1 / 51

UCLA David Geffen School Of Medicine Consular/Immigration Update 2019

UCLA David Geffen School Of Medicine Consular/Immigration Update 2019. AVI FRIEDMAN, ESQ. 2019. Avi Friedman, Esq. Partner at Wolfsdorf Rosenthal LLP UCLA, B.A. (1988-1992) Loyola Law School, J.D. (1992–1995)

osric
Download Presentation

UCLA David Geffen School Of Medicine Consular/Immigration Update 2019

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. UCLA David Geffen School Of MedicineConsular/Immigration Update 2019 • AVI FRIEDMAN, ESQ. 2019

  2. Avi Friedman, Esq. Partner at Wolfsdorf Rosenthal LLP UCLA, B.A. (1988-1992) Loyola Law School, J.D. (1992–1995) U.S. News-Best Lawyers Los Angeles Immigration Law “Lawyer of the Year” 2014 & 2016 The Southern California Super Lawyers (2010-2014) Who’s Who of Corporate Immigration Lawyers “expert on consular issues” Who’s Who Legal “excellent in-person attorney/client representation at U.S. consular posts”

  3. General considerations in advising students and scholars seeking a new or renewal of a nonimmigrant visa Nonimmigrant visa processing for third country nationals (TCNs) in Mexico and Canada Trump Travel Ban Extreme Vetting Procedures - Form DS-5535 - Social Media DOS 90 Day Rule Visa Revocations/Denied Admission Impact of DUIs Overview of Security Clearances/Administrative Processing Unlawful Presence – What is the current policy? Consular Re-adjudication of Petitions & 214(b) Denials Public Charge Rule Topics Covered

  4. Each NIV application is a detailed exploration of the individual’s entitlement to admission to the U.S. in a particular nonimmigrant category, even if a renewal. It is never a routine “stamping” and there is always possibility for delay or denial. Each application for a new entry to the U.S. is a whole new ballgame—anything can happen—even if the person has entered in the same category many times before. The CBP officer determines admissibility with each entry. In advising, never say “you will get it,” or “you will get back in.” “May” is more appropriate. Visa Applications

  5. Non-immigrant Visa Applications Plan Far Ahead to Schedule a Visa Interview Delays in Appointment Scheduling & Visa Issuance - there can be unexpected delays at any consular post, try to plan an NIV applications with at least a few extra days to spare U.S. Consular Posts: http://www.usembassy.gov/ Visa Wait Times: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/wait-times.html Applicants between 14-79 usually require an in-person interview Some Consular Posts have Interview Waiver Process

  6. The Visa Interview Process Security Screening Initial Intake Biometrics Visa Interview Next Steps – passport return, administrative processing, or denial.

  7. What is The Role of the Consular Officer? DS-160 Review Visa Interview – Questions and Document Review Emphasis placed on documents varies by consular post Based on local country conditions (some countries have high incidence of fraudulent documents) Admissibility Review Administrative Processing

  8. Where Can a NIV Applicant Apply? The country of nationality or habitual residence (“home” country) is obvious choice as consular officers there have intimate knowledge of country conditions, documents, etc. TCN’s may also qualify to process in a third country (neither the United States, nor their “home country”), in several instances.

  9. TCN Applications Consular Officer takes into account: Is there a “residence abroad” requirement (J, F)? Could there be 214(b) or fraud issues (applicant from developing country or high fraud post)? Will it impose hardship on the applicant to return to home country (is it near post where applying; does applicant have plans to go there soon?) Does the applicant’s reason for applying there make sense? Is this a renewal or first time visa in this category?

  10. Mexico and Canada Mexico and Canada have long standing policies of accepting TCN NIV applicants. Posts in each country have differing policies. Mexico and Canada are foreign countries, and the TCN may need a visa to cross the border.

  11. Mexico: Who Can Apply? TCNs can apply at all 10 Mexican consular posts. TCN who resides in Mexico on an FM2 or FM3 (study, work, research) TCN who seeks to renew their U.S. visa in the same letter category (other than B-1/B-2 and H-2) Same employer TCN who is visiting Mexico and who has lost or had their passport with valid U.S. visa stolen

  12. Mexico: Who Can’t Apply? Mexico will not accept persons who in the U.S.: violated status, overstayed, entered by fraud. B-1/B-2 seeking to change to any category. H-2A or H-2B Visa Waiver seeking to change to any category.

  13. Mexico: ASC In Mexico, most applicants must make a separate appointment at an off-site “Applicant Service Center” (ASC) to submit biometrics prior to the visa interview. Generally, not possible to schedule biometrics and visa interview on same day

  14. Mexico: Getting There A foreign visitor traveling to Mexico as a tourist, on business, or in transit to another country will not require a Mexican visa, regardless of their country of citizenship, as long as they have a valid passport and a valid U.S. visa. Expired U.S. Visa – if applying to renew a U.S. visa, MUST have a Mexican visa.

  15. Mexico: Travel Concerns Most recent travel warning for Mexico: https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/mexico-travel-advisory.html Mexico – Country Specific Information: http://travel.state.gov/content/passports/en/country/mexico.html

  16. Canada: Who Can Apply? Most Canadian posts accept TCN applicants. Will NOT accept: Out of status, overstays, entry without inspection or by fraud Can Apply but Risky Cases: Applicants for B-1/B-2 visa B-1/B-2 or VWP initial entrants to U.S. applying in different category

  17. Canada: Getting There See this list for nationalities that require a visa to enter Canada: https://www.canada.ca/en/immigration-refugees-citizenship/services/visit-canada/entry-requirements-country.html Visa-exempt foreign nationals who fly to or transit through Canada require an Electronic Travel Authorization (eTA). Exceptions include U.S. citizens and foreign nationals with a valid visa. List of visa offices outside Canada: http://www.cic.gc.ca/EnGLIsh/information/offices/missions.asp Key documents - appointment confirmation notice, U.S. immigration documents, evidence of funds to cover temporary stay in Canada

  18. General Conditions: Only applies to individuals who are: (i) outside of the U.S. on the day the travel ban was in effect, and (ii) who do not have a valid visa on the day ban in effect, and (iii) who have not obtained a waiver under Section 3(c) of the Proclamation Trump Travel Ban 3.0

  19. Does NOT apply to: Lawful permanent residents (green card holders); Individuals admitted or paroled into the U.S. on or after the effective date; Those with a document other than a visa that allows them to travel to the U.S., if the document is dated on or after the effective date; Dual-nationals traveling on a passport from a non-designated country; Individuals granted asylum; Refugees already admitted to the U.S.; or Individuals granted withholding of removal, advance parole, or protection under the Convention against Torture Trump Travel Ban 3.0

  20. Iraq: not listed as one of the countries, but the Proclamation states that DHS recommended "that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States." N. Korea: Immigrant and nonimmigrant entry is suspended for N. Korean nationals Venezuela: The entry of officials of government agencies of Venezuela involved in screening and vetting procedures and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is suspended. Additionally, nationals of Venezuela who are visa holders are subject to additional measures. Certain Venezuelans traveling on diplomatic visas are not affected by this order. Iran: Immigrant and nonimmigrant entry are suspended for Iranian nationals except for those with F, J, or M visas. Those with F, J, or M visas subject to “enhanced screening and vetting requirements.” Trump Travel Ban 3.0

  21. Libya: Immigrants and nonimmigrants on business (B-1), tourist (B-2), business/tourist (B-1/B-2) visas are suspended Somalia: immigrant visas are suspended for Somali nationals Non-immigrant visas are permitted, subjected to heightened screening. Syria: Immigrant and nonimmigrant entry is suspended for Syrian nationals Yemen: All immigrant visas and nonimmigrant business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas are suspended Trump Travel Ban 3.0

  22. If from one of the countries covered by the travel ban and do not yet have a valid U.S. visa, cannot obtain a visa unless qualify for a waiver. Consular officers may, on a case-by-case and discretionary basis, grant a waiver to affected individuals for certain reasons. Waiver Requirements: denying entry to the U.S. would cause the foreign national undue hardship; admission would not pose a threat to the national security or public safety of the United States; and entry would be in the U.S. national interest. Trump Travel Ban 3.0 - Waivers

  23. Extreme Vetting: • In a May 4, 2017 Federal Register notice [82 FR 20956], DOS proposed creating a new form to standardize the collection of additional information from immigrant and nonimmigrant visa applicants "who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities." • Copy of Form DS-5535 – Supplemental Questions for Visa Applicants: • http://www.nafsa.org/_/File/_/amresource/DS5535.pdf

  24. Extreme Vetting • If a consular officer determines that a visa applicant warrants this additional scrutiny, the applicant will be instructed to provide the following information on Form DS-5535: • Travel history during the last fifteen years, including source of funding for travel; • Address history during the last fifteen years; • Employment history during the last fifteen years; • All passport numbers and country of issuance held by the applicant; • Names and dates of birth for all siblings; • Name and dates of birth for all children; • Names and dates of birth for all current and former spouses, or civil or domestic partners; • Social media platforms and identifiers, also known as handles, used during the last five years; and • Phone numbers and email addresses used during the last five years.

  25. Extreme Vetting – Social Media • DOS now requires all visa applicants to list their social media accounts. Digital information scrutinized not only for security reasons, but also to make sure facts on a person’s social media account match what’s stated in the application. • Must provide social media platforms and identifiers, also known as handles, used during the last five years • Do not need to provide passwords - DHS personnel “will review information on social media platforms in a manner consistent with the privacy settings the applicant has chosen to adopt for those platforms. Only that information which the account holder has allowed to be shared publicly will be viewable by DHS.” • Applicants should ensure that their information remains consistent and accurate across their various applications and social media accounts. The government retains records of past visa applications and is increasingly cross-referencing them when new applications are filed. • Complete application forms carefully since social media may disclose inconsistencies with employment location, position, or even place of residence.

  26. DOS Change of 30/60 Day Rule in the FAM DOS updated the Foreign Affairs Manual (FAM) with new guidance on the term “misrepresentation” for purposes of determining inadmissibility under INA §212(a)(6), which provides: Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act, is inadmissible. Specifically, 9 FAM 302.9-4(B)(3)(g) and (h) have been substantially revised the “30/60 Day Rule” has been eliminated, and new sections regarding status violations or “inconsistent conduct” within 90 days of entry, and after 90 days of entry have been added. The changes articulated in the FAM can have potentially significant consequences for individuals who apply for adjustment of status or change of status after entering the U.S. on a nonimmigrant visa or temporary basis.

  27. DOS 90 Day Rule What Activities Will Trigger the Application of the 90-Day Rule and How Has This Changed from the 30/60-Day Rule? Though the wording is slightly different, both the former FAM guidance and the new FAM guidance describe the following actions that are sufficient to trigger the application of the rule: Engaging in unauthorized employment; Enrolling in a full course of academic study without authorization and/or the appropriate change of status; A nonimmigrant in a status prohibiting immigrant intent marrying a USC or LPR and taking up residence in the United States. Undertaking any other activity for which a change of status or an adjustment of status would be required, without changing or adjusting status. At What Point Does the 90-Day Rule Create a Presumption of Misrepresentation and How Has This Changed from the 30/60 Day Rule? Under the new 90-Day Rule, a presumption of willful misrepresentation will be applied to a person who violates his or her nonimmigrant status or engages in conduct inconsistent with that status, as described above, within 90 days of entry. This is significantly different from the prior rule, which allowed for such a presumption only if the status violation or conduct occurred within 30 days of entry. Under the prior rule, if the status violation or conduct occurred more than 30 days but less than 60 days after entry, no presumption of misrepresentation would apply but if the facts gave rise to a “reasonable belief” that the individual misrepresented his or her intent, he or she would be provided the opportunity to present evidence to the contrary.

  28. What if the Conduct Occurs More Than 90 Days After Entry into the U.S.? Under the new 90-Day Rule, no presumption of willful misrepresentation arises if the individual violates status or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry into the United States. However, if the facts of the case give rise to a “reasonable belief” that the individual misrepresented the purpose of his or her travel at the time of the visa application or application for admission, rather than providing the opportunity to present evidence to the contrary, the Consular Officer must request an Advisory Opinion. The FAM is Guidance for DOS Consular Officers. Does This Apply to USCIS Officers Who are Reviewing Adjustment of Status Applications? The USCIS Policy Manual was updated in March 2018. The 90-day rule is not a “rule” in the sense of being a binding principle or decision​. ​ Simply an analytical tool that may assist DOS officers in determining whether an applicant’s actions support a finding of fraud or misrepresentation in a particular case. DOS 90-day rule is not binding on USCIS. Officers should continue to evaluate cases for potential fraud indicators and, when appropriate, refer cases to Fraud Detection and National Security according to existing procedures. DOS 90 Day Rule

  29. How Might This Impact the Adjudication of Change of Status Applications Filed within 90 Days of Entry? there are risks of changing nonimmigrant status within 90 days of entry. even if a change of status application filed within 90 days of entry is approved by USCIS, visa applicants should be prepared to address questions about whether or not they misrepresented their intentions. Delayed adjudications make a COS to F-1/J-1 very difficult Require Bridge Application to Maintain Status DOS 90 Day Rule

  30. Nonimmigrant Visa Revocations:9 FAM 403.11-5(B) Revocation of visa will occur if consular officer determines: The alien is not eligible for the particular visa classification (this includes ineligibility under INA 214(b)); The alien has been issued an immigrant visa; The visa has been physically removed from the passport in which it was issued; or The alien is subject to a “Watchlist Promote Hit” for an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years, Process: Notify the alien of the intention to revoke the visa; Allow the alien the opportunity to show why the visa should not be revoked; and Request the alien to present the travel document in which the visa was issued.

  31. Prudential Revocations:9 FAM 403.11-5(B) Although consular officers generally may revoke a visa only if the alien is ineligible under INA 212(a) or is no longer entitled to the visa classification, DOS may revoke a visa if an ineligibility or lack of entitlement is suspected, or for virtually any other reason.  This is known as a “prudential revocation.”  DOS may revoke a visa when it receives derogatory information directly from another U.S. Government agency, including a member of the intelligence or law enforcement community With the exception of DUIs, a consular officer may not revoke a visa when an alien is present in the U.S. Why the exception for DUIs? Driving under the influence is indicative of a possible INA 212(a)(1)(A)(iii) ineligibility for a possible physical or mental disorder with associated harmful behavior.

  32. Prudential Revocations for Driving Under the Influence: 9 FAM 403.11-5(B) Consular officers have authority, without referring case to DOS, to prudentially revoke a visa on the basis of a potential INA 212(a)(1)(A)ineligibility when a “Watchlist Promote Hit” appears for an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years.  Does not apply when the arrest has already been addressed within the context of a prior visa application, or to other alcohol related arrests such as public intoxication that do not involve the operation of a vehicle.  For individuals in the U.S., revocations based on DUI arrests are effective immediately upon the alien's departure from the United States.

  33. DUI – Prudential Revocations RESULTS Nonimmigrants arrested for a DUI offense, whether or not ultimately convicted, will be notified by the consular post that issued the visa that it has been cancelled. The issuing post will attempt to contact the nonimmigrant through the phone numbers listed on the DS-160, followed by e-mail, followed by snail mail as a last resort. ICE is Notified but DOS does not recommend action. Person is ineligible to return to the U.S. until cleared by a U.S. designated civil surgeon abroad (but will consular officer refer case, or just deny?) Consular officer unlikely to issue a visa when there is a pending criminal case State judges hearing DUI cases need nonimmigrant to be present, will issue warrant for failure to appear

  34. Visa Revocation - Effect on Status http://j1visa.state.gov/wp-content/uploads/2016/09/2016-03-GD-Visa-Revocation-FINAL-Sept-2016.pdf (regarding J’s but applicable to all nonimmigrants) Revocation does NOT mean you should terminate the SEVIS record Revocation of the principal’s visa does not necessarily affect dependents, unless the principal is unable to return to the US. Revocation of the visa does not affect status in the U.S. Revocation takes effect once departure from U.S.

  35. Visa Cancellations and Revocations – Especially for Travel Ban Cases • Although PP 9645 does not apply to Iranian nationals who seek to enter the United States on an F, M, or J visa, recently there have been anecdotes over the past few months that Iranian students have been denied boarding international flights or had their F-1 visa cancelled. • Others have been denied admission by U.S. Customs and Border Protection (“CBP”). • Many of these students had been issued an F-1 visa after an extended period of administrative processing. • Reminder, a visa does not guarantee admission into the United States; it merely allows a foreign citizen to travel to a U.S. port-of-entry, where a CBP immigration inspector authorizes or denies admission to the United States.

  36. Security Clearances Generally reflect concerns about: Terrorism Counter Intelligence Proliferation of Weapons Criteria are classified

  37. No way of knowing definitely in advance whether or not an applicant will be subject to a clearance, but the following are possible indicators that a clearance may arise: Prior delays for visa issuance at a consular post Prior delays with CIS with petition adjudication Prior POE problems Unusual travel patterns Criminal issues (including DUI) Common name (Muhammad Khan; Muhammad Ali; Maria Ruiz) Country of Birth/Citizenship Can a Security Clearance be run in advance with advent of DS-160? Security Clearances

  38. Security Clearances Visas Mantis “Sensitive Technology” clearance: based on whether the applicant is involved in any of the categories found on the Critical Fields List (CFL) of DOS’ Technology Alert List (TAL). “Dual-use” applications of seemingly benign technologies. Extension of Mantis Validity: Mantis checks are now valid for two years for H, L, and O visas; four years for F’s and J’s. Change of field, ex., engineering to nuclear physics, can result in new Mantis check. Validity does NOT guarantee no new check.

  39. Donkey Name “hit” based on non-criminal issue. Often slow, like its namesake! Security Clearances

  40. SAO Information For most SAO’s, required information is provided in the DS-160 online application. The interviewing officer will ask the applicant to provide additional information as needed. If an applicant is subject to additional processing, some posts will cancel/suspend all valid U.S. visas until the processing is complete. Certain candidates (MANTIS) will also need to provide: Complete resume (and, if accompanying the applicant, the spouse’s resume) Complete list of publications of the applicant (and, if accompanying the applicant, the spouse’s publications) List of references in the applicant’s country of birth or residence Detailed description of the research or work the applicant will do, or is doing, in the U.S. Letter of invitation from the U.S. sponsor Letters of recommendation from a U.S. sponsor or from abroad Letters of support from the financial sponsor Detailed itinerary for B1/B2 applicants

  41. Overdue Admin Processing/SAO’s The National Visa Center (NVC) now handles inquiries on NIV cases If case pending for over 60 days, call the NVC: (603) 334-0888 DOS can expedite a security clearance if there is a dire medical emergency, a significant U.S. government interest, or a humanitarian concern. It is advisable to submit an expedite request letter from the petitioner or sponsor, detailing the emergent reasons for the applicant’s entry to the United States, to the Consular Officer at the post where the visa application was submitted.  Is Congressional assistance helpful?

  42. USCIS Unlawful Presence Memo USCIS U/P Memo effective August 9, 2018 9 FAM 302.11-3(B)(1) updated to reflect the new guidance. Travel vs. Reinstatement – issues to consider: - Triggering a bar? - Valid Visa -- Impact of SEVIS Record Termination/Hit -- CBP Discretion - Need to re-apply for a visa On May 3, 2019, the U.S. District Court for the Middle District of North Carolina issued an injunction. Due to the nationwide preliminary injunction, USCIS is preliminarily enjoined from applying the new policies to F, J, and M. DOS has not yet provided guidance on whether underlying status violation that triggers the U/P under USCIS policy also triggers the automatic cancellation of a nonimmigrant visa under INA Section 222(g)

  43. Consular Re-adjudication of Petitions 9 FAM 402.10-9(A) (U) Effect of an Approved Petition on H-1B Visa Adjudication An approved petition is considered prima facie evidence that the requirements for visa classification, which are examined by a USCIS adjudicator during the petition process, have been met. However, the approval of a petition by USCIS does not relieve the alien of the burden of establishing visa eligibility. While the majority of petitions are valid, you should confirm that the facts in the petition are true during the visa interview. Remember that USCIS interacts solely with the petitioner; the interview is the first point during the petition-based visa process where a USG representative has the opportunity to interact with the beneficiary of the petition. Additionally, consular officers overseas benefit from cultural and local knowledge that adjudicators at USCIS do not possess, making it easier to spot exaggerations or misrepresentation in qualifications. Finally, most H-2A and H-2B applicants are petitioned as unnamed beneficiaries. You must suspend action on an alien’s application and submit a report to the approving DHS office if you know or have reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved. For more information on refusing H visas see 9 FAM 601.13.

  44. Consular Re-adjudication of Petitions 9 FAM 402.13-5(B) Approved Petition is Prima Facie Evidence of Entitlement to O Classification You should not require an applicant seeking an O visa to present an approved Form I-129, Petition for a Nonimmigrant Worker, or evidence that the O petition has been approved (a Form I-797, Notice of Action). All petition approvals must be verified through PIMS or through the Person Centric Query Service (PCQS), in the CCD under the Cross Applications tab. Once you have verified approval through PIMS or PCQS, consider this as prima facie evidence that the requirements for O classification, which are examined in the petition process, have been met. Other than instances involving obvious errors, consular officers do not have the authority to question the approval of O petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved O petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the O petition was filed. On the other hand, the approval of a petition by DHS does not relieve the alien of the burden of establishing visa eligibility in the course of which questions may arise as to his or her eligibility to O classification. If you develop information during the visa interview (e.g., evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. Disagreement with DHS interpretation of the law or the facts, however, is not sufficient reason to ask DHS to reconsider its approval of the petition. As a matter of policy, consular officers should refrain in most situations from requesting applicants to perform as a method to verify qualifications. A request for performance is warranted only in rare cases, as part of an anti-fraud investigation.

  45. 214(b) Denials • What does a visa denial under INA section 214(b) mean? • Applies only to nonimmigrant visa categories. • Applicant did not sufficiently demonstrate to the consular officer that they qualify for the nonimmigrant visa category applied for; and/or • Did not overcome the presumption of immigrant intent, required by law, by sufficiently demonstrating strong ties abroad that will compel the applicant to leave the United States at the end of their temporary stay. • Ties abroad does not apply to H-1B and L visa applicants.

  46. How to Deal With Visa Denials? • Debrief Applicant ASAP • Review Denial Letter from the Post • Ask for Q & A from Applicant, Officer’s Name/Window Number, and what documents were reviewed • 221(g) vs. 214(b) • Request for Reconsideration by Consular Chief (egregious denial) • Consular Non-Reviewability • Limited Information/Documents Available via FOIA • Request an Advisory Opinion for Issues of Law (not fact) • Border Post Denials – Can the applicant re-enter the U.S. with a valid visa, on a Visa Waiver, or with a D-4 Waiver?

  47. Public Charge Rule • On August 14, 2019, DHS published a final rule effective October 15, 2019 that prescribes "how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act because he or she is likely at any time to become a public charge. • The public charge rule is being challenged in federal court, including by many states. • USCIS is in the process of revising several forms to add questions relating to the public charge regulation. USCIS will accept the current unrevised editions of these forms only if they are postmarked on or before October 14, 2019. • Under the new rule at 8 CFR 212.21(a), "public charge" means an alien who receives one or more public benefits, as defined at new 8 CFR 212.21(b), "for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)."

  48. Public Charge • The new DHS regulations govern two principal areas • Nonimmigrants applying for change or extension of status must demonstrate that "since obtaining the nonimmigrant status" they seek to extend or change, until the date USCIS adjudicates the COS or EOS application, they have not received one or more of the listed public benefits over the designated duration threshold. • Applicants for admission to the United States as well as applicants for adjustment of status must show that they are not likely at any time in the future to become a public charge, a more burdensome standard. • DHS must consider the totality of the circumstances and make a prospective, forward-looking determination of whether someone is likely at any time in the future to become a public charge as defined in 8 CFR 212.21.

  49. Public Charge • The public charge ground of inadmissibility at INA 212(a)(4) [8 USC 1182(a)(4)] provides in general that: • "Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible." • The statute then directs DOS and DHS to consider at a minimum the following factors when making a public charge determination: age, health, family status, assets, resources, and financial status, and education and skills. • Under the new rule, Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground. • DHS will only consider public benefits received on or after October 15, 2019 for petitions or applications postmarked on or after that date.

  50. Public Charge • It is unclear how, if at all, the new public charge rules will apply to F-1 reinstatement applicants. • Although the final rule did not amend the F-1 reinstatement regulations, it may also be possible that USCIS could apply the COS/EOS public charge determination to reinstatement applicants, since F-1 students also use Form I-539 to apply for reinstatement. • It could also be possible that USCIS might consider a reinstatement applicant to be an "applicant for admission," and apply the more burdensome "more likely than not at any time in the future to become a public charge" standard.

More Related