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New State Dept Public Charge Rule in Effect Shortly and Will Apply to Almost All Immigrant Visa Applications

by Heidi Meyers | Dec 30, 2019 | Articles

On October 11, 2019, the US Department of State (“State Dept”) published a new public charge rule, to go into effect in 60 days, which applies to almost all immigrant visa applications. See, 84 Fed.Reg. 198, at 54996-55015. The new State Dept rule closely tracks the DHS public charge rule, which is currently enjoined by a federal court. For the time being, all applicants for adjustment who apply within the US to USCIS for their greencards are still subject to the old rule, which relies on the affidavit of support and a mathematical formula.

Even though the federal court has prohibited DHS from implementing their public charge rule until a final decision on the case, the State Dept is a separate government agency, and the federal court injunction does not apply to it. The State Dept processes immigrant visas for foreign nationals outside the U.S. Once they have an interview at the US Consulate abroad and receive their immigrant visa, they then enter the US as permanent residents.

The Consular Officer (“CO”) must consider all positive and negative factors in the “totality of the circumstances”, to determine if the applicant is likely to become a public charge “at any time”. The State Dept rule closely tracks the new DHS rule, and creates positive and negative factors for the Consular Officer to consider. Factors include the following:

1) Health and health insurance are prominent among the factors. Having health insurance (or prospect of obtaining private health insurance) or the “financial resources to pay for reasonably foreseeable medical costs” is repeatedly underlined as important, when discussing various factors. The State Dept considers as a heavily weighted negative factor, should the applicant require “extensive medical treatment or institutionalization or the condition will interfere with the alien’s ability to provide care for him-or herself, to attend school or to work” and lacks health insurance or the resources to pay for medical care. Chronic medical conditions or existing medical conditions will also require an applicant to obtain health insurance, to avoid it being a strongly negative factor.

In addition to the State Dept rule, President Trump’s Presidential Proclamation, issued October 4th, to take effect November 3, 2019, requires all immigrant visa applicants to prove they will be covered by health insurance within 30 days of their entry into the U.S.

2) Age, being between the ages of 18 and 62 is a positive factor, while being under 18 or over 62 is a negative factor. The support provided to a minor by a parent or legal guardian may offset this negative factor. The CO must consider whether the applicant’s age makes him or her unlikely to obtain work or create higher potential health care costs.

3) Education and skills. The applicant’s level of education, work history, any job skills, certifications or licenses and English proficiency.

4) The size of the household, “family status”. Aside from a few vague words, it is unclear how consular officers are to judge different family sizes. How many children can a family have before it is ‘too big’? Would a single parent household be considered ‘too small’? Again, because the language is vague, different COs will interpret it in very different ways.

5) Assets, resources and financial status. The rule restates the prior test, which is whether household income is at least 125% of the poverty level, as well as how to counts assets towards the income requirement.

However, this part of the rule is made more complicated because in another section, having an income of at least 250% of the federal poverty level is considered a heavily weighted positive factor. Will the 250% become the new standard, rather than the 125%? It is unclear how to reconcile these two aspects of the rule.

6) Not working or being a fulltime student if you have work authorization, lacking a work history, lacking prospects of future employment, are all negative factors. Being a primary caregiver for a family member is considered a positive factor, and it is unclear how these two factors should be balanced one against the other.

7) Public benefits. Not only if the applicant has actually received public assistance, but also whether they have ever even applied (including those who were denied public benefits and never actually received them).

A heavily-weighted negative factor is if the applicant has received or been approved to receive, one or more public benefits for more than 12 months in the aggregate during any 36-month period, or two benefits during a six-month period beginning October 15th 2019, or 36 months prior to adjudication of the applicant’s immigrant visa, whichever is later.

In the past, only cash public assistance was considered. Now the State Dept will consider many forms of non-cash public assistance including any federal, state, local or tribal cash assistance; SSI (Supplemental Security Income); TANF (Temporary Assistance for Needy Families); Food stamps – supplemental nutrition assistance program; Public housing and Section 8.

There are exceptions that allow pregnant women (up to 60 days after giving birth) and children under 21 to receive Medicaid, emergency medicaid, Medicaid received by the disabled; school-based services up through high school. There is an exemption from the public benefit definition for enlisted members of the US Armed Forces, or in the Ready Reserve, and their immediate family members

8) Applying for a USCIS fee waiver is a negative factor. Thus, if you have applied for a USCIS fee waiver in the past, this may be considered a negative factor. Only fee waiver applications after the October 15th effective date will be considered.

The new State Dept rule changes the public charge determination from an objective mathematical formula based on household size and total income, to a subjective decision, “in the opinion of” the CO, using numerous factors, and no clear path on how to apply or balance one factor against another. This will lead to unpredictable, subjective, wildly different decisions and a huge increase in denials of immigrant visas based upon the public charge ground of inadmissibility. It is another way to deny many meritorious immigrant applications, separating families and punishing immigrants for their very existence.

You can be deported from the US for smuggling your own child, and even if you were paid nothing?

by Heidi Meyers | Dec 30, 2019 | Articles

You can be barred from the US for smuggling, even if of your own child, and even if you were not paid. The Trump administration is going after ordinary immigrants with both criminal and civil smuggling charges, even if they are not connected to professional criminal smugglers. However, there is a waiver.

In 2017, the Trump administration hatched a plan to prosecute the parents and family members of children who were smuggled to the US. There are various criminal grounds under which one can be prosecuted for smuggling. See, for example, “Documents detail ICE campaign to prosecute migrant parents as smugglers”, https://theintercept.com/2019/04/29/ice-documents-prosecute-migrant-parents-smugglers/. Oddly enough, the Trump administration, in a cruel twist, has focused on individual parents and family members, and has not devoted much in the way of resources to stopping professional criminal smuggling networks. See, “Despite Trump’s tough talk about migrant smugglers, he’s undercut efforts to stop them”, https://www.propublica.org/article/trump-migrant-smugglers-border-patrol-homeland-security-undercut-efforts-to-stop-them

This article will not review the criminal charges for smuggling, we will only review the charges of inadmissibility and deportability/removability for smuggling. Many parents and other family members have been charged by ICE with smuggling, in order to deny them immigration benefits and deport them from the U.S.

The ground of inadmissibility for smuggling, Section 212(a)(6)(E) of the Immigration and Nationality Act (INA) bars from the US any foreign national “who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law”. The statute does not require any remuneration. If you help a friend or relative enter the US illegally, you may be charged with smuggling even though you did not get paid anything and received no compensation. The statute is very broad and covers ordinary people, not just professional smugglers. Notice that the statute includes smuggling “at any time”; there seems to be no time limit to how far in the past the smuggling occurred.

There is also a ground of deportability for smuggling, which does have time limits. The ground of deportability would apply to people who have already entered the U.S., as well as to permanent residents. The ground of deportability (also called removability), Section 237(a)(1)(E), states: “any alien who (prior to the date of entry, at the time of any entry, or within 5 years of the date of any entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is deportable”. Again there is no element of remuneration. However, there is a time limit. If someone has been residing in the U.S. for more than five years, has not traveled, and then commits smuggling, the individual is not deportable.

The U.S. Consulates have been aggressive in questioning applicants for immigrant visas about any possible smuggling issue, particularly if they brought their children to the U.S. Unfortunately, many would-be immigrants who have previously lived in the U.S. for long periods of time, obtained an unlawful presence waiver and then traveled abroad for their interview with the US Consulate to get their immigrant visa and come back as a permanent resident are shocked to find their immigrant visas denied because of a smuggling charge.

It is enough to sustain a smuggling charge if the parent paid a smuggler, or made arrangements, to bring their child to the U.S., even though the parent himself did not actually transport the child across the border. See, for example, Ramos v. Holder, 660 F.3d 200, 203-206 (4th Cir. 2011).

However, smuggling charges have not been sustained if the applicant did not have any plan prior to the smugglee’s entry to bring the person to the US. For example, the AAO held in an unpublished decision that an applicant who picked up his brother after the brother had already entered the US. did not commit smuggling. See, In re [name redacted], 2014 Immigration Reporter LEXIS 4288 (AAO Oct. 22, 2014). The BIA has also held that where the person picks up a smugglee near the border, “the focus is on whether there was pre-arrangement”. See, In re Maria Isabel Guzman-Sanchez, A087-118-694 (BIA Oct. 23, 2013).

The good news is that there is a waiver for this ground of inadmissibility, Section 212(d)(11), which is discretionary and may be granted for “humanitarian purposes, to assure family unity, or when it is otherwise in the public interest”, in the case of a permanent resident who has traveled out of the US, and who is otherwise admissible as a returning resident. It also waives inadmissibility for foreign nationals with an immediate relative petition (through their U.S. citizen child, spouse or parent), if the smuggling was only of their spouse, parent, son or daughter.

There is a similar waiver of the ground of deportability for permanent residents, INA 237(a)(1)(E)(ii) and (iii). So, it is possible to overcome a charge of smuggling.

PERM Labor Certification for Medical Doctors

by Heidi Meyers | Dec 30, 2019 | Articles

For physicians, as well as for all other foreign nationals, obtaining a green card through the PERM labor certification process actually has three steps and three separate applications: 1) First, is the PERM labor certification, filed with the US Department of Labor; 2) Second, the petition for alien worker, Form I-140 filed with USCIS and 3) Third, the application for adjustment to permanent residency, Form I-485, also filed with USCIS when the priority date is current.

In the first step, the PERM labor certification, the employer has to show that there is a shortage of US workers to do the job. The United States does have a shortage of doctors. Partly because of our aging population, the US expects to have a shortage of 46,900 to 121,900 doctors by 2032, according to the Association of American Medical Colleges. See, https://www.cnbc.com/2019/09/06/americas-aging-population-is-leading-to-a-doctor-shortage-crisis.html.

The employer has to settle on a job description and requirements. However, the employer cannot include requirements which the doctor employee does not already have at the time the application is filed. So, the PERM cannot include requirements that the foreign national doctor anticipates obtaining later, even if in the near future. For example, if the PERM labor certification application includes the requirement that the doctor must be board certified or board eligible (BC/BE), these requirements necessarily include graduate medical training. However, if the physician beneficiary is still in graduate medical training when the PERM is filed, then the application will be denied because the beneficiary foreign national did not meet the employer’s requirements at the time of filing.

If the doctor has been educated abroad rather than in the US, he or she must have their degree recognized by the Educational Commission on Foreign Medical Graduates (ECFMG) and a state medical board as being equivalent to an MD from the United State.

Additionally, the position must be permanent. The US Dept of Labor does not consider graduate medical training positions to be permanent. An employer cannot file a PERM for residency or fellowship positions.

Then, the employer has to file a Prevailing Wage Request with the US Dept of Labor. The prevailing wage is the average wage paid to US workers in the same occupation in the same geographical area, with wages divided up by level of experience, from entry-level positions, Level I, to the most experienced positions, Level 4. The US Department of Labor uses different wages depending upon the doctor’s specialty. For example, there are different wage tables with widely varying wages for gynecologists/obstetricians, family and general practitioners, anesthesiologists, internists, psychiatrists, surgeons, podiatrists, as well as other specialties. It is currently taking the US Dept of Labor about three months to issue prevailing wage determinations.

The employer then has to advertise the job at the higher of either the prevailing wage or the actual wage. If the foreign national’s actual wage is higher than the the wage listed in the prevailing wage determination, the employer has to advertise the position using the higher actual wage. The employer has to place a 30-day job order with the State Dept of Labor, post a Notice of Filing in a conspicuous place in the workplace, and run two Sunday ads in the newspaper of general circulation, and the employer must choose the paper with the largest circulation for their area. Additionally, because it is a professional position, the employer has to use three additional forms of recruitment, which may include trade or professional journals, the Journal of the American Medical Association, among others, the employer’s web site, online job sites, employee recruitment firms, radio and TV ads, etc.

The employer then has to contact and interview all applicants who appear to be qualified for the position and have job related reasons for rejecting any US workers. The employer must wait at least 30 days after all recruitment is completed to file the PERM labor certification. Once the PERM is approved, the employer and physician employee may move on to the next step of filing the Form I-140 petition and if the priority date is current, the application for adjustment to permanent residency, Form I-485.

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