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Proposed Law on Public Charge for Denying Cases for More Current and Potential Welfare Benefits Recipients

Tiyalaw — Thu, 27 Sep 2018 07:00:27 +0000

Proposed Law on Public Charge for Denying Cases for More Current and Potential Welfare Benefits Recipients

Recently, U.S. Citizenship and Immigration Services (USCIS) proposes new law to widen the “public charge” determination for recipients of various welfare benefits. Those who are likely to become a “public charge” at any time in the future will be inadmissible and disqualify from various immigration green card applications, admissions, visas; and nonimmigrant change of status and extension of stay.
USCIS will publish the effective date for proposed rules upon completing public comments and reviews.

The public benefits (beyond certain thresholds) that are covered by the proposed “public charge” determination includes:

Receipt of designated public benefits, including cash assistance for income maintenance, 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), any benefit provided for institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing. Generally, these covered benefits represent the largest Federal programs for low-income people by total expenditure that address basic living needs such as income, housing, food, and medical care.
Under the proposed rule, receipt of public benefits that are not covered by the 1999 Interim Field Guidance (i.e., Medicaid, the Medicare Part D Low Income Subsidy, SNAP, and the designated housing benefits) would not be considered for public charge purposes. Only such benefits receipt that occurred after a final rule becomes effective will be considered public charge.

The proposed rules will not affect foreign nationals specifically exempted from the public charge ground of inadmissibility, such as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act (VAWA), and special immigrant juveniles; and also excludes consideration of benefits received by U.S. citizen children of aliens who will acquire citizenship under either section 320 or 322 of the INA, and by alien service members of the U.S. Armed Forces.

Additionally, most lawful permanent residents would not be subject to inadmissibility determinations; certain exceptions apply.

For additional information, please visit:

https://www.uscis.gov/legal-resources/proposed-change-public-charge-ground-inadmissibility

September 22, 2018

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & info at tiyaimmigration dot com; Tel (from abroad): 001-7037728224;

https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Aik Wan Kok at Tiya represents companies, employers, individuals and families, located nationwide and internationally, in U.S. Immigration Law. We focus on diverse immigration cases such as extraordinary ability; national interest waiver; PERM; green card; N-400 Naturalization; various waivers; H cases; L executive, manager and specialized knowledge professional; E treaty investor/trader; cases with USCIS, U.S. Department of Labor, U.S. Consulates and National Visa Center.

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Implementing New Immigration Policy on Referral for Removal/Deportation

Tiyalaw — Wed, 26 Sep 2018 23:12:37 +0000

Implementing New Immigration Policy on Referral for Removal/Deportation

On October 1, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin implementing updated immigration policy (issued on June 28, 2018) on removal (deportation).

A removal proceeding is initiated by filing a Form I-862, Notice to Appear (NTA) with the Immigration Court. Although U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have authority to issue NTAs, USCIS may also initiate NTAs.

Generally, NTA issuance applies to following situations:

1. National security cases.

2. USCIS will continue to issue NTAs in the following circumstances:

(a) Termination of Conditional Permanent Resident Status and Denials of Form I-751, Petition to Remove the Conditions of Residence (8 CFR §§ 216.3, 216.4, 216.5).

(b) Termination of Conditional Permanent Resident Status and Denials of Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (8 CFR § 216.6).

(d) Denials of Nicaraguan and Central American Relief Act (NACARA) Section 202 and Haitian Refugee Immigration Fairness Act (HRIFA) adjustment of status applications: 1. NACARA 202 adjustment denials (8 CFR § 1245.13(m)); 2. HRIFA adjustment denials (8 CFR § 245.15(r)(2)(i)).

(e) Asylum, NACARA Section 203, and Credible Fear cases

3. Fraud, Misrepresentation, and Abuse of Public Benefits Cases under various circumstances.

(a) Criminal cases/issues under various circumstances

4. Denial of N-400 under various circumstances including, but are not limiting to:

(a) Good moral character (GMC) grounds based on the underlying criminal offense, and that the alien is removable.

(b) Ineligible for naturalization such as inadmissible at the time of adjustment or admission to the United States.

5. Upon issuance of an unfavorable decision for an application, petition, or benefit request, and the alien is not lawfully present in the United States, USCIS will issue an NTA. For examples, I-485 application for adjustment of status, I-539 application to extend or change nonimmigrant status

6. Other miscellaneous circumstances including, but are not limiting to: Upon request by a foreign national on a limited and discretionary basis.

7. The NTA policy issued on June 28, 2018 will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time – existing guidance for these case types will remain in effect.

For additional information, please visit:

https://www.uscis.gov/news/alerts/uscis-begin-implementing-new-policy-memorandum-notices-appear

and

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf

September 26, 2018

https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

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Not Selected in the H-1B Cap Lottery? Avoid Immigration Fraud: Maintaining Status in the U.S. and Reapplying.

Tiyalaw — Tue, 10 May 2016 19:36:32 +0000

Not Selected in the H-1B Cap Lottery? Avoid Immigration Fraud: Maintaining Status in the U.S. and Reapplying.

H-1Bs Not Selected or Filed When All H-1B Visa Numbers Are Used Up: Potential H-1B Candidates Who Continue to Stay in the U.S. Must Maintain Legal Immigration Status

H-1B candidates who have not made it to the Fiscal Year 2017 H-1B visa quota (October 1, 2016 employment start-date) have the options to have their H-1B cap petitions submitted to USCIS on April 1, 2017 (with an October 1, 2017 employment start-date) for the 2018 Fiscal Year H-1B visa cap/quota. Such H-1B candidates may also consider other immigration options such as other nonimmigrant status, work permit, and self-petition green card filings, if eligible.

Please note, if potential H-1B candidates are in the U.S. and are considering other immigration options such as the above, they must still continue to maintain legal immigration status in the U.S., in compliance with U.S. Immigration & Nationality Law.

Example of Failure to Maintain Status: Immigration Fraud

On April 5, 2016, special agents of the Homeland Security Investigations (HSI) of the U.S. Immigration and Customs Enforcement (ICE) arrested 21 individuals (e.g. brokers, recruiters) for conspiracy to commit visa fraud, conspiracy to harbor aliens for profits, and other offenses. In addition to the arrests of the defendants, the international students involved in the student-visa fraud or pay-to-stay scheme were also arrested by ICE for removal (deportation) purposes. The arrests were made in Virginia, Washington, New York, and New Jersey. HSI and ICE are part of the U.S. Department of Homeland Security.

The defendants fraudulently enabled around 1,076 international students, primarily from India and China, to enroll as F-1 students under the false pretense that they were participating in full courses of study at the University of Northern New Jersey (UNNJ) in New Jersey. All the international students were considered willing participants in the fraudulent F-1 scheme.

Unbeknownst to the defendants, UNNJ is a sting operation – a storefront serving as undercover operations – by HSI agents posing as school administrators to investigate criminal activities involving student visa fraud and alien harboring for profits. UNNJ was not staffed with any educators, had no actual academic curriculum, and did not have actual classes or educational activities.

The defendants solicited UNNJ and facilitated the international students’ enrollment at UNNJ to fraudulently obtain and maintain F-1 student visa or status, in exchange for commissions or kickbacks. The defendants also created fake student records such as transcripts, attendance records, diplomas, and projects, purchased by international students.

International students were issued UNNJ I-20 Certificate of Eligibility for Nonimmigrant (F-1) Student Status – for Academic and Language Students, for international students to remain in the U.S. These I-20 Certificates and phony student documents were then used to apply for H-1B Cap Petitions with the U.S. Citizenship and Immigration Services (USCIS). Additionally, the defendants used UNNJ to obtain work permit and employment authorization for their clients (international students).

H-1B Annual Work Visa Cap

On April 1, 2016, the U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B Cap Petitions for the annual 65,000 government-mandated cap for the 2017 fiscal year (FY), and the 20,000 exemption for H-1B under the U.S. advanced degree. On April 7, 2016, USCIS announced it had received more than sufficient H-1B Cap Petitions to meet the cap.

USCIS received over 236,000 H-1B Cap Petitions described above. USCIS had long completed its computer-generated random selection process (lottery system) which started on April 9, 2016.

Those under U.S. advanced degree not selected within the 20,000 visa numbers were processed under random selection or lottery for the 65,000 limit.

For some time now, USCIS has been issuing receipt notices for the above H-1B Cap Petitions filed under premium processing, regular processing, and U.S. advanced degree.

Normally, all USCIS receipt notices for selected H-1B Cap Petitions were being issued within several weeks of the lottery system (random selection process).

USCIS announced on May 2, 2016 that it has completed all its data entry of H-1B Cap Petitions selected in its lottery system. USCIS will now begin returning all H-1B Cap Petitions not selected. Due to the overwhelming number of H-1B Cap Petitions received, USCIS is not certain when it will complete returning all the unselected petitions but will issue an announcement once they are all returned to the employers (petitioners). Previously, H-1B Cap Petitions not selected in the lottery system were being returned throughout the summer.

USCIS urges employers (petitioners) not to inquire on the status of their H-1B Cap Petitions until they have received a receipt notice or a return of an unselected petition. This will allow USCIS to better-use their resources such as on adjudicating cases and completing the necessary return of unselected petitions.

On May 12, 2016, USCIS will begin premium processing of H-1B Cap Petitions selected in the lottery system. For H-1B Cap Petitions or eligible cases under premium processing, USCIS will adjudicate the case within 15 calendar days. Additionally, employers have the option to upgrade their selected H-1B Cap Petitions to premium processing.

All H-1B Cap Petitions above not selected in the lottery system will be returned with their filing fees. The filing fees for any H-1B Cap Petitions above with duplicate filings will not be returned.

What is an H-1B?

H-1B petitions are temporary work visas for specialty occupations. They are for positions requiring theoretical or technical expertise in specialized fields for qualified foreign nationals to live and work in the U.S. Many H-1B foreign nationals have successfully gone on to apply for and obtain lawful permanent residence status (also known as, green card).

Foreign nationals with at least a bachelor’s degree or the equivalent (equivalent degree and/or work experience) may be sponsored for H-1B petitions. A broad range of positions may fall under H-1B specialty occupations. Each case depends on the position’s overall circumstances, necessitating complex legal analysis.

Some H-1Bs Are Not Subject to H-1B Cap or Quota

Not all H-1B petitions are subject to the annual visa cap or quota. It depends on the types of H-1B petition being filed, or the types of entity-sponsor. For examples, foreign nationals who already have approved H-1B petitions or H-1B status may still have H-1B petitions filed for them to extend their H-1B status, or to change or add H-1B employers. Certain employers are cap exempt.

Duration of H-1B

In general, H-1B petitions/work visas are approved for three years each time (up to a total of 6 years). Under certain circumstances, H-1B work visas can be extended beyond the 6-year maximum time limitation.

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & koka at tiyalaw dot com; Direct dial from abroad: 001-703-772-8224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Need help with green card, work visas, work permit, sponsoring family, sponsoring employees, sponsoring relatives, hardship waivers, marriage waiver, and cases with USCIS, Department of Labor or immigration? We represent employers, companies, individuals, and families in U.S. Immigration & Nationality Law. Our clients are based nationwide in the U.S. and internationally. We represent diverse immigration cases in naturalization/citizenship, green card, work visas, waivers and other immigration matters. Some of our cases including, but are not limiting: extraordinary ability; national interest waiver; PERM with U.S. Department of Labor; I-130 for sponsoring relatives and families (child, spouse, brother, sister, stepchild); I-140 for employment; I-485 to adjust status; I-765 work permit/employment authorization; I-131 for international travel and returning to the U.S; I-601 extreme hardship waiver relatives of U.S. citizen or green card holder; I-751 joint filing or waiver; I-212 waiver for deportation or removal order; J waiver; H-1B professional worker/specialty occupation; H-2B temporary worker; L executive, manager and specialized knowledge professional transferring from overseas; B-1 business visitor to the U.S.; B-2 tourist visiting the U.S.; F-1 student coming to study in the U.S.; consular processing with U.S. consulates; National Visa Centers; filing cases with USCIS; filing cases with U.S. Department of Labor; PERM audit; RFE Request for Evidence; NOID Notice of Intention to Deny; and Immigration Courts.

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USCIS Expects to Accept Deferred Action Applications From Certain Young People on August 15, 2012!

Tiyalaw — Fri, 03 Aug 2012 18:19:29 +0000

USCIS Expects to Accept Deferred Action Applications From Certain Young People on August 15, 2012!

U.S. Department of Homeland Security (DHS) announced today (08/03/2012) that on August 15, 2012, U.S. Citizenship and Immigration Services (USCIS) is expecting to begin accepting deferred action applications from certain young people who were already brought to the United States as young children, and will make all forms, instructions, and additional information on the process available on August 15, 2012. Deferred action applications should not be filed to USCIS before August 15, 2012.

USCIS highlighted the following preliminary procedures:

Requestors – those in removal proceedings, those with final orders, and those who have never been in removal proceedings – will be able to affirmatively request consideration of deferred action for childhood arrivals with USCIS.
Requestors will use a form developed for this specific purpose.
Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox.
All requestors must provide biometrics and undergo background checks.
Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances.
The four USCIS Service Centers will review requests.

On June 15, 2012, the U.S. Department of Homeland Security (DHS) announced, effective immediately, certain young people who were already brought to the United States as young children may be considered for prosecutorial discretion of deferred action (temporary discretionary relief from facing removal/deportation) for two years, upon meeting stipulated criteria through verifiable documentation.

Young people who may meet the criteria, but who are not in removal (deportation) proceedings, should not submit their applications for deferred action to the U. S. Citizenship and Immigration Services (USCIS) yet. USCIS is still developing procedures for deferred action applications, and will implement application procedures within 60 days from June 15, 2012.

At this time, a young applicant, currently in removal proceeding (without a final removal order) and meeting DHS deferred action criteria, may contact ICE (U.S. Immigration and Customs Enforcement) at 1-888-351-4042. Eligible young people with unexpired voluntary departure and meeting deferred action criteria may consider the option of motion to reopen their cases with ICE.

Once granted deferred actions, applicants may apply for employment authorization documents and renewal of deferred actions.

The criteria for being considered for deferred actions are:

Came to the United States under the age of sixteen;
Have continuously resided in the United States for a least 5 years preceding the date of DHS deferred action memorandum (June 15, 2012) and are present in the United States on the date of DHS deferred action memorandum (June 15, 2012);
Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; AND
Are not above the age of thirty.

Deferred actions are adjudicated on a case-by-case basis. Deferred actions do not confer immigration status or right to citizenship, but such individuals may apply for employment authorization document (EAD). These deferred actions are where immigration exercises prosecutorial discretion of deferring prosecution of removal/deportation of these individuals.

August 3, 2012: By Aik Wan Kok Fillali, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & koka at tiyalaw dot com; Direct dial from abroad: 001-703-772-8224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

We represent employers, and individuals and their families in green card, citizenship and work visa matters in U.S. immigration law. We also have a focus on green card cases such as extraordinary ability, national interest waiver, PERM, family; work and related visa matters such as H, L, P, O, E, K.

This article is intended for informational purposes only, and should not be relied on as a legal advice or an attorney-client relationship.

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Deferred Actions for Young People of Low Enforcement Priorities (similar to the never-enacted DREAM Act)

Tiyalaw — Fri, 15 Jun 2012 15:04:05 +0000

Deferred Actions for Young People of Low Enforcement Priorities (similar to the never-enacted DREAM Act)

The U.S. Department of Homeland Security (DHS) announced today (June 15, 2012) , effective immediately, certain young people who were already brought to the United States as young children may be considered for deferred action (temporary discretionary relief from facing removal/deportation) for two years, upon meeting stipulated criteria through verifiable documentation. Once granted deferred actions, applicants may apply for employment authorization documents and renewal of deferred actions. The criteria for being considered for deferred actions are:

Came to the United States under the age of sixteen;
Have continuously resided in the United States for a least 5 years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; AND
Are not above the age of thirty.

Deferred actions are adjudicated on a case-by-case basis. Deferred actions do not confer immigration status or right to citizenship, but such individuals may apply for employment authorization document. These deferred actions are where immigration exercises prosecutorial discretion of deferring prosecution of removal/deportation of these individuals.

The U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration & Customs Enforcement (ICE) are expected to begin implementation of the application processes within 60 days.

June 15, 2012: By Aik Wan Kok Fillali, Attorney USA Immigration Services, at Tiya; Tel: 703-772-8224; Email: koka at tiyalaw dot com

https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

We represent companies, employers, individuals and families in green card, work visa and citizenship matters in U.S. immigration law. We also have a focus on self-petition green card cases such as extraordinary ability and national interest waiver.

This article is intended for informational purposes only; and should not be relied on as legal or any advice, or attorney-client relationship.

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New I-9 Employment Eligibility Verification Procedures

Tiyalaw — Thu, 14 Apr 2011 20:28:28 +0000

New I-9 Employment Eligibility Verification Procedures

On April 14, 2011, the U.S. Citizenship and Immigration Services (USCIS) announced that it has updated some of the procedures pertaining to Employment Eligibility Verification (Form I-9) process. The new changes become effective on May 16, 2011.

Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States.

The updated procedures include, but are not limited to matters such as: revising the list of acceptable documents by removing outdated documents and making technical amendments; prohibiting employers from accepting expired documents; and adding documentation applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands. The list of acceptable documents that employees may present to verify their identity and employment authorization is divided into three sections: List A documents, which show identity and employment authorization; List B documents, which show identity only; and List C documents, which show employment authorization only.

The USCIS indicates that employers may continue to use the current version of the Form I-9 (Rev. 08/07/2009) or the previous version (Rev. 02/02/2009). Employers may also access The Handbook for Employers, Instructions for Completing the Form I-9 (M-274) which was updated on Jan. 5, 2011, at www.uscis.gov/files/form/m-274.pdf

By Aik Wan Kok Fillali, Attorney at Law, at Tiya PLC; Tel: 703-772-8224

www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in greencard and work visa matters in U.S. immigration law. We also have a focus on self-petition green card cases such as extraordinary ability and exceptional ability.