Immigration
Receipt of Public Benefits May Hinder Admissibility to the U.S.
The Department of State has been scrutinizing individuals applying for green cards under the public-charge bar. Some of these non-U.S. citizens must show that they are not likely to become dependent on the government for cash assistance or long-term care. In making a public-charge determination, the government must look at a person’s age, health, family situation, income, resources, education, and skills, and may also consider an affidavit of support or contract signed by a sponsor promising to support the immigrant. The determination requires a complete consideration of the totality of the circumstances.
Almost two decades ago, the government clarified that the use of services such as health coverage or nutrition assistance would not be considered in the public charge determination – only the receipt of cash assistance for monthly income maintenance or government-funded long-term care could be considered. However, new Department of State instructions now include the use of noncash benefits by applicants, sponsors and family members as a valid consideration in making a public-charge determination. Individuals who have used these benefits should be cautious when applying for immigrant visas at a consulate.
U.S. Citizenship and Immigration Services (USCIS) has not yet taken a similar stance for green card applications filed domestically, and the factors affecting their public-charge determinations remain unchanged. At this point, it is unclear whether USCIS will follow suit.
USCIS Postpones Launch of New Notice to Appear Policy Due to Implementation Issues
Around the same time that USCIS issued its new policy regarding RFEs and NOIDs, noted above, USCIS updated its guidance for referring cases to the immigration court through the issuance of a Notice to Appear (NTA), and thus increasing its enforcement actions to a whole host of cases that normally are not automatically referred for proceedings. Service of the NTA provides a foreign national with notice that deportation proceedings are being initiated and that they are now under the jurisdiction of the immigration courts. Shortly after USCIS announced this new policy, however, its component agencies reported that they could not implement the policy because internal operational guidance had not yet been issued. But, make no mistake: the government will be working to make this new policy operational as soon as it can.
What does this mean and who will be affected? While there are instances where USCIS is required by statute or regulation to issue a Notice to Appear, and has done so, NTAs traditionally have not been issued where, for example, an applicant for adjustment of status is denied and no longer has an underlying nonimmigrant visa status — and thus becomes unlawfully present in the United States. The updated guidance makes clear that USCIS will be more vigilant in not just identifying possible inadmissibility issues, but actually following through with these discoveries and referring the individual to immigration court.
New De-Naturalization Unit Investigating Previously Approved N-400 Applications
While U.S. citizens by birth can never be stripped of their citizenship, naturalized citizens do not enjoy that same security if their citizenship was obtained by fraud or misrepresentation. Sometimes this revocation is warranted. This past January, ICE filed a civil denaturalization complaint against a former Bosnian paramilitary member who engaged in extrajudicial killings during the conflict there. In years past, the uncovering of a former Nazi party member or sympathizer and subsequent denaturalization proceedings typically received positive headlines in the media, as the United States has no desire to become the safe haven for the world’s human rights abusers.
The Trump Administration has taken denaturalization efforts a step further. A new office in Southern California has been tasked with reviewing and referring cases for prosecution and denaturalization. The targets are people who have previously had naturalization applications denied but subsequently create a false identity to obtain citizenship. Concern about this type of fraud preceded the Trump Administration. President Obama oversaw Operation Janus, which exposed the fraud in citizenship applications; in 2016, the Inspector General found that at least 858 people had been awarded citizenship despite having been deported under a different identity. Now, USCIS believes the qualifying cases in the denaturalization unit could reach up to a few thousand.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]