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Issue: #9
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September 2018
bringing immigration news updates since 2006
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Beach-Oswald Immigration Law Associates, PC
is a Washington, D.C. boutique firm devoted exclusively to immigration law. We have the highest possible rating for lawyers for legal acumen and ethical standards, and we have been practicing law since 1981. We are well versed in all aspects of immigration law, particularly, employment based immigration, citizenship, naturalization, asylum, deportation and removal, and temporary visas.
Our top-notch lawyers represent professional workers, business owners, families, and asylum-seekers from all over the world. We provide the absolute best professional service possible to our clients and aid them in every step of their immigration processes. We prioritize ensuring our clients are not only assisted with their immigration cases but are thoroughly educated about the processes, laws, and requirements. All of our attorneys and legal staff at Beach-Oswald have a genuine desire to help those in need. We ensure the highest quality of professionalism and legal expertise.
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BOILA Feature Grant Story
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MORE THAN 50 YEARS OF INTERNAL CONFLICT AND A RECENT PEACE AGREEMENT HAVE NOT BEEN ABLE TO STOP THE THREATS OF THE FARC.
Mr. Euclides Moscote Zarate and his wife, Mrs. Rosa Rodriguez and their 3 children Valeria, Cyndi Vanessa, and Carolina are natives and citizens of Colombia. Mr. Moscote and his family entered the United States on October 2013 on visitor's visas. Upon their arrival Mr. Moscote and his family expressed their fear to return to their home country of Colombia due to past persecution suffered at the hands of the Colombian terrorist group known as the FARC. Mr. Moscote and his family were paroled into the United States so that they could pursue their claim for asylum.
In January 2014, Mr. Moscote filed his application for asylum - well within the one year requirement stipulated by immigration law.
In Colombia, Mr. Moscote and his wife were both successful medical professionals. Throughout his professional career, Mr. Moscote managed a number of hospitals and clinics in the Department of Cesar, Colombia, a region of Colombia that is known for its extreme level of crime and violence due to such rebel groups as the FARC (Common Alternative Revolutionary Force) and the ELN (National Liberation Army). These rebel groups commonly kidnap and threaten individuals with known medical knowledge and expertise, like Mr. Moscote, as it is understood these individuals are wealthy and have access to vital medical equipment and medicines. These Colombian rebel groups commonly attack individuals in an attempt to hurt the Colombian government and people and coerce them into working with the rebel groups in order to bring about peace and security.
Mr. Moscote and his family fled to the United States for their safety. Mr. Moscote received a significant number of death threats from Colombian rebel groups via the phone, anonymous messages, and in person. These threats demanded equipment and money, demands Mr. Moscote refused to adhere to. Upon Mr. Moscote's refusals his life and the lives of his wife and daughters were threatened.
Mr. Moscote and his family came to Beach-Oswald in the middle of their Immigration proceedings seeking the advice of a well experienced immigration attorney. After consulting with Ms. Danielle Beach-Oswald and her staff, Mr. Moscote and his family decided to move ahead with BOILA.
BOILA immediately began to strategize how to present the strongest asylum case possible for the Moscote family. Mr. Moscote's basis for his asylum claim was not one normally used or approved by immigration judges. It was going to take a unique approach and strong documentation to show that Mr. Moscote and his family has suffered past persecution and were likely to suffer future persecution should they return to Colombia.
BOILA was able to provide substantial documentation and country condition research that further proved that Colombian rebel groups severely threaten, harm, kidnap and extort Colombians with known medical expertise and knowledge. Furthermore, the Colombian government refuses to investigate or prosecute these instances. The Colombian government would not be able to protect Mr. Moscote or his family.
After a tedious Individual Hearing before the Immigration judge at the Arlington Immigration Court, Mr. Moscote and his family's asylum application was GRANTED.
Now that the Moscote's asylum has been granted, this family has a new opportunity to grow and live without violence or persecution. Mr. Moscote and his family will be able to file for their green cards in one year and are now eligible for many benefits such as
eligibility to work in the U.S., financial assistance, medical assistance, employment preparation and job placement, and language training.
Because of the hard work and dedication that BOILA put into the. Moscote family's asylum case this family will stay together and not to be force to return to Colombia.
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Changes to Public Charge Policy
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"This new unilateral policy will radically change legal immigration, drastically limiting immigration for people earning less than $ 62,750 a year for a family of four."
Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. It was memorialized in the Immigration Act of 1882 and updated in the Immigration and Nationality Act of 1952. Further changes were made at the legislative and regulatory levels in the 1980s and 1990s, but by and large the test has remained the same.
Public charge
is used in immigration law to refer to a person who is likely to become dependent on the government for financial and material support. USCIS defines "public charge" as an individual who is likely to become "primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense."
Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."
In determining whether an alien meets this definition for public charge inadmissibility, several factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.
The USCIS guidance specifies
which Benefits are Subject to public charge consideration like cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called "general assistance" programs as well as specifies which benefits are not subject to public charge consideration as Medicaid and other health insurance and health services, Children's Health Insurance Program (CHIP), Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP), Housing benefits, Child care services, Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP),Emergency disaster relief, Foster care and adoption assistance, Educational assistance, Job training programs, In-kind, community-based programs, services or assistance, Non-cash benefits under TANF, Cash payments that have been earned and Unemployment compensations.
Recently there have been some changes regarding the public charge on immigration, this new unilateral policy taken in reference to this figure would radically change legal immigration, drastically limiting immigration for people who earn less than $ 62,750 a year for a family of four, through memorandum PM-602-0163,the Office of Citizenship and Immigration Services (USCIS) will apply seven new conditions to reject or withdraw Permanent Legal Residence or citizenship to immigrants, among which is placed at the same level someone who committed a crime or fraud with people who have applied for federal assistance, such as food or health.
There are conditions that the Department of Homeland Security (DHS) will apply to these immigrants susceptible to rejection of any immigration benefit, such as not showing access to health insurance, not being employed or being enrolled as a full-time student or even having received help in the last six months.
Those immigrants who have applied to any of the following federal programs may face problems obtaining a "Green Card" or citizenship:
- SSI, TANF, GA
- Medicaid
- State Children's Health Insurance Program (SCHIP)
- Any "health insurance subsidized by the government" (not explicitly excluded)
- Special Supplemental Nutrition Program for Women, Infants and Children (WIC)
- Supplemental Nutrition Assistance Program (SNAP)
- US Department of Housing and Urban Development (HUD)
- Energy Assistance Program for Low Income Households (LIHEAP)
- Reimbursable tax credits when the credit "exceeds the tax liability," including the tax credit for earned income (EITC), tax credit for children, tax credit for opportunity and superior tax credit
- Medicare, in cases where "premiums are partially or fully paid by a government agency"
- Pell Scholarships and other educational benefits
- Any other government assistance in the form of assistance or services.
Key Differences between Current and Draft Proposedd "Public Charge" Policies
- Definition of Public Charge
Current Rule:
An alien who has become or who is likely to become ''primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.''
Draft Proposed Rule:
A person who is dependent on public benefits. Public benefit means any government assistance in the form of cash, checks or other forms of money transfers, or instrument and non-cash government assistance in the form of aid, services, or other relief, except those benefits specifically excluded.
- Consideration of Use of Public Benefits in in a Public Charge Determination
Current Rule:
May take into consideration past and current receipt of cash public assistance for income maintenance or institutionalized long-term care and no weight should be placed on receipt of non-cash benefits or receipt of cash benefits for purposes other than income maintenance.
Draft Proposed Rule May consider:
- Whether individual has sought, has received, or is receiving any public benefit
- Whether individual has received any public benefit within the last two years
- Whether individual has received or is likely to receive any subsidized health insurance
- Benefits that May Be Considered for Public Charge Purposes
Current Rule:
- SSI
- TANF
- State/local cash assistance programs
- Public assistance for long-term care in an institution (including Medicaid)
Draft Proposed Rule:
- SSI
- TANF
- State/local cash assistance programs
- Public assistance for long- and short-term institutionalized care
- Any other federal public benefits for purposes of maintaining the individual's income
- Medicaid
- CHIP
- Premium subsidies for Marketplace coverage
- State/local subsidized health insurance
- SNAP (formerly, Food Stamps)
- WIC
- Transportation vouchers or other non-cash transportation services
- Housing assistance
- LIHEAP energy benefits
- Certain educational benefits, including Head Start
- Benefits that May NOT Be Considered for Public Charge Purposes
Current Rule:
- Medicaid and other health insurance and health services (except for institutional long-term care)
- CHIP
- Nutrition programs, including Food Stamps (now known as SNAP), WIC, the National School Lunch and Breakfast program, and other supplementary and emergency food assistance programs
- Housing benefits
- Child care services
- Energy assistance, such as LIHEAP
- Emergency disaster relief
- Foster care and adoption assistance
- Educational assistance, including Head Start
- Job training programs
- In-kind community-based programs
- State and local programs
- Earned cash payments (e.g., Social Security, veteran's benefits)
- "Special purpose" cash benefits or any other non-cash benefit programs
Draft Proposed Rule:
- Emergency or disaster relief
- Educational and child care block grants, including public school and school lunch programs
- Earned benefits (e.g., Social Security, veteran's benefits, Medicare)
- Services or benefits available to the community as a whole and not to a specific individual
- Government loans that require repayment.
These sweeping changes would put immigrant parents in a terrible bind. Lawfully residing parents that would like a green card to stay in the US permanently would be forced to choose between allowing their citizen children to avail themselves of the public benefits they need (and to which they are entitled) and someday getting a green card to keep their family together in the US over the long term.
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Explaining the Proposed Public Charge Rule to Clients
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On September 22, 2018 the Trump administration announced a proposed rule that would prevent immigrants from being eligible for permanent residency simply because at some point in the past, they received some type of basic health care support, nutrition assistance, or other vital services.
Under this proposed rule, millions of intending immigrants will be ineligible from securing lawful status in the U.S. Additionally, the American economy will suffer greatly due to the large number of hard-working and entrepreneurial immigrant that will be prevented from obtaining permanent residence. The U.S. economy will be weakened by creating unnecessary barriers to lawful status.
Moreover, the direct harm the proposed rule would cause to the U.S. economy, the USCIS case processing time delays will only further increase. This rule would impose a massive administrative burden on USCIS that would only exacerbate the delays.
For now, it remains only a proposed rule. It is not the law - yet. Once it has been officially published, the public will have an opportunity to submit comments in opposition. Until then, the rule is simply another attempt by the Trump Administration to fundamentally change our immigration system for the worse.
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Senator Cortez-Masto and 17 Other Senators Address Attorney General over ICE Intentions to Reopen Admin Closed Cases
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Senator Catherine Cortez-Masto and 17 other U.S. Senators have issued a letter to Attorney General Jeff Sessions, expressing concerns about ICE intentions to re-open and re-calendar 350,000 deportation cases that were administratively closed.
The letter comes as a direct response to Attorney General Sessions decision to strip immigration judges and the Board of Immigration Appeals (BIA) of their authority to administratively close cases. A decision that will only further increase the tremendous backlog facing the immigration court system.
Administrative closures allow immigration judges to temporarily relieve the number of cases on their docket and allows them to focus their attention on cases that are ready for adjudication. Many respondents whose cases are administratively closed have pending applications for relief with USCIS.
There are currently 730,000 pending cases in the immigration court system. The addition of the administratively closed cases - currently estimated at over 355,000 - will increase the backlog to well over one million. The Senators argue that Attorney General Session is using his authority to supersede decades of precedent by determining that "immigration judges and the BIA do not have the authority to suspend indefinitely immigration proceedings by administrative closure."
Senator Cortez-Masto and colleagues posed several questions to the Attorney General over how EOIR and ICE will be handling administratively closed cases, including a time frame for re-opening and how they plan to prioritize or decide which cases are re-opened first. The Senators requested a response in writing before September 27, 2018.
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Attorney General Jeff Sessions Limits Judges Ability to Dismiss Deportation Cases
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Last week Attorney General Jeff Sessions issued a decision that restricts a judges ability to terminate cases. Prior to this decision, immigration judges were able to terminate cases where non-citizens were eligible for citizenship or other lawful immigration status.
Sessions used an example of a judge who administratively closed an individuals case so she could pursue her consular processing interview after she had obtained the necessary waiver. Session argued that the availability of immigration relief and a need to reduce the court's docket was not a sufficient enough reason to administratively close a case.
Attorney General Sessions continues to use his administrative power to restrict immigration judges power and ability to make decisions on cases. By Sessions restricting the judges ability to terminate cases, Sessions is placing a greater number of people who would otherwise be eligible for relief in further danger of deportation.
As a result, immigration judges can only terminate cases in specific circumstances provided in the regulation or when they cannot prove the charges brought before them in the Notice to Appear. In addition to limiting the judges ability to terminate cases, Sessions has also limited the judges ability to administratively close cases and issue continuances.
Sessions is more focused on removing non-citizens from the country rather than trying to find a solution to the current backlog of more than 700,00 cases currently pending before immigration judges. Judges not only are being restricted in how they utilize their limited resources to properly prioritize and adjudicate cases in their dockets, but they are also being pressured to complete more cases. Sessions announced earlier this year that he is imposing a quota system on immigration judges.
More restrictions on immigration judges will not address the many flaws in our immigration court system, they will only produce more ineffectiveness and leave hundreds of immigrants without the fair process to which they are entitled under the law.
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Funding Immigration Deportation
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The Trump Administration has put a lot of money into the deportation system and specifically into the Immigration and Customs Enforcement (ICE). ICE has its own private airline operation known as ICE Air which it uses to deport thousands of immigrants back to their native homes.
Currently, ICE is $017 million over its budget. Deportation cost have gone up 30 percent in the last fiscal year as the Trump Administration continues to crack down on immigration in the U.S.
Ten times a week, ICE Air off loads hundreds of deported immigrants at the Guatemala City airport. Deportees are handcuffed or restrained as they fly into their countries of origins. There are no in flight entertainment systems on the plane and they are fed minimal meals such as plain white bread with a slice of American cheese and a cup of water. Deportees are offered the bare minimum on the flights. The focus is not on comfort but on the efficiency of deporting as many individuals as possible.
ICE Air flew over 97,000 deportees home last year. Most went to Guatemala, followed, in order, by Honduras, El Salvador, Haiti, the Dominican Republic, Brazil, Ecuador, and Colombia.
When there are not enough deportees to fill a charter flight, ICE buys tickets on commercial flights. This summer, however, several major carriers refused to fly children who'd been separated from their parents by the government.
ICE did not have a breakdown for the cost of a typical charter flight, but these international trips are expensive. An inspector general's report three years ago calculated the cost of charter flights at about 85 hundred dollars, per hour, regardless the number of passengers.
ICE Air relies on a network of contractors. The biggest was CSI Aviation of Albuquerque, New Mexico - whose contract with Homeland Security swelled from $88 to $96 million this year. In July, CSI says the ICE Air contract was awarded to a different company.
The budget for Department of Homeland Security, which includes Immigration and Customs Enforcement, is upwards of $47 billion. ICE's budget for custody operations is a record $3 billion dollars this year - up from $1.77 billion in 2010.
The Trump Administration is still seeking to add funds for the wall build along the U.S. border and Mexico which is likely to require hundreds of millions of additional funds.
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New Deportation Rule begins October 1
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Starting October 1, 2018 US will implement a new deportation rule to commence deportation proceedings against immigrants whose visas or other lawful status has expired.
USCIS will now be able to issue Notices to Appear (NTAs) to immigrants whose applications to change status or U.S. visas have expired.
USCIS says it will offer details to applicants on how they can review their information relating to their authorized period of stay in the US, validate their departure from the country, or check their travel compliance. Individuals with criminal records, who have committed visa fraud or who are seen as national security risks will continue to be the agency's priority.
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Cap-Gap Status and Work Authorization Extension
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F-1 Students who have pending H1-Bs, that remain pending on October 1, 2018 risk accruing unlawful presence in the U.S. if they continue to work unless they have valid work authorization documents, as their "stop-gap" work authorization is only valid through September 30. Due to the large caseloads, USCIS cannot guarantee it will be able to adjudicate H-1B change of status petitions for all F-1 students before October 1, 2018.
F-1 students who have a timely filed H-1B petition requesting a change of status to an H-1B and current employment authorizations extended through September 30th. This is referred to as filing the "cap-gap", meaning filing a "gap" between the end of the F-1 status and the beginning of the H-1B status. The "cap-gap" period starts when an F-1 student's status and work authorization expire and are extended through September 30 with October 1 being the requested start date of their H-1B employment.
If a cap-gap H-1B petition remains pending on or after Oct. 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization that extends past September 30, they may continued to work as authorized.
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USCIS Updates
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Proposed I-912 Fee Waiver Form Revision
USCIS is proposing to revise our Form I-912, Request for Fee Waiver, to remove the receipt of means-tested benefits from the eligibility criteria.
Individuals should use Form I-912 to request a fee waiver for eligible immigration benefit applications and petitions. When requesting a fee waiver, an alien must clearly demonstrate that he or she is unable to pay the fees. We will not accept a letter from the applicant stating they are unable to pay the filing fees or biometric services fees without a completed Form I-912 and supporting documentation, to include federal income tax transcripts or a Verification of Non-filing. With the proposed change, an alien may request a fee waiver if the documented annual household income is at or below 150 percent of the Federal Poverty Guidelines (FPG), or if the person can demonstrate financial hardship.
USCIS is permitted by regulation to waive certain fees, provided the party requesting the benefit is unable to pay the prescribed fee. The proposed form revision does not change the list of applications and petitions that are eligible for a fee waiver. For the complete list of applications and petitions that are eligible for a fee waiver, please refer to 8 CFR 103.7(c)(3).
USCIS Publishes Revised Form G-28 and Extends Grace Period for Prior Versions
USCIS has published a revised version of
We are also extending the grace period for prior versions of Form G-28. You may continue to use the 05/05/16 and 03/04/15 versions of the form until Nov. 19, 2018. Starting Nov. 19, 2018, we will only accept a Form G-28 with edition date 09/17/18 or 05/23/18. You can find the edition date at the bottom of the page on the form and instructions.
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