Month: August 2018

Categories
Updates

Refusal of Visas Based on “Public Charge” Ground

Share this:

For many years, an Affidavit of Support is an essential document before a visa may be issued to an applicant seeking to enter the United States. What happens if the the affidavit of support is found to be insufficient? Why are many visa applicants now being denied despite submission of Affidavits of Support? What are the new changes in policy regarding public charge?

Public Charge Finding

A non citizen may become a public charge for inadmissibility or deportability if s/he has become primarily dependent on the government for subsistence or is proven to have (1) received public cash assistance for income maintenance or (2) institutionalization for long term care at government expense. Only 3 types of public cash assistance benefits are referred to become a public charge: (1) Supplemental Security Income or SSI for the aged, blind and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance, and (3) state and local cash assistance programs known as general assistance.

Affidavits of Support Plus Other Factors

Before new policies took place, an Affidavit of Support should be sufficient to overcome a public charge ground for denial of the visa. This is a document executed by the Petitioner who will attest that she has sufficient assets and income to support the visa applicant. If the petitioner is unable to show financial capacity to support, a co-sponsor may submit an affidavit of support. The petitioner or the sponsor shall demonstrate that she has the means to maintain an annual income equal to at least 125 percent of the Federal poverty line. In addition, she has to agree to provide support to maintain the sponsored visa applicant at an annual income that is not less than 125 percent of the Federal poverty income line.

Early this year, the U.S. Department of State changed the policy on Affidavits of Support. It added now a provision on 9 FAM 302.8-2(B)(2) that states that an Affidavit of Support is one of the positive factors taken into account in the totality of the circumstances test and is not in itself sufficient to protect an individual from a public charge determination. The other factors that are to be taken into account are the applicant’s age health, family status, assets, resources, financial status, education and skills.

In addition to the totality of circumstances test that is currently being used, it is anticipated that in the next few months, the new public charge policy of the Department of Homeland Security will be published and implemented. The worst part of the new rule that is USCIS will count benefits received by the petitioner U.S. citizen and take it against the visa applicant to show a finding of public charge.

In applying the amendments to the public charge policy, using the totality of circumstances test, there are cases now where a visa applicant is denied for public charge ground upon finding that the co-sponsor who executed the affidavit of support has no familial relationship to the visa applicant. This means that if the co-sponsor is a friend and not the relative of the visa applicant, even if there is proof of sufficient means to support the applicant, visa applications are being denied.

While this new policy is being implemented, there is no basis under the law to require a co-sponsor to be a relative. INA § 213A(f) or 8 CFR§213a.2 does not include a relationship requirement for a joint sponsor. In addition, the visa applicant should not be denied outright of their visas if initially there is a public charge finding. There should be an opportunity to augment the record by submitting additional evidence to show that the applicant will not be reliant on government welfare upon arrival in the United States. A visa applicant improperly denied based on public charge finding should not simply accept the decision without seeking a reconsideration and having the opportunity to submit additional documents to contest the denial.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw, or through this website.)

Categories
Updates

3 Categories of Immigrants Who Risk Being Stripped of U.S. Citizenship

Share this:

The U.S. Department of Homeland Security announced in June 2018 the establishment of a Denaturalization Task Force within the U.S. Citizenship and Immigration Services (USCIS). The new USCIS office will focus on investigating cases of naturalized U.S. citizens and determine whether they will be recommended for denaturalization.

From among the 20 million naturalized U.S. citizens, who are at risk of being stripped of their U.S. Citizenship?

Denaturalization may be found in Section 340 of the Immigration and Nationality Act. There are only certain legal basis to denaturalize an individual and this is initiated by the government through the federal district courts. In the past, it was seldom utilized except in extreme cases like in denaturalization of former Nazis who lied about their past who illegally procured naturalization.

In 2008, Operation Janus was launched by the Department of Homeland Security and identified 854 individuals who had prior removal order, criminal convictions who were able to naturalize. These individuals’ fingerprint records were missing from the centralized DHS database. Now the current administration is planning to refer 1,600 more cases to the Department of Justice for denaturalization.

Those who are most likely to be affected by the administration’s effort to strip U.S. citizenship from naturalized citizens may be divided mainly into 3 categories. These are immigrants who procured their citizenship illegally because of the presence of:

  • Prior criminal conviction that was concealed: Those who concealed their criminal convictions on their naturalization applications and their criminal cases are grounds for removal may have their cases referred for naturalization. Note that criminal charges or convictions must have occurred before and during the naturalization process.
  • Prior removal cases and assumed identities: Ten (10) years ago, the U.S. government discovered hundreds of individuals who had prior deportation orders and who used different names in their green card and naturalization applications. These cases are now being investigated and may be re-opened for denaturalization.
  • Material fraud and misrepresentation. This refers to those who lied in obtaining their green cards through fraud and misrepresentation. The lie must have a relation to the eligibility for green card or naturalization to be a basis for denaturalization.

Once an immigrant is identified for investigation by USCIS for purposes of denaturalization, the matter will be referred to the Office of Immigration Litigation and the Assistant U.S. Attorney. Thereafter, the case will be filed with the federal district court having jurisdiction over the residence of the immigrant being stripped of citizenship. When the case is filed with the court, the naturalized U.S. citizen may present evidence to avoid denaturalization. Note that this is a judicial process and only a federal judge may strip one of U.S. citizenship. There is a due process involved and a right to a hearing. If a citizen is denaturalized, most probably this individual will be put in removal proceedings. Whether or not he will be deported depends on available relief or waivers.

These days the Immigration and Customs Enforcement (ICE) is not the only agency in charge of immigration enforcement. The USCIS, with the creation of the Denaturalization Task Force, is now also involved indirectly in enforcement matters. Likewise, naturalized U.S. citizens must now realize that they no longer have a sense of permanence when it comes to their immigration status. If you believe that you fall into any of the categories of those who might be affected by this denaturalization effort of USCIS, it will be best to revisit and re-examine your naturalization application and have your case assessed by competent legal counsel. If there is a possibility of denaturalization, prepare yourself to defend yourself in the federal court and, in the worst case scenario, explore applicable waivers or defenses to avoid removal.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw)