DATE: January 21, 2021
President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System. To read the official summary of the bill, " U.S. Citizenship Act of 2021", please go to: White House Press Release.
DATE: December 23, 2020
On December 7, DHS and USCIS updated their websites to comply with a federal court’s order.
The notices state that, effective December 7, 2020, USCIS is:
The notices also state that USCIS will “take appropriate steps to provide evidence of the one-year extensions of deferred action and employment authorization documents under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.”
DATE: December 9, 2020
Background:
There are two central ways that a foreign national can obtain lawful permanent resident (LPR), commonly known as a "green card." Lawful permanent residents are foreign nationals who are permitted to work and live lawfully and permanently in the United States. Obtaining LPR status typically requires sponsorship, either via a qualifying relative or employer.
Family-Based Immigration:
The family-based immigration category allows U.S. citizens and LPRs to bring certain qualifying family members to the United States. Family-based immigrants are admitted either as "immediate relatives" of U.S. citizens or through the family preference system.
In order to be admitted through the family-based immigration system, a U.S. citizen or LPR sponsor must petition for an individual relative, establish the legitimacy of the relationship, meet minimum income requirements, and sign an affidavit of support stating that the sponsor will be financially responsible for the family member(s) upon arrival in the United States or adjustment to LPR status within the United States. The individual relative also must meet certain eligibility requirements that include demonstrating that they will not become primarily dependent on the government for subsistence.
Employment-Based Immigration:
The United States provides various ways for immigrants with valuable skills to come to the country on a permanent basis. Employment-based immigrants are divided into five preference categories.
They are:
(1) Priority Workers (Extraordinary ability, outstanding professor or researcher, or multinational executive/manager) (EB-1)
(2) Professionals with Advanced Degrees and Exceptional Ability (EB-2)
(3) Professional, Skilled and Other Workers (EB-3)
(4) Special Immigrants (EB-4)
(5) Investors and Employment Creation (EB-5)
Public Charge Defined:
“Public charge” is a ground of inadmissibility. Grounds of inadmissibility are reasons that a person could be denied a green card, visa, or admission into the United States. In deciding whether to grant some applicants a green card or a visa, an immigration officer must decide whether that person is likely to become dependent on certain government benefits in the future, which would make them a “public charge.”
Affidavit of Support:
The Rule requires almost all family-based visa applicants as well as some employment-based applicants to submit Form I-864, Affidavit of Support form, as a condition for satisfying public charge ground of inadmissibility. Affected employment-based applicants are limited to those whose relative is the petitioning sponsoring employer or applicants with a significant (at least five percent) ownership interest in the business entity filing the petition.
The Affidavit of Support is a legally enforceable contract which obligates the sponsor to provide adequate support to the immigrant if need be. Under US immigration law, the sponsor bears the financial responsibility for the immigrant and could potentially be sued by the government and/or the immigrant for support.
After signing an Affidavit of Support, the sponsor’s responsibility is to financially support the immigrant until the he/she:
· Becomes a US citizen
· Earns 40 work quarters credited toward Social Security
· Dies
· Permanently leaves the US
In order to be eligible to sponsor an immigrant for a green card, a person must be able to satisfy the required income levels. The sponsor must show that they have enough income and/or assets to maintain the intending immigrant and the rest of their household at 125% of the current Federal Poverty Guidelines.
New Support Requirements:
As of Feb. 24, 2020, a new public charge rule became effective. The new rule implemented a "totality of the circumstances" test, where the Affidavit is Support is now only ONE factor in the determination. The USCIS Adjudicator will consider whether the applicant is more likely than not to receive public benefits. Since the public charge determination is prospective in nature, the question is whether the applicant for adjustment of status or immigrant visa is "likely at any time to become a public charge." A public charge finding will result in the applicant being inadmissible to the U.S.
USCIS adjudicators will apply a complex totality of circumstances test taking into account a broad range of positive and negative factors. The central factors examined are: Age; Health; Family status; Education and skills; and Financial status (assets, liabilities, and resources.) For each factor, the rule identifies a “standard,” which articulates how that factor is to be considered, and the evidence that will be considered in connection with the “standard.”
One of heavily weighted negative factor would be if, for example, the intending immigrant has received public benefits as defined below. Due to the totality test, even if an applicant has not received such benefits, he/she may still be inadmissible on public charge grounds.
Which Public Benefits Are Problems for Public Charge?
1. Any Federal, State, local or tribal cash assistance for income maintenance
2. Supplemental Security Income (SSI)
3. Temporary Assistance for Needy Families (TANF)
4. State General Assistance Programs (GA) (Federal, state, or local cash benefit programs)
5. Supplemental Nutrition Assistance Program (SNAP, formerly called “Food Stamps”)
6. Section 8 Housing Assistance under the Housing Choice Voucher Program
7. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
8. Public Housing under the Housing Act of 1937
9. Federally Funded Medicaid (Non-emergency)
Exceptions:
DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another, including household members of the applicant. That is, the applicant’s children may receive public benefits.
Current state of new legislation:
On 12/02/2020, the U.S. Court of Appeals for the Ninth Circuit upheld preliminary injunctions (issued by Northern District of California and the Eastern District of Washington) blocking implementation of the "public charge" rule.
In its order, however, the panel majority vacated the Eastern District of Washington’s entry of a nationwide injunction. At this time, it remains unclear whether the Eastern District of Washington will need to revisit its order to address the scope of relief or whether the preliminary injunction will simply apply to the plaintiff states, which include CA, DC, ME, OR, PA, WA, CO, DE, IL, MD, MA, MN, NV, NJ, NM, RI, HI.
CAVEAT: The information provided herein is current as of (date of posting) and is subject to change, based on ongoing litigation.
Attorney Advertising. © Krasnogor & Krasnogor LLP 2021