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“Public Charge” Takes on New Meaning

USCIS publishes new public charge rule that will likely have a negative effect on green card applicants.

This week, the U.S. Department of Homeland Security (DHS) published a final rule that redefines the public charge grounds for inadmissibility. The term “public charge” is used to describe individuals applying for admission to the U.S. or adjustment of status who are considered likely to become a burden on society. The new rule is set to go into effect on October 15, 2019, and may affect somewhere between 60-80% of green card applicants. Lawsuits have already been filed challenging the lawfulness of the new rule and seeking restraining orders to stop the new rule from going into effect.

What was the old public charge rule?

The current rule defines public charge as an individual who is likely to become primarily dependent on the government for support, meaning that they rely on cash assistance programs for income support or government funded long-term care. Immigration officers currently consider whether applicants have used these benefits in the past, which include welfare (TANF) and SSI (Supplemental Security Income). Under existing policy, the use of housing and nutrition programs or publicly-funded health care is not considered.

What has changed?

Under the new rule, any intending immigrant who received public benefits for more than a total of 12 months within a 36-month period has a heavily weighted negative factor against their application for permanent residence, and may be considered a public charge. Benefits considered for public charge determinations now include Medicaid, the Supplemental Nutrition Assistance Program (SNAP/Food Stamps), Section 8 housing assistance, federally subsidized housing, and any form of federal, state, or local cash assistance.

The following are not public benefits under the new rule:

  • Medicaid for those under 21;
  • Medicaid for pregnant individuals (including 60 days after giving birth);
  • Medicaid under the Individuals with Disabilities Education Act;
  • Emergency medical care or disaster relief;
  • Members of the U.S. armed forces (and their spouses and children) who are enrolled in benefits programs;
  • National school lunch programs;
  • Student loans or mortgage loans; and
  • Food pantries or homeless shelters.

Only benefits received directly by immigrants will be considered, so U.S. Citizen family members who receive benefits are not considered.   Also, some immigrants, such as those granted asylum and refugees, are exempt from the public charge rules.

Immigration officers may also consider lack of proficiency in the English language to be a negative factor, and English proficiency to be a positive factor. Additionally, an individual’s medical conditions can weigh negatively against their applications, especially if they will likely require extensive medical treatment, are unable to work, and will likely be uninsured. The rule will still consider an applicant’s entire circumstance, including examining their financial status, size of family, age, education, skills, and employment status.

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TRUMP EXPECTED TO ISSUE NEW EXECUTIVE ORDER NEXT WEEK

In a news conference held Thursday, President Trump announced that rather than continue fighting for the reinstatement of his controversial executive order on visas and refugees, he will instead start from scratch and issue an entirely new executive order on the matter. President Trump expects to release the new order next week.

In its supplemental brief to the Ninth Circuit filed Thursday, the Justice Department confirmed Trump’s announcement, stating that “[r]ather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns.” The Department filed that brief in response to Chief Judge Thomas’s call for a vote considering whether the three-judge panel’s ruling blocking Trump’s original travel ban should be reviewed by the full Court. The Department further stated that though the injunction “readily meets the normal standards for rehearing,” the government “respectfully submits that the most appropriate course would be for the Court to hold its consideration of the [pending] case until the President issues the new Order and then vacate the panel’s preliminary decision.”

Both the President and the Department of Justice have stated that the new executive order will obviate the constitutional concerns articulated by the Ninth Circuit in its appraisal of the original order, though the Executive’s maintains that the Court’s ruling was “seriously flawed.” Whether the legal battles over the President’s immigration reform are over however, largely depends on the contents of his new order.

 

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The 9th Circuit Refuses to Reinstate President Trump’s Travel Ban

The 9th Circuit Court of Appeals on Thursday upheld a lower court’s stay blocking enforcement of President Trump’s ban on admitting travelers from seven predominantly-Muslim countries: Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen. The court’s decision means that the Trump administration will likely choose to either appeal the decision to the Supreme Court, or attempt to issue a new Executive Order that complies with the constitution. 

Due Process Violations

The court based its ruling largely on the Executive Order’s due process violations, namely a lack of notice and hearing prior to restricting an individual’s ability to travel. Although the government argued that the travel ban mostly impacts individuals who have no protection under the Constitution’s Due Process Clause, the 9th Circuit disagreed. Citing the Supreme Court’s decision in the 2001 case Zadvydas v. Davis, the court reminded the government that the protections of the Fifth Amendment’s Due Process Clause apply not only to citizens, but to all persons within the United States, “regardless of whether their presence here is lawful, unlawful, temporary, or permanent.” The 9th Circuit stated that restricting the ability of lawful permanent residents and temporary visitors to travel and return is likely an impermissible violation of the people’s due process rights.   

Reviewability

The government initially argued that the President’s actions in the field of immigration are unreviewable by the courts when motivated by national security concerns, even when the actions may violate constitutional rights and protects. While recognizing the deference that courts have historically given to the political branches in matters of immigration and national security, the 9th Circuit stated in its decision that this assertion lacks precedent and “runs contrary to the fundamental structure of our constitutional democracy.” 

Government Interest  

In weighing the government and public interests and the potential injury to those affected by the Travel Ban, the court found that the government failed to provide any evidence that persons from any of the seven countries named in the Executive Order had perpetrated a terrorist attack in the United States. Additionally, the court pointed to the strong public interest in the free flow of travel, preventing the separation of families, and protecting the people’s freedom from discrimination, which in this case would likely outweigh the government interest in banning travel from these countries.

 

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January 27th Executive Order Regarding Immigration

On Friday, January 27, 2017, President Trump signed an executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”   The following provides information on the key provisions of this order and any clarifications and updates that are known to date:

·         The order bans entry for 90 days (from January 27, 2017) of immigrants and non-immigrants from the following countries:  Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  (The following visas are exempt from this order: A, G, NATO, C-2 and C-3).  All embassies and consular posts have been instructed to immediately suspend the issuance of non-immigrant and immigrant visas for nationals of those countries.  Other countries may be added to the list in the future.

o   Department of Homeland Security (DHS) has clarified that the order applies to anyone who holds a passport from a designated country, including dual citizens who hold passports from a designated country as well as a non-designated country.

o   Legal Permanent Residents (LPR) may be admitted on a case-by-case basis following security review.  DHS has deemed entry of LPRs to be in the national interest and absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, LPR status will be a dispositive factor in case-by –case determinations.

·         The order suspends the U.S. Refugee Admissions Program for 120 days.   However, there may be exceptions made on a case-by-case basis, based on whether it is in the national interest, the person poses a risk to the U.S., the person is a religious minority facing religious persecution or the admission of the person is required to conform U.S. conduct to an international agreement, or the person faces hardship when already in transit.

o   The order suspends indefinitely the admission of Syrian refugees and reduces the number of refugees allowed to be admitted to the U.S. in 2017 to 50,000.

·         The order further provides for additional security protocols as well as requires that the U.S. consular officers interview everyone who applies for a non-immigrant visa.

On January 28, 2017, the U.S. District Court for the Eastern District of New York in Darweesh v. Trump, signed an emergency order prohibiting the removal of individuals with refugee applications approved by USCIS as part of the U.S. Refugee Admissions program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the U.S.  This emergency order applies to all noncitizens who are detained at U.S. airports because of this January 27, 2017 executive order and will remain in effect until a full hearing is held.

Stern & Curray strongly condemns the President’s executive orders and maintains they are discriminatory and unconstitutional.  We will continue to keep clients and the public apprised of any developments in the immigration laws.

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President Trump Signs Series of Executive Orders on Immigration

In a series of executive orders announced on Wednesday, President Trump took the initial steps to significantly revise U.S. immigration policy from that of the Obama Administration. The executive orders call for a number of changes to various immigration programs, including DHS’s immigration enforcement priorities, the U.S. Refugee Admissions Program, visa issuances from specific countries, and the much-talked-about border wall.

Some of the announced changes include the following:

  • A revised list of immigration enforcement priorities that includes, among other categories, individuals charged with “any criminal offense,” even where the individual has not yet been convicted.
  • An increase in the number of immigrant detention centers and federal border patrol agents.
  • A dramatic decrease in the number of refugees admitted annually under the U.S. Refugee Admissions Program from 110,000 to 50,000.
  • A 120-day freeze on all refugee admissions, followed by a resumption of admissions only from countries determined to have sufficient safeguards to “ensure the security and welfare of the United States.”
  • A 30-day freeze on admissions of immigrants or nonimmigrants from countries designated as “areas of particular concern,” namely Iraq, Syria, Iran, Libya, Somalia and Yemen, followed by a potential indefinite suspension of admissions from these countries.
  • Construction of a contiguous, physical wall along the US/Mexico.

Although some of these proposed actions – such as the border wall, detention centers and increased number of border agents – will require Congress to allocate funding before they can be implemented, many of the actions will likely go into effect immediately.

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DHS EXTENDS TEMPORARY PROTECTED STATUS FOR SOMALIA AND YEMEN

Earlier this month, Secretary of Homeland Security Jeh Johnson announced his re-designation and 18-month extension of Temporary Protected Status (TPS) for Yemen. DHS originally designated Yemen for TPS in September, 2015, on the basis that the ongoing armed conflict occurring within the country posed a threat to persons returning there. In re-designating the country for TPS, Secretary Johnson has recognized that threat to persist. The extension takes effect on March 4, 2017, and will last through September 3, 2018.

To extend TPS coverage, current  beneficiaries must re-register during the 60-day period that runs from January 4, 2017, through March 6, 2017. Re-registrants are also able to apply for a new Employment Authorization Document (EAD) during this period, and the validity of all current TPS Yemen EADs with an expiration date of March 3, 2017, will be extended through September 3, 2018. Yemeni nationals (and persons without nationality who last resided in Yemen) who do not currently have TPS may apply during the 180-day registration period that runs from January 4, 2017, through July 3, 2017.

​DHS has also extended TPS for Somalia, thereby allowing eligible Somali nationals (and persons without nationality who last resided in Somalia) to retain an additional 18 months of protected status, so long as they otherwise remain eligible. The extension will take effect on March 18, 2017, and will expire September 17, 2018. Individuals who have already been granted TPS under a previous designation may re-register during the 60-day period which runs from January 17, 2018, through March 20, 2017, and may also apply for a new EAD. Current EADs with an expiration date of  March 17, 2017, will now remain valid through September 17, 2017.

Somalia was initially designated for TPS in 1991, on the basis of “extraordinary and temporary conditions” preventing Somali nationals from returning to Somalia safely. In re-designating the country for TPS, DHS stated that though the Somali government “has made some progress,” instability and armed conflict persist such that the conditions for TPS continue to be met. This instance marks the tenth time that Somalia has been re-designated for TPS.

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U.S. Ends Special Immigration Policies for Cuban Migrants

In an attempt to further normalize U.S.-Cuban relations, the Obama administration has announced the end to two special immigration policies directed toward Cuban migrants. The first of the scrapped programs allowed Cuban nationals who made it to dry land in the U.S. to remain and apply for permanent resident status without receiving a visa. The so-called, “wet foot, dry foot” policy  began under the Clinton administration in 1995 as a means of addressing the wave of Cuban migrants picked up by the U.S. Coast Guard while attempting to reach Florida. The program, however, has been heavily criticized by the Cuban government for encouraging outward migration from the island country, and has been criticized by other foreign governments for granting preferential treatment to Cuban migrants. In addition to eliminating the path to legal resident status for Cuban migrants on U.S. soil, the Department of Homeland Security also eliminated an exemption for Cuban nationals from expedited removal proceedings when apprehended near the border or at ports of entry.

The other special Cuban immigration program that the Obama administration eliminated is the Cuban Medical Professional Parole Program, which allowed Cuban medical professionals to defect and apply for parole into the United States. Under the program, the U.S. admitted Cuban doctors, nurses, paramedics, physical therapists, lab technicians and sports trainers who worked for the Cuban government in a third country and would not otherwise have been eligible to receive a Cuban exit permit. The Cuban government has long criticized the program for depriving the country of its trained medical professionals.

Because both programs were eliminated by agency action, it is unclear what impact the upcoming change in administration will have on U.S. immigration policy and other recent changes to US-Cuban relations.

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Retired General John F. Kelly Nominated as Secretary of Homeland Security

President-Elect Donald Trump announced that he is nominating retired Marine General John F. Kelly as Secretary of the Department of Homeland Security.  The Department of Homeland Security is one of the largest Cabinet departments in the federal government and is responsible for enforcing our nation’s immigration laws, among other responsibilities.

General Kelly is a four-star General who was most recently head of the United States Southern Command, a unified Combatant Command located within the U.S. Department of Defense responsible for operations, security, and contingency planning in the Caribbean, Central and South America.  General Kelly also served as the Assistant Commander of the First Marine Division in Iraq in 2003 and 2004 and was named the U.S. Top Commander in Iraq in 2008.  General Kelly is a widely-respected military officer whose son was killed during combat in Afghanistan in 2010.  His combination of military and southern-border experience in addition to his personal experience with the sacrifices inherent in war and combat have been suggested as leading reasons for his nomination.  In order to assume his nominated role as Secretary of the Department of Homeland Security General Kelly will need to be confirmed by the Senate, where he is not expected to face much opposition.

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Will Detained Immigrants be Held Without Bond Hearings?

Today the United States Supreme Court hears an important case concerning the constitutionality of immigrant detention, and in particular, whether immigrants subject to lengthy detention have the opportunity for release on bond.  The case, Jennings v. Rodriguez, is a class-action lawsuit that asks the Court to consider whether detained immigrants must be afforded bond hearings with the possibility of release if they have been detained for six months or more.

In general, indefinite detention without a bond hearing is not allowed under the U.S. Constitution, and it is well established that the Fifth Amendment entitles noncitizens to due process of law in deportation proceedings.  Reno v. Flores, 507 U.S. 292 (1993).  However, under the Supreme Court precedent of Demore v. Kim, 538 U.S. 510 (2003), among other cases, and using the plenary power doctrine, the federal government has defended its ability to detain immigrants during removal proceedings for a “limited time of duration.”  Limited time of duration is undefined.

Jennings v. Rodriguez seeks to clarify this discrepancy.  The lead class representative in Jennings v. Rodriguez is 38 year-old Alejandro Rodriguez.  Mr. Rodriguez is a legal permanent residence who was brought to the United States as a child.  He was convicted of a drug possession charge which resulted in him being placed into removal proceedings.  While in proceedings he was detained for three years without a hearing.  Another class participant, an asylum-seeker who suffered torture in Ethiopia, was detained for nine months without a hearing simply because his proof of identify was deemed insufficient – a Department of Homeland Security officer found that he was not a danger to society.  Had this asylum-seeker been given a bond hearing before an immigrant judge this issue could have been presented and clarified, allowing his release.

These indefinite detentions are unjust and unacceptable.  A bond hearing to assess a noncitizen’s potential flight risk and danger to the community is one of the most basic, fundamental due process requirements for civil detention.  The argument presented in Jennings v. Rodriguez is merely calling for the opportunity to present arguments for release before an immigration judge.  This minimal due process protection should be afforded to noncitizens in civil immigration detention.

A decision from the Court on this case will not be made for several months, and at the latest, by the end of June 2017.  The outcome of Jennings v. Rodriguez will significantly impact President-elect Trump’s strategies and proposals for immigration.

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Join us: I-9 Roundtables

In the wake of the Presidential Election, there has been much speculation about how immigration enforcement will change in a Trump presidency. While we wait to determine the exact tenor of the incoming administration, we do know that I-9 audits remain a potential target area and a concern for employers. On Monday, USCIS released a new Form I-9, and employers will be required to use the updated form by January 22, 2017.

We invite you to join us for a free roundtable to discuss the changes to the Form I-9 as well as a conversation on best practices for completing and retaining the form.

As a reminder, fines for paperwork errors on the I-9 recently increased significantly from $110 to $1,100 per employee to $216 to $2,156 per infraction.
Follow this link for RSVP information.
Breakfast Session
January 11th from 8:30 am-9:30 am

Lunch Session
January 18th from 12:00 pm-1:00 pm

Location: 650 S. Cherry St.
Denver, CO 80246

*Room details will be sent prior to the event.

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