In May 2020, U.S. Citizenship & Immigration Services (USCIS) reported a massive funding shortage that threatens the agency’s operations. USCIS is primarily funded by application fees, which have dramatically fallen this year for a number of reasons, including the COVID-19 pandemic, as well as the implementation of unnecessary and inefficient policies like requiring in-person interviews for all employment-based cases and not giving deference to prior adjudications. USCIS has asked Congress for a $1.2 billion dollar bailout which it intends to repay by imposing a 10% surcharge on most immigration-related applications and petitions. Without the bailout, USCIS asserts that it will not have sufficient funds to maintain its operations through the end of the fiscal year (September 30, 2020) and that it will not have enough funds for the first quarter of FY2021. USCIS has begun issuing furlough notices to its employees and estimates that it will need to furlough approximately 13,400 employees (70% of the USCIS workforce) starting August 3, 2020 if Congress does not grant its funding request. If USCIS furloughs its employees, we anticipate even longer processing times, as well as more inconsistent and error ridden adjudications. We hope that the agency’s request for funding is granted along with safeguards to ensure that USCIS institutes policies and procedures to ensure quality adjudications in an efficient and cost-effective manner.
“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.
USCIS Will Not Offer TPS Status for Filipinos Impacted by Typhoon
After the devastating typhoon that hit the Philippines on November 8th of last year, the American Immigration Lawyers Association (AILA) pressed U.S. Citizenship and Immigration Services (USCIS) to consider granting Temporary Protected Status (TPS) to impacted Filipinos. In a letter responding to that request, Director Alejandro Mayorkas states that USCIS will “continue to monitor the situation in the Philippines,” but makes no suggestion that TPS will be granted to nationals of the Philippines. The Director encourages those impacted by the typhoon to utilize other forms of relief, such as those outlined on the USCIS website. These options include expedited processing of some petitions and extensions of certain grants of parole.
Revamped USCIS.gov Website Goes Live
The USCIS website has been redesigned and was launched today in both English and Spanish. Director Alejandro Mayorkas describes the updates as part of USCIS’ “ongoing commitment to improving the quality of service we provide,” and adds that the agency gathered user feedback as part of their efforts to make the site more accessible. The updated site boasts a better search function and easier navigation menus as well as a more user-friendly change of address online tool.
Effect of Government Shutdown on Immigration
The shutdown of the federal government does affect applying for certain immigration visas. Fortunately, many services provided by USCIS, including processing of various petitions or applications for immigration benefits, will continue as they are fee-based. Therefore, applying to USCIS for non-immigrant petitions or permanent residence will continue at this time. USCIS offices are also open for interviews and appointments as scheduled.
Unfortunately, certain types of applications for immigration benefits are affected because they involve the U.S. Department of Labor, which is shutdown. Petitions to seek H-1B or E-3 status for employees cannot be completed at this time because a necessary component of these petitions is obtaining a labor condition application from the Department of Labor. Similarly, labor certification applications for employment-based permanent residence cannot be completed because the DOL is closed and therefore not accepting applications. While employers can complete preliminary work such as gathering information and documents, H-1B, E-3 and labor certification applications cannot move forward to completion until the DOL reopens.
The E-verify system is also shutdown. Therefore, employers will not be able to verify employment eligibility of any new hires or take any action in E-verify. The Department of Homeland Security has suspended the 3 day rule for E-verify cases that are affected by the shutdown and indicated that it will provide additional guidance once the federal government is reopened. We remind employers to be sure to continue to complete their form I-9’s for new hires within 3 days of hiring.
Immigration courts around the country are also affected. The court has announced that it will continue to hear cases of individuals in immigration detention, but is suspending all other functions due to the shutdown. Cases docketed during this time will be reset for future hearing dates.
The Department of State has announced that visa operations at U.S. consulates abroad will continue as they are fee-based.
We will provide further information as we receive it.