1B petition with supporting documentation. Under the new registration process, employer-petitioners must set up a MyUSCIS portal account that an attorney can later access in order to register the H-1B beneficiary. While employers could have set up their account before March 1, they could not enter their H-1B required data until March 1. Because each registration is beneficiary-specific, basic information about the beneficiary is also required. USCIS will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary and in the appropriate fiscal year. Although petitioner-employers can register multiple foreign nationals during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be denied during the registration process. Any H-1B registration that was submitted by March 20, 2020 but was not selected or denied will be kept under the 2021 H-1B registration account for the employer for fiscal year 2021 in the event that not all the H-1B visas are used up.
Consular Processing in China Suspended
Coronavirus's Impact on Individuals Seeking Entry into U.S. After Travel in China or IranIn light of the outbreak of the 2019 Novel Coronavirus, the Trump Administration has taken several measures to control and limit the entry of individuals potentially exposed the virus in China from entering the United States. On January 31, President Trump issued a Proclamation suspending entry of certain immigrants and nonimmigrants who were physically present within China, excluding Hong Kong and Macau, 14 days prior to their entry or attempted entry into the United States. The ban became effective on February 2, 2020. Further, U.S. citizens who are traveling from the Hubei province in China within 14 days of arriving to the United States will be subject to up to 14-day mandatory quarantine. Returning U.S. citizens who had visited other parts of China, outside of Hong Kong, Macau, and the Hubei province, will be subject to monitoring at certain ports of entry, and potentially self-quarantine at home. Those considered exempt under the Proclamation will likely also be subject to the same limitations and protocols as U.S. citizens. The Proclamation clarifies that it does not impact an individual's eligibility for asylum, withholding of removal, or protection under the U.N. Convention Against Torture. In addition to U.S. citizens, the Proclamation does not apply to the following individuals:
- Lawful permanent residents (LPRs) of the United States;
- Spouses of a U.S. citizen or LPR;
- Parents or legal guardians of a U.S. citizen or LPR, provided that the U.S. citizen or LPR is unmarried and under the age of 21;
- Siblings of a U.S. citizen or LPR, provided that both are unmarried and under the age of 21;
- Children, foster children, or wards of a U.S. citizen or LPR, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
- Foreign nationals traveling to the United States at the invitation of the U.S. government for a purpose related to containment or mitigation of the virus;
- Nonimmigrants under INA §101(a)(15)(C) or (D), as a crewmember or any alien otherwise traveling to the United States as air or sea crew;
- Nonimmigrants on an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa;
- Foreign nationals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
- Foreign nationals whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or
- Foreign nationals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
U.S. Consular Processing in China SuspendedAs of February 10, 2020, regular visa services at the U.S. Embassy in Beijing and the U.S. Consulates General in Chengdu, Guangzhou, Shanghai, and Shenyang are suspended. Due to the ongoing situation relating to the novel coronavirus, the U.S. Embassy and consulates have very limited staffing and may be unable to respond to requests regarding regular visa services. Limited emergency appointments may be available.
Restrictions on Persons Who Were in IranAdditional travel restrictions were announced on February 29 regarding persons who were present in Iran during the 14 days preceding their entry. More details of this Proclamation will be discussed in the next newsletter.
Enforcement of F, M, and J Nonimmigrant "Unlawful Presence" Policy Memo Is EnjoinedIn early February, a nationwide permanent injunction was granted by a federal district court, enjoining USCIS from enforcing its August 9, 2018, Policy Memorandum entitled "Accrual of Unlawful Presence and F, J and M Nonimmigrants." The decision is important for many reasons: First, the decision saves thousands of F, J, and M nonimmigrants from suffering three- and 10-year bars to admission to the United States based on technical, often-unknowing violations of status that may have happened many years ago. The decision upholds the interpretation of "unlawful presence" for nonimmigrants in D/S status that no unlawful presence accrues until the D/S nonimmigrant has received formal notification that the U.S. government believes he or she has violated status, at which point the nonimmigrant has 180 days to leave the country to avoid incurring a three-year bar. Second, the court expressly agreed that the definition of unlawful presence in the immigration statute that requires the "expiration of a period of stay authorized by the Attorney General" cannot mean a violation of status and must mean the end of a specific period of time. The decision also is important because it rejected USCIS's attempt to make a very substantive change of policy and legal interpretation by issuing a policy memo without engaging in notice and comment rulemaking. The government has 60 days to appeal this decision. If it does not appeal, the decision, including the permanent nationwide injunction, is final. Hopefully, the government will decide that an appeal is not wise, either because of a realization that issuing the Policy Memorandum was ill-advised or because it concludes that its chances of overturning the decision might be legally tenuous. The case makes clear the importance of institutions willing to step up as plaintiffs in litigation challenging improper and unlawful government actions. If the three universities in this case had not been willing to be plaintiffs in this litigation, the enjoined policy would be in force today. As a result, many thousands of students and scholars would be barred from the United States or would be afraid to leave the U.S. for fear of being unable to return.
Who is Covered?
Expanded Travel Ban 3.0On February 21, President Trump's newest Presidential Proclamation went into effect, expanding the Travel Ban 3.0, to include certain foreign nationals of the following six countries:
- Eritrea: All immigrants, except Special Immigrants who have provided assistance to the U.S. government.
- Kyrgyzstan: All immigrants, except Special Immigrants who have provided assistance to the U.S. government.
- Myanmar (Burma): All immigrants, except Special Immigrants who have provided assistance to the U.S. government.
- Nigeria: All immigrants, except Special Immigrants who have provided assistance to the U.S. government.
- Sudan: Immigrants under the Diversity Lottery program
- Tanzania: Immigrants under the Diversity Lottery program
- are outside the U.S. on the applicable effective date;
- do not have a valid visa on the applicable effective date; and
- do not qualify for a reinstated visa or other travel document that was revoked under the earlier Travel Ban.
- lawful permanent residents;
- foreign nationals who are admitted to or paroled into the U.S. on or after the applicable effective date;
- foreign nationals who have a document other than a visa (e.g., transportation letter, boarding foil, advance parole document) valid on the applicable effective date or issued on any date thereafter;
- Dual nationals of a designated country who are traveling on a passport issued by a nondesignated country;
- Foreign nationals traveling on a diplomatic visas, NATO visas, C-2/U.N. visas, or G-1, G2, G-3, or G-4 visa;
- Foreign nationals who have been granted asylum in the U.S., refugees who have been admitted to the U.S.; or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.