Tag: U.S. Department of Homeland Security

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Who Will Be Affected by Trump’s Proposed Public Charge Rules?

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On September 22, 2018, the U.S. Department of Homeland Security published on its website a 447 page proposal called the “Inadmissibility on Public Charge Grounds”. This proposal would have the effect of denying green cards to immigrants who have legally availed public benefits. Obviously, this is part of Trump administration’s overall trend of cracking down on both legal and illegal immigration.

Most non-immigrants and unauthorized immigrants in the United States are not eligible for most public benefits. But for those who find themselves availing of food stamps, housing vouchers and Medicaid, they may face risk to their future immigrant status if the proposal is fully implemented.

What is this new proposal about?

This new proposal refers to a “public charge” finding as a ground for inadmissibility or basis for denial of visas. An individual is considered a public charge if s/he is dependent primarily on government assistance for her/his subsistence.

Currently the public charge rule is that a person who is dependent primarily on welfare or government assistance will be denied a visa if s/he availed of monetary public benefits such as (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 (GA).

Under the recent proposal, the definition of public benefits in determining whether one is a public charge has been expanded. The additional public benefits are Medicaid (with limited exceptions for medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare part D low income subsidy, the Supplemental Nutrition Assistance Program (SNAP, or Food Stamps), institutionalization for long-term care at government expense, Section 8 housing choice voucher program, Section 8 project-based rental assistance, and public housing.

In addition, the proposal added the totality of circumstances test in determining whether one is a public charge. This means that USCIS examiner or consular officers may now examine varying factors that may lead them to the conclusion that the applicant for visa is likely to become a public charge. These factors include applicant’s age, health, family status, assets, resources, and financial status, and education and skills.

Who are affected by this proposal?

Those affected are those (1) non-immigrants present in the United States who are applicants for adjustment of status; (2) those applying for visas at consular offices abroad and (3) those entering the United States who are found to be receiving public benefits within 5 years of of being a lawful residents or in green card status.

Will green card holders applying for U.S. citizenship be affected?

Generally, a finding of public charge is not a ground for denial of U.S. citizenship and so a green card holder who is an applicant for naturalization is not affected by the proposal. The issue of public charge will only matter and result in denial of U.S. citizenship if during the examination on the naturalization application, it is determined that the green card holder had engaged in fraud and misrepresentation in obtaining public benefits.

Should prospective immigrants withdraw from receiving public assistance?

Several community immigrant advocates had opposed the new proposals as being discriminatory against low income immigrants who may happen to receive some benefits because of sudden illness or they have unexpectedly lost their jobs due to economic downturns or changes in their company. In most cases receipt of benefits is only temporary and simply served as a basic economic safety nets to provide economic stability until the individuals becomes self sufficient again. To take this safety net against them in their future application for green cards is cruel and unjust.

A person who is prospectively affected by this proposal may be compelled to choose between risking his future immigration status and meeting his basic need. But it is premature to make a decision on whether those who are receiving public assistance should start withdrawing from these government programs. Although in anticipation of the implementation of the proposals, several public benefit recipients already stopped receiving public benefits at the expense of their health and safety. This proposal becomes a final rule 60 days after it is published with the Federal Register. It must be clear that the proposal is not yet a final rule. It was just recently published on the DHS website. Once it is published with the Federal Register the public will be afforded 60 days to comment and oppose these restrictive proposals. There is still an opportunity to completely negate the impact of this proposal.

(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 tancinco.weareph.com/old)

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

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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)

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Int’l Entrepreneur Parole good as Dep’t of Homeland Security loses lawsuit

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No matter how eager the current administration is to restrict immigration policies, the rule of law must still prevail. An immigration regulation that went through the process of the required public notice and comment may not be abruptly rescinded without violating the Administrative Procedure Act. This was the issue of contention in the case against the U.S. Department of Homeland Security when it sought to delay the implementation of the International Entrepreneur Parole from July 17, 2017 to March 14, 2018.

The Delay Rule was released by DHS on July 11, 2017 without offering the public the required advance notice, or an opportunity to comment, claiming that there was good cause to issue the rule. A lawsuit was filed against DHS by the Plaintiff National Venture Capital Association, and the court ruled in favor of the Plaintiff. The U. S. District Court rendered the Delay Rule invalid for failure to afford public comments and notice on the change.

As a result of this court ruling, the U.S. Citizenship and Immigration Services released a statement on December 14, 2017 informing the public that the International Entrepreneur Parole applications will be accepted without further delay.

Entrepreneur Parole Program

The entrepreneur parole program grants parole status to a foreign national who is an “entrepreneur” of a startup and who has an active role in the operation of the business. This entrepreneur must have recently formed a new start-up entity within three years before the date of filing the initial parole application.

Unlike an applicant for investors visa, where the entrepreneur must show infusion of capital to the business that is formed from his own resources, an international entrepreneur seeking parole must show that the start-up business has potential for a “rapid growth and job creation.” There are three alternative ways to prove this: first, that the business has significant U.S. capital investment of $345,000 or capital from established U.S. investors such as venture capital firms, angel investors and the like who have a history of substantial investment in successful start-up entities; second, the business received government funding of grants totaling $100,000 or more; and, third, any reliable and compelling evidence that will prove significant public benefit to the United States.

The USCIS will now start accepting applications on new USCIS Form 941. The filing fee for this application is $1,200. Once the application is approved, the entrepreneur, his/her spouse and minor children will be paroled into the United States and will receive employment authorization documents. Parole will be granted for up to 2 years and may be renewed for up to 3 years.

Parole Authority

The current immigration law allows the DHS to exercise its parole authority under section 212(d)(5) of the Immigration and Nationality Act if the presence of the paroled non-U.S. citizen would provide a significant public benefit to the United States.

Under the entrepreneur parole program, eligible applicants may be granted a stay of up to 30 months, with the possibility to extend it for a period of up to 30 additional months. Those targeted to receive parole are entrepreneurs who shall work with the start-up businesses.

Approximately, 3,000 entrepreneurs are expected to apply for parole under this program. Most of those who are planning to apply come from the tech industry as well as those who are planning to develop new business ventures that will spur economic growth and job creation.

While the rule is now in effect, according to DHS, the administration is still determined to terminate this program at some point, and the agency is now planning to afford enough public notice and comment before its termination. In the meantime, those who are eligible may consider immediately filing their applications.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

Also appears in: Inquirer.net 

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Global Pinoy

Prosecutorial discretion as an option for the undocumented

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Ten years after arriving in the United States, Eva seems to have lost her hope of legalizing her stay. She was petitioned by her U.S. citizen fiancé, but after a few weeks of living together as a couple, her petitioner abandoned her. Her U.S. citizen fiancé never married her. She now has a child who was born in the United States from a subsequent relationship, but the father also refuses to acknowledge the child; and, neither is he marrying Eva.

In 2014 when President Obama announced the Executive Actions for parents of U.S. citizens (DAPA), Eva became hopeful that she would have an opportunity to stay and work legally. After an adverse ruling was rendered on June 23, 2016 by the U.S. Supreme Court upholding the injunction on the DACA+ and DAPA, Eva became fearful that this setback would have the effect of immediate removal/deportation from the United States for the millions of immigrants who were prospective beneficiaries of the DAPA and DACA+.

Secretary of the U.S. Department of Homeland Security Jeh Johnson, made a public statement that the enforcement priorities will be focused on those who have criminal convictions, threats to public safety and national security and border security. New immigration violators or those who just arrived and are now in unlawful status are second in priority for enforcement. Last in priority of enforcement are those with other immigration violations or those who are in the country in unauthorized status. This last category of immigrants is considered non-priority.

Despite these categories of enforcement priorities, there are recent cases where the DHS still placed in removal proceedings individuals who are in a non-priority category. This is quite troubling for those who are already in authorized stay. While there is no increase in the apprehension of undocumented immigrants, it is important to understand that if there is no immediate relief available, prosecutorial discretion may still be requested.

This prosecutorial discretion refers to different actions by the DHS to avoid removal, placing an individual in removal proceedings, dismissing an action, deciding to release a detained individual or whether to grant deferred action or parole. There is a broader deferred action policy that may be asserted in requesting for prosecutorial discretion.

There are different factors taken into account in order to warrant a favorable exercise of discretion from DHS. It may include, among others, the following: length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

Eva may take still have the option of requesting for prosecutorial discretion if she ever finds herself in immigration court for removal proceedings. Whether or not she will be granted favorable exercise of discretion will depend on the circumstances of her case.

Absent comprehensive immigration reform as well as the DACA and DAPA programs, prosecutorial discretion remains good policy and may always be requested especially in humanitarian cases where removal will affect families with U.S. citizens or lawful permanent residents.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Global Pinoy

Will Obama’s immigration executive actions prevail?

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More than 4,000 immigrants and advocates gathered outside the highest court of the United States while the justices heard the case of United.States. v. Texas. Among those who were present were immigrant families who are undocumented and who have a stake in the result of the litigation.

Certainly, there were Filipino Americans advocates and families who also joined the rally and were very vocal about their support for the programs. The 4 million individuals who have a stake in this litigation include numerous Filipino families who will benefit from the Obama’s executive actions. The most pressing question after the hearing is, What is the likelihood of a decision in favor of the Obama’s DACA/DAPA executive actions?

United States v. Texas is a lawsuit initiated by 26 States questioning the legality of Obama’s Executive Actions on DAPA and the DACA extension. DAPA refers to Deferred Action for Parental Accountability where deferred action will be granted to undocumented parents of U.S citizens.

The DACA expanded program will allow more undocumented children to apply for deferred action. If deferred action is granted, employment authorizations will be issued to qualified applicants while it does not confer any other immigration benefit such as a pathway to legal resident status.

An estimated 4 million individuals who are currently undocumented are expected to benefit from these DACA and DAPA programs. Implementation of these programs were stalled by court injunction. The case ultimately reached the U.S. Supreme Court and legal arguments were heard by the justices on April 18, 2016.

The issues on standing and the merits of the executive actions were argued well by the U.S. Solicitor General Donald B. Verrilli, Jr. in favor of the DACA/DAPA programs. Verrilli emphasized that the States do not have the standing or legal capacity to bring the lawsuit.

The nature of the controversy was more of a political disagreement with the Federal government rather than a legal dispute. Considering that it is it a political disagreement on federal enforcement, to render a decision in favor of standing will open a floodgate of cases where states may, at anytime, sue the federal government for any political disagreement.

Most of the legal arguments centered on the issue of standing. As to the merits of the DACA/DAPA, the lawyer for the Respondent States, Texas Solicitor General Scott A. Keller wrongly argued that these executive actions confer legal status. This argument was met by the Verrilli’s rebuttal that deferred action does not confer legal status but rather a tolerated presence by the U.S. Department of Homeland Security.

The decision will be rendered sometime in June 2016. With very compelling and convincing arguments raised during the hearing by Verrilli, a favorable outcome in favor the DAPA/DACA Executive Actions, with at least a 5-3 vote, is hoped for by thousands of families who will be affected by the Supreme Court decision. Unfortunately, with one vacancy in the U.S. Supreme Court, there are only 8 justices. If the justices are divided 4-4, then the injunctions on the executive actions will remain.