Month: June 2018

Immigrants seeking admission to the U.S.  will now face new challenges, as the Trump administration has proposed new guidelines in determining whether a visa applicant is likely to become a “public charge.”  Under current guidance from U.S. Citizenship and Immigration Services (USCIS) and the Department of State, a public charge refers to a person who is primarily dependent on the government for support. The purpose of the public charge determination is to prevent people, who are likely at any time to require governmental support, from being admitted to the United States. This determination is not only very broad in nature, but it is also at the discretion of the consular officers, leaving room for very different application and results at each consulate.  Furthermore, it appears USCIS may incorporate some of these changes into its adjudication of applications to adjust status (green card applications) for applicants already present in the U.S.

When determining whether someone is likely to become a public charge, consular officers are required to take into account certain factors such as the person’s age, health, family status, assets, resources, financial status, education, and skills. A leaked draft of the proposed regulation states that additional factors will now be considered or weighed differently, including whether the person has ever used certain governmental programs or benefitted from certain tax deductions.

To make matters worse, the Department of State’s Foreign Affairs Manual (FAM), which provides regulatory guidance for consular officers, has already made changes to its public charge determination. The change notates that “a properly filed, non-fraudulent Form I-864 [Affidavit of Support] in those cases where it is required, is a positive factor in the totality of the circumstances that you must consider when making a public charge determination.” This is a substantial deviation from previous practice. In the past, a properly filed Form I-864 Affidavit of Support was generally considered sufficient to satisfy the “totality of the circumstances” analysis such that approval based on this form was customary.

Unfortunately, these changes will undoubtedly increase the number of applicants denied admission to the U.S., and for many applicants these changes will require a new approach and additional documentation at consular and USCIS interviews.

Attorneys at Stern & Curray are watching this issue carefully. If you have questions about these changes and how they might affect your immigration case, please call us and schedule a consultation.

The use of administrative closure has come to a halt after the decision rendered by Attorney General Jefferson Sessions in the Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018), which holds that, in most cases, immigration judges do not have the authority to indefinitely suspend immigration proceedings by administrative closure.

In the past, immigration judges relied on their ability to administratively close cases, technically suspending them, instead of rendering a final decision, in an effort to manage cases in a more efficient manner. This essentially allowed immigrants to remain in the United States without a legal status. The use of this method was inferred from the ability of judges to use their independent judgment and discretion, as consistent with regulations, in the disposition of their cases.

According to the opinion, immigration judges, acting under the authority granted to them under a Statute or as delegated by the Attorney General, do not have unfettered authority to administratively close cases; but are rather permitted to use administrative closure in a specific category of cases – where a previous regulation or a previous judicially approved settlement expressly authorized such an action. As of now, all cases that are currently administratively closed may remain closed unless the Department of Homeland Security (DHS) or the respondent requests re-calendaring.

In addition, administrative closure has been commonly used in the past to allow individuals in removal proceedings to apply for and receive a Provisional Unlawful Presence Waiver prior to departing the United States. Without such a waiver, anyone who has accrued more than six months of unlawful presence and leaves the United States must remain outside the country for either 3 or 10 years before they can be granted a visa, even if they are married to a U.S. citizen or permanent resident. Individuals who are in removal proceedings, however, are ineligible to apply for this waiver unless their case is administratively closed. This decision therefore effectively bars anyone in removal proceedings from applying for a Provisional Unlawful Presence Waiver, adding significantly to the length of time they will be separated from their family in the United States.