"Public Charge" Rule Headed to the U.S. Supreme Court

On Monday February 22, 2021, the U.S. Supreme Court granted certiorari to hear Dept. Of Homeland Sec., et al. v. New York. This means the Supreme Court will review the lower court’s decision in order to determine whether or not the “Public Charge” rule violates the law. An injunction was granted on July 29, 2020 during the COVID-19 pandemic, preventing DHS from enforcing the rule because of the national health emergency. However, the U.S. Court of Appeals for the Second Circuit issued a decision allowing DHS to resume implementation of the rule nationwide on September 11, 2020. 

Former President Donald Trump’s expansion of the rule currently bars immigrants from obtaining legal permanent resident status if the government deems them likely to become a “public charge,” meaning likely to use government benefits. Described as a “wealth test,” Form I-944, Declaration of Self-Sufficiency, is the form used to make this determination. An applicant seeking legal permanent resident status must complete the form and provide comprehensive documentation of their entire household’s income, assets, and resources – including family members outside of the U.S. if they provide financial support to the applicant or vice versa. The applicant is further required to disclose all liabilities and debts such as mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt. The applicant must provide documents attesting to their level of education and must disclose whether or not they have ever used public benefits in the past. Essentially, everything other than an applicant’s first-born must be turned over to USCIS for scrutiny. Trump’s “Public Charge” rule has been nothing but a headache and a roadblock for immigrants and immigration lawyers alike.

The granted writ of certiorari hopefully marks a turn for the better, as the Supreme Court awards certiorari in a very limited number of cases each year. If the challengers, the State of New York, City of New York, State of Connecticut, State of Vermont, Make the Road New York, African Services Committee, Asian American Federation, Catholic Charities Community Services, Archdiocese of New York, and the Catholic Legal Immigration Network, Inc., can successfully argue the illegality of the “public charge” rule, it will mean significantly less invasiveness and scrutiny for immigrants seeking permanent resident status. We remain hopeful that this significant impediment will finally be removed soon and that the prior standard for public charge will be reinstated.

Serotte Reich will continue to provide updates, as the status of Form I-944 and its implementation continue to shift frequently. If you need assistance or advisement regarding an immigration matter that has been affected by the “Public Charge” rule, please contact us at 716-854-7525 or www.srwborderlawyers.com/contact to schedule a consultation.

New I-94 Website Feature Helps Foreign Nationals Avoid Overstaying in the U.S.

U.S. Customs and Border Protection has recently announced that they will now remind travelers via email and a new feature on the I-94 website of the last possible date they must depart the U.S. to comply with the terms of their admission. Currently, only eligible Visa Waiver Program travelers can utilize the new “Compliance Check” feature on the I-94 website to check how much longer they can legally remain in the U.S. without overstaying the terms of their admission. However, CBP has advised that further updates to the I-94 website are expected to incorporate additional nonimmigrant travelers.

To check the status of their admission in the U.S., eligible travelers can visit the I-94 website, click on the “View Compliance” icon and enter their name, birthdate, passport number and passport country of issuance. This check will inform travelers of how many days are remaining on their admission or how many days they have remained in the U.S. past their admitted until date.

If a traveler has overstayed the terms of their admission, the new I-94 website feature will provide the individual with information regarding what to do next. An overstay is someone who was lawfully admitted to the U.S. for an authorized period, but remained in the U.S. beyond his or her lawful period of admission. Overstaying the terms of your admission is significant as many overstays are not eligible to adjust or extend their status in the U.S. and in some cases, may trigger unlawful presence bars when they ultimately depart the U.S.

Although the new “Compliance Check” feature is currently only available to eligible Visa Waiver Program travelers, all travelers can check their admit until date on the I-94 website. To check their admit until date, travelers can click the “Get Most Recent I-94” icon and enter their traveler information (name, birthdate, passport number and passport country of issuance). It is important for travelers to be advised of their admit until date as periods of admission can vary widely depending on the traveler’s class of admission and/or visa type. For example, individuals traveling to the U.S. as B1/B2 visitors are admitted for a fixed period of time whereas students traveling to the U.S. in F-1 status are admitted for duration of status (D/S), which is based on the completion of a degree program.

Form I-94, Arrival/Departure Record, is of utmost importance for nonimmigrant visitors as it provides proof of their lawful admission to the U.S., which is necessary to verify alien registration, immigration status and employment authorization. Notably, in May 2013, CBP automated the I-94 system for travelers arriving to the U.S. by air and sea. The automated system eliminated the need for paper forms and manual data entry by allowing CBP Officers to create the I-94 record at the time of inspection.

More recently, in September 2016, CBP also launched an online I-94 application and payment option for travelers arriving at a land port of entry. Individuals may provide their biographic and travel information and pay the $6 fee online up to seven days prior to their entry.

These changes/upgrades to the I-94 system demonstrate CBP’s continued commitment towards improving the international travel experience for both U.S. citizens and visitors to the U.S. The new I-94 website feature makes it much easier for travelers to find their last possible departure date and to comply with their terms of admission.

Consequences Arising from the Presidents Executive Order on Immigration

On January 27, 2017, President Trump signed an Executive Order (EO) “Protecting the Nation From Terrorist Attacks by Foreign Nation” which became effective immediately.  Over the course of the last two days, the EO has resulted in uncertainty, fear, litigation and support for the immigrant community. 

Below are some of the highlights that we believe may directly impact our firm’s clients: 

Immediate Suspension of Issuance of Visas and Admission to the U.S. for Nationals from Designated Countries

The EO immediately suspends the issuance of visas and admission to the U.S. of nationals from the following seven (7) designated countries - Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - for a period of 90 days (excludes those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, and C-2 visa for travel to the United Nations). The EO indicates that additional countries could be added to the list as determined by DHS and DOS. After the 90 day period, travel will not be immediately restored – instead, countries must undergo various vetting procedures. During this time period, the EO does allow U.S. Dept. of State (DOS) and U.S. Dept. of Homeland Security (DHS) to issue visas, admit or grant other immigration benefits to affected individuals on a “case-by-case” basis and when it is in the “national interest”.

Who is impacted in the meantime?

• Dual Nationals
  • The EO isn’t clear on the definition of ‘from’ the designated countries – in an abundance of caution, it may be best to interpret the term as broadly as possible – to include passport holders, citizens, nationals, dual nationals, etc.
• U.S. Nonimmigrants & U.S. Immigrants from a Designated Country
  • This includes those individuals who were outside the U.S. at the time the EO was signed on Friday, including those in transit to the U.S.
  • Tip: If you are already in the U.S. in a valid non-immigrant status and are a national of a designated country, do not travel outside the U.S. for the near future. If you must travel, speak to an experienced immigration attorney first.
• U.S. LPR’s (inc. Conditional LPR’s)
  • While this EO originally applied to LPR’s, DHS has since confirmed that the entry of LPR’s is deemed to be in the national interest.  Accordingly, LPR’s who are also nationals of a designated country, will be allowed to re-enter the U.S., absent significant derogatory information indicating a serious threat to public safety and welfare. 
  • Tip: LPR’s who are nationals of a designated country should be prepared to be placed into secondary inspection and questioned upon re-entry into the U.S.
• Canadians
  • DHS has indicated to Canada Officials that naturalized Canadian citizens who are also nationals of a designated country will continue to be treated as Canadian citizens (who are visa-exempt).  Locally, we have seen CBP following this practice at our U.S.-Canada Ports of Entry.

How are the various govt. agencies handling the EO?

• U.S. Dept. of State (DOS)
  • DOS has been instructed not to issue visa to individuals of a designated country.  Pending visa appointments are being cancelled.
• U.S. Customs & Border Protection (CBP)
  • CBP is denying entry to individuals from these designated countries despite their facially valid visas. 
  • CBP is then detaining these individuals until they are able to secure a return flight to their country of origin or CBP grants them a waiver for entry (if applicable, based on any legal stays or on a case-by-case basis).
• U.S. Citizenship & Immigration Services (USCIS)
  • There are reports that USCIS is placing a hold on applications filed by or on behalf of individuals from the countries at issue (this would include I-130’s, I-129F’s, I-765’s, etc.). 
  • It is unclear whether Humanitarian Parole may still be available to affected individuals.
• U.S. Immigration & Customs Enforcement (ICE)
  • There are reports that ICE (this presumably includes ICE Chief Counsel’s Office and ICE ERO [Enforcement & Removal Operations]) is neither approving nor denying any Prosecutorial Discretion requests until clear directives on enforcement priorities are received.
  • On January 25, 2017, President Trump signed an Executive Order “Enhancing Public Safety in the Interior of the United States” which provides for new and revised enforcement priorities for removal – noncitizens convicted of any crime, noncitizens who have been charged with committing any crime (but not yet convicted), and those noncitizens who have a final order of removal. 

Suspends the Visa Interview Waiver Program

The EO immediately suspends the visa interview waiver program that is utilized by U.S. Consulates and Embassies throughout the world to facilitate the issuance and renewal of visas for certain travelers who have been deemed low risk. The program allowed for these low risk travelers to obtain visa renewals by utilizing a “drop-box” or “mail-in” application procedure instead of personally appearing for a visa interview at their local U.S. Embassy/Consulate.

With the suspension of this program, all applicants, regardless of nationality, age and whether first-time or renewal, will need to appear in person for their visa interviews. This is likely to result in increased wait times for appointments, increased times associated with accompanying background checks (aka Administrative Processing), and an overall uncertainty for business travelers seeking to renew their existing visas while on business trips.

Should you have any questions about the above or want to discuss your specific concerns with our office, please contact us. We look forward to assisting you.

DHS implements ("TRIP") Program to resolve difficulties experienced by travelers

Traveling to the United States can be a nightmare for some foreign nationals with previous immigration issues. These individuals can be held at a port of entry (e.g. a border crossing) and questioned for hours before they are finally allowed to enter. The screening process is often discouraging and stressful, and it leaves many foreign nationals asking "is it even worth the hassle?"

In an attempt to improve the screening process, the Department of Homeland Security ("DHS") created the Traveler Redress Inquiry Program ("TRIP"). TRIP is a single point of contact for individuals who are trying to resolve issues that complicate the screening process. Once you enroll in TRIP, your inquiry will be sent to the appropriate office for review and adjudication.

SRW Border Lawyers recently received a call from a client who expressed strong reservations about attempting to cross the border due to her previous experiences. As background, client was improperly issued an order of expedited removal and barred from entering the United States several years ago. SRW Border Lawyers, however, was able to vacate the order and clarify the client's record to reflect that she was admissible to enter the U.S. As a result, Customs and Border Protection ("CBP") issued a clarifying letter as well indicating that the client was in fact admissible. Despite CBP’s clarification letter, client still experiences difficulties when attempting to enter the U.S. Thus, client enrolled in the TRIP program and is currently awaiting a response (we will update this blog entry to report client's next port of entry screening experience).

If you have been experiencing difficulties at a port of entry, please call our office to discuss how TRIP may be able to help you in resolving your border related issues.