USCIS Ombudsman Recommends Changes to EB-1 EA Adjudication Standards

A few days ago, on December 29, 2011, the USCIS Ombudsman has issued a report and set of recommendations urging USCIS to take proactive steps to ensure clear, consistent and predictable standards are applied to immigrant visa applications under the first employment-based preference category (EB-1) for aliens with extraordinary ability (EA).

Background on the Current EB-1 EA Adjudication Standards

The Ombudsman report and its recommendations were triggered by the lack of clear standards and guidance after the December 22, 2010, USCIS policy memorandum which applied a Ninth Circuit decision, Poghos Kazarian v. US Citizenship and Immigration Services, to certain employment-based petitions filed for individuals with extraordinary ability, outstanding professors and researchers, and exceptional ability professionals.   The policy guidance provides a two-part test to determine eligibility: (1) an evaluation of whether the petitioner provided the requisite evidence; and (2) a final merits determination.   However, as a result of the December 22, 2010 memo, our office (and other in the community) has seen inconsistent adjudications, errors in applying the new standards and, simply, confusion.

Among the main issues with the current EB-1 adjudication approach are (1) the current standards for I-140 adjudication allow for too much subjectivity — in other words, adjudicators can make decisions which are difficult, if not impossible, to challenge, if applied incorrectly; (2) the December 22, 2010 memorandum’s two-part review is not required by the Kazarian decision, and even if it was, the standard has not resulted in clearer standard of review; (3) immigration officers who examine I-140 petitions in the EB-1 category lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability”; and (4) USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination under the two-part test mandated by the December 22, 2010 memo.

The Ombudsman’s Recommendations to USCIS

The Ombudsman report makes several recommendations to USCIS seeking to address the concerns raised after the December 22, 2010 memo.

1.  Conduct Formal Rulemaking to Clarify the Regulatory Standard.

Essentially, the Ombudsman’s office urges USCIS to engage in a process whereby USCIS would propose a rule, incorporating the EB-1 regulatory standard, and then subject that rule to public review and comment, as required by the Administrative Procedure Act.

The use of the APA rulemaking process would assist both adjudicators and others in the immigration legal community to clarify the adjudicatory standard for EB-1s.  The ability to submit written comments to the proposed rule is also supplemented by a requirement that USCIS issues a written statement explaining how it has responded to the public comments.  The APA rulemaking process would provide substantive standards for adjudicators to use in adjudications, and for individuals and employers to use in preparing petitions.  If public comment were negative, USCIS could incorporate reasonable suggestions into a revised rule to accommodate legitimate stakeholder concerns.

2.   In the Interim, Provide Public Guidance on the Application of  a Final Merits Determination

While USCIS goes through the formal rulemaking process, outlined above, the Ombudsman’s office recommends that USCIS provide interim clear objective standard for evaluating the totality of the supporting evidence submitted as part of any EB-1 application.     According to the recommendation, effective guidance would explain that an adjudication may include a limited subjective analysis, but cannot involve discretion, and how to apply subjectivity without leading to arbitrary or inconsistent adjudications. Clear guidance would enhance the quality and consistency of adjudications, and lead to fairer, more predictable outcomes.

3.  In the Interim, Train and Provide Additional Clear and Specific Guidance to Adjudicators on Proper Preponderance of Evidence Standard Application in EB-1 Cases

Additionally, while USCIS goes through the rulemaking process recommended in #1 above, the Ombudsman’s office recommends that USCIS provide adjudicators with additional training and materials clarifying what constitutes proof of: extraordinary ability; outstanding professor/researcher status; and exceptional ability, by a preponderance of the evidence.

Conclusion

We applaud the USCIS Ombudsman’s recommendations on the EB-1 standards.   Our office has witnessed first-hand lack of cohesion by USCIS when dealing with EB-1 filings and we have, on at least some occasions, counseled very cautious approach when applying for EB-1 cases, mainly due to the lack of predictability of the review standards.    The EB-1 extraordinary ability category is intended to attract the brightest talents from a number of fields; instead, the current lack of clear standards has the effect of deterring some very good applications.

While the report contains recommendations, we hope that USCIS would consider it and take steps to implementing it.  We will continue to monitor this topic and provide relevant updates.   In the meantime, please do not hesitate to contact us or subscribe to our free weekly newsletter.

Update on H.R. 3012 – Fairness for High-Skilled Immigrants Act Clears the U.S. House of Representatives

There has been a considerable amount of discussion, excitement and, unfortunately, some incorrect rumors over the past few weeks regarding possible changes to the way employment-based immigrant visas are allocated.   Our office has been receiving many requests to comment on and speculate on what may happen with the proposed legislation.   To avoid fueling rumors, we wanted to wait until Congress takes some concrete steps towards the passage of this legislation before we provide updates.

About H.R. 3012

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced on September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

H.R. 3012 Clears the House of Representatives; More Work Remains Ahead

On November 29, 2011, the House passed H.R. 3012 by a vote of 389-15 with no additional amendments. The measure now moves on to the Senate for consideration.  A brief reminder:  the fact that H.R. 3012 has been approved by the House does not make it a law.   To become a law, the Act must be passed, in identical form, by both the House and the Senate, and then signed into law by the President.

Many would expect that the Act to pass the Senate quickly.   Unfortunately, indications from here in Washington, DC suggest otherwise.  What is the hold-up?   The answer is politics.   After the House passed the Act on November 29th, Senator Charles Grassley of Iowa, host of the upcoming presidential election caucuses, promptly placed a hold on the bill, which is expected to have broad support from his Senate colleagues.

Conclusion

While it should be encouraging to see that H.R. 3012 cleared the House, the Act is still far from being a law.  With the presidential election politics, the Act may not be taken up by the Senate for some time.   Even then, we do not know if it will be passed by the full Senate in identical form.   As a result, much work remains to be done for the Act to become a law.    We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Does Change in H-1B Work Location Require an H-1B Amendment, in Addition to a New LCA?

Our office handles a substantial number of H-1B work visa petitions for a variety of U.S. employers and we often share our direct experiences with the H-1B work visa program.   This article is intended to share our experience with H-1B work visa petitions where there is a change of the job location once the H-1B work visa petition has been approved and during its validity.

The Problem – H-1B Workers Changing Job Locations

Many consulting companies who hire H-1B holders place their workers at third-party client sites.   It is very common for these H-1B workers to change projects, end clients or simply to relocate to a different client site during their H-1B validity period.   In such cases, the question arises, What should be done to ensure that the H-1B employer and employee remain in compliance with the relevant H-1B regulations?

There is fair amount of confusion among H-1B employers and workers with respect to their obligations when there is a change in the work location.   Below we discuss what has been currently the recommended approach and also what USCIS has recently announced.

Currently:  Change in H-1B Job Location Requires a New LCA

Pursuant to previous USCIS guidance, our office often advises that when there is a change in the job location, but all of the other terms of an H-1B petition remain valid — title, duties, salary — then all the petitioning employer must do is file a new LCA for the new job location(s) and ensure that the proper posting and compliance for each new LCA has been done.

This approach is supported by the Adjudicator’s Field Manual 31.2(e) which states that “[t]he mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.”

The relevant regulations, in 8 CFR 214.2 specify that  “[t]he petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition.”   (emphasis added).   As a result, the question becomes what is “material change.”   In light of previous guidance, a change in location only was not considered a material change.

Possible Changes in Interpretation in “Material Change” – California Service Center and Upcoming USCIS Guidance

In recent discussions with the California Service Center, some of which is prompted by a number of “Notice of Intent to Revoke” notices, it becomes apparent that the California Service Center is starting to consider a change in the job location a “material change” and, as a result, requiring an H-1B amendment to be filed.   According to the California Service Center, as of August 10, 2011, “it is the position of [California Service Center] Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.”

It is worth noting that no such guidance has been issued by the other service center processing H-1B petitions – the Vermont Service Center.   As a result, an apparent conflict arises between both Service Centers — because the Vermont Service Center has not provided any guidance on the issue, it may be inferred that H-1B petitions filed with the Vermont Service Center do not require amendment when there is change in the job location.

Conclusion

We are aware that USCIS is working on official guidance on this topic which would, hopefully, provide clear guidance applicable to both service centers.  Unfortunately, there is no known or anticipated release date.   In the meantime, in abundance of caution, we are starting to recommend that H-1B amendment petitions be filed when there is a change of job location, at a minimum, for petitions with the California Service Center, but also for petitions filed with the Vermont Service Center.   If you are not sure whether a petition has been filed with the Vermont or California Service Centers, please see this guide to service centers and receipt numbers.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

USCIS Issues “Clarifications” for Entrepreneur Immigrants: Self-sponsored H-1B and EB-2 NIW May be Possible, EB-5 Streamlined

USCIS Director Alejandro Mayorkas just announced a number of initiatives intended to boost the ability of immigrant entrepreneurs to obtain immigrant benefits for themselves, as part of the Obama administration’s goal to boost hiring and jobs. Director Mayorkas has announced a number of initiatives and “clarifications” of existing temporary and permanent work visas which should make it easier for entrepreneurs to remain in the U.S.

The Problem Immigrant Entrepreneurs Face

A number of foreign national entrepreneurs face significant difficulties in obtaining permission to work and engage in the kind of entrepreneurship and job creation the economy needs.   Currently, the H-1B temporary work visa program is off-limits to many individual entrepreneurs, as a result of the January 8, 2010 Neufeld Memorandum which required each H-1B work visa petition to show that the petitioning employer has the right to control, including to hire and fire, the foreign national employee.   Most often entrepreneurs are the owners or have a controlling interest over a company, and the right to control in many cases cannot be shown.   Effectively, the Neufeld Memorandum prohibited H-1B self-sponsorship for foreign entrepreneurs.   For background, please see our prior articles relating to the Neufeld Memorandum.

Similarly, the permanent work visa program (or green card) limits the ability of foreign entrepreneurs to obtain benefits due to the lack of employer-employee relationship in many cases.    Other than the EB-5 category (see more below), in most cases, immigrant entrepreneurs must have a U.S. sponsor employer which can provide the employer-employee relationship, in a way discussed above.    Due to the fact that the EB-5 green card category requires an investment of $1 million, among other requirements, few foreign entrepreneurs qualify for it, at least at the initial stage of their endeavors.

Finally, the EB-5 category, as discussed above, has qualifying requirements and processing procedures which are not suitable for many small businesses.   The EB-5 category, in addition to having relatively high capital requirements, takes a long time.   Entrepreneurs who have the capital and decide to apply must go through several months of paperwork to find out whether their permanent residency visa is approved.   This uncertainty, and the possible inability to engage in employment in the U.S. during this time, make the EB-5 option difficult for many.

USCIS Clarifications:  H-1B Self-Sponsorship Possible With Specific Corporate Governance Structure

As a result of increased criticism and hoping to spur job creation and growth, USCIS has clarified the rules with respect to H-1B temporary work visas for the benefit of foreign entrepreneurs.   An H-1B petition would still have to show the employer-employee relationship between the sponsor entity and the entrepreneur; but in cases where the foreign entrepreneur is also an owner, USCIS has clarified that this can be done by structuring the company’s corporate governance in a way to allow a board (or similar entity) to exercise control over the entrepreneur (and employee).    For example, if there is a board of directors (or a committee of the board) which has the right to control (including to hire and fire) the entrepreneur-employee, then USCIS, under the new clarification, should deem that the right to control has been established.

USCIS has provided a “Frequently Asked Questions” document which seeks to provide additional information and answers to common questions.    It makes clear, however, that the Neufeld Memorandum remains unaffected.

USCIS Clarifications:  EB-2 NIW Self-Sponsorship Possible When Job Creation/Growth Can be Shown

Additionally, with respect to self-sponsored EB-2 National Interest Waiver (NIW) permanent visa category, the government has clarified that a foreign entrepreneur may qualify for a self-sponsored EB-2 NIW category if he/she can show that the business enterprise would benefit the national interest of the United States.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

Prior to the current clarification, the EB-2 NIW category was used most often by professionals whose work can be shown to benefit the U.S. by providing a specific benefit or service.    Now, USCIS has clarified that job creation and economic growth, either direct or indirect, could be considered to be in the U.S. national interest and could allow foreign entrepreneurs to obtain permanent residency under the EB-2 NIW category.

USCIS has published a “Frequently Asked Questions” document on its website clarifying this new approach.  USCIS has indicated that they will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies.

Changes to Streamline the EB-5 Investor Green Card Program

The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed a number of changes to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application.   USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.   Hopefully, this would provide the kind of fast processing and additional certainty about the process many foreign investor entrepreneurs need.

Premium Processing to Expand to Include EB-1 Multinational Executives and Managers

Additionally, USCIS has announced that it intends to reinstate the premium processing option for EB-1 I-140 petitions filed on behalf of multinational executives and managers.    A processing time of 15 calendar days under the premium processing option would address a frequent concern by foreign managers and executives that it may simply take too long for them to be able to join a business operation in the U.S.  The USCIS announcement is unclear on the effective date of this change, but we will monitor the availability of this option and provide an update.

Conclusion

We welcome USCIS Director Mayorkas’s announcements and welcome the “clarifications” and changes he has just announced.   At the same time, we realize that these “clarifications” must be properly communicated to the field officers and adjudicators so that when a properly prepared self-sponsorship H-1B or EB-2 NIW petition is filed, it is given the due benefit under the new guidance.   Our office will be monitoring new developments on this topic and we would be providing relevant updates on our website and via our weekly newsletter.  In the meantime, please do not hesitate to consult us if we can be of any assistance.

Ombudsman Recommends EAD Processing Changes

The USCIS Ombudsman office has released a report and a recommendation to USCIS regarding changing policies with respect to I-765 Application for Employment Authorization Document (EAD) cases.

The Problem

Many employers and individuals who rely on EAD cards for employment find it frustrating that there are no reliable processing times for the EAD cards.   For most employment with EAD cards, employment is authorized only when the employee has a valid EAD card.  In other words,  if an EAD card expires and a renewal is not filed on time (with or without fault of the employee) or if the EAD application takes long time to be approved, then the employee, upon expiration of the EAD card and while waiting for the renewal to be approved, must stop working.   This brings a lot of difficulty to employees and employers.

USCIS is required to issue EAD cards within 90 days.   However, often USCIS is not able to do so.  Several years ago, local service centers were permitted to issue interim cards for EAD applications pending for more than 90 days.  This option is not currently available and the only redress an EAD applicant has is to seek expedited processing of his or her EAD application.   Expedited processing, however, is discretionary and unpredictable.

The Ombudsman’s Recommendations

To address some of the problems with the current EAD application process, the Ombudsman makes several recommendations to USCIS, after making a very thorough, interesting (for some) and somewhat critical review of the current EAD application review framework.

The Ombudsdam report, after reviewing the currently-available options for EAD applicants, and after concluding that such options are inadequate, makes five recommendations.

1. Establish methods at local USCIS offices where EAD applications can be resolved;
2. Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
3. Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
4. Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
5. Issue replacement EADs with validity dates beginning on the date the old EAD expires.

Conclusion

As our office handles many EAD applications for a number of categories, many of which remain pending close to the 90-day period, and having to do a number of expedited processing EAD applications, we certainly realize that the current system does not serve the needs of employers and employees very well.   It is very difficult to see how in these challenging economic times, when an employee has to stop working and potentially lose his or her job due to delayed EAD processing.  As a result, we welcome the Ombudsman’s recommendation to USCIS and hope that USCIS would consider all of the proposed changes.

In the meantime, and even if the recommendations are fully adopted, we remind our clients and readers to always apply for EAD as soon as possible, and ideally about 120 days before the expiration date of the current EAD card.   Please contact us if we can be of any help.

Report: Immigrant Workforce Now Predominantly High-Skilled

A Brookings Institution report, and a Washington Post article provide an updated overview of the composition of the immigrant labor force.   According to the Brookings report, for the first time the proportion of highly skilled immigrants exceeds that of low skilled immigrants in the United States.

The report cites that 30 percent of the country’s working-age immigrants, without taking into account legal status, have at least a bachelor’s degree (definition of highly skilled), while 28 percent lack a high school diploma (definition of low-skilled).   Although the foreign-born population in the United States has increased dramatically in the past 30 years, until 2007 or so, the number of low skilled labor exceeded that of high skilled immigrants.   Only after 2007, due to increased numbers of F-1 students and H-1B skilled work visas, has the proportion of skilled immigrants increased.

The report also looks as geographic areas and the highly skilled/low skilled composition for those areas.  Generally, coastal cities and established “gateway” metropolitan areas attract more highly skilled workers, while areas near the U.S.-Mexico border attract a higher percentage of low skilled immigrants.

The report will certainly fuel the debate over immigration reform in the U.S.   However, even without its political implications, the report provides an interesting analysis of the composition of highly/low skilled immigrants in the United States.

Can I Travel to U.S. with Valid H-1B Visa and Pending (or Approved) H-1B Transfer When Prior H-1B Petition Has Been Revoked?

Our office receives a number of inquiries from current and prospective clients, employers and individuals, as to whether an H-1B worker who is beneficiary of a pending H-1B transfer petition can be readmitted into the U.S. based on the valid H-1B visa stamp and the pending H-1B transfer petition.

Reported Incidents of Refused H-1B Admissions

There is a lot of confusion on this subject, especially after reported incidents where Customs and Border Protection (CBP) agents have refused to admit H-1B workers attempting to enter the U.S. with a valid H-1B stamp (from a prior employer) and evidence of pending H-1B transfer petition.   Unfortunately, there are confirmed reports of CBP agents refusing to admit such H-1B workers in cases where the prior employer has withdrawn the H-1B petition (as the employer is required to do).

The Legal Framework

Pursuant to the relevant section of AC21 (§105) and as further discussed in the January 29, 2001 Pearson Memorandum, an H-1B beneficiary may be re-admitted to the United States in H-1B status to work for a different employer than the original petitioner if the alien possesses a valid, unexpired H-1B visa (unless exempt from the visa requirement), and if the alien can prove he or she was previously admitted in H-1B status and the alien’s current employer timely filed a new H-1B petition before the alien began work.

CBP Expected to Take Action to Ensure Uniform Application of the Legal Framework

During a recent AILA/CBP exchange, CBP has agreed that a former employer’s H-1B petition withdrawal should not impact a foreign national’s eligibility for AC21 H-1B portability based on a timely-filed H-1B petition by a new employer when the foreign national is seeking admission based on an H-1B visa issued pursuant to the prior employment.   CBP has further indicated that if the foreign national has an otherwise valid H-1B visa from the prior employment, and has evidence of a timely filed H-1B petition by a new employer (Form I-797 receipt or approval notice), the individual should be admitted on the basis of the old visa.

To ensure consistent application of these rules, CBP has agreed to send a reminder to their field offices that no new visa is required even though the prior petition has been withdrawn and revoked.

Conclusion

We are encouraged by CBP’s willingness to inform their field offices of the applicability of these regulations.   Despite this, it is possible that an H-1B worker may be denied admission by a CBP agent after misapplication of these regulations.    To complicate matters further, not all H-1B workers who have pending (or approved) H-1B transfer petition by a new employer and who seek to be admitted into the U.S. know whether their prior employer has withdrawn their H-1B petition.

As a result, a safer approach would be to for a H-1B worker seeking admission to the U.S. on H-1B status based on pending (or approved) H-1B transfer petition to be prepared to point to the relevant regulations discussed here and/or to ask to speak to a CBP supervisor at the point of entry and to explain that H-1B admission not be denied due to the fact that the prior employer’s H-1B petition has been revoked.

Our office also is happy to provide individual case consultations, which may include preparing a document package addressed to the CBP agents to explain the legal framework and to facilitate an H-1B worker’s admission into the U.S.   Please contact us if our office can be of any assistance.

USCIS Proposes Major Changes to the EB-5 Investor Program

Last week, in a press release, USCIS announced a number of significant enhancements to the EB-5 Immigrant Investor program.  Note that these are proposed changes which are expected to be published on June 17th for public comment and possible implementation at a later date.

About the EB-5 Program

In 1990, the U.S. Congress created the fifth employment-based preference category (EB-5) for qualified foreign entrepreneurs seeking to invest in a business that will benefit the U.S. economy and create or save at least 10 full-time jobs. The basic amount required to invest is $1 million, although that amount is reduced to $500,000 if the investment is made in a rural or high unemployment area.  Of the approximately 10,000 EB-5 green cards available each year, 3,000 are reserved for foreign nationals who invest through a Regional Center.

A Regional Center is a private enterprise or corporation or a regional governmental agency with a targeted investment program within a specific region.   The Regional Center Investment Program allocates 3,000 green cards each year for people who invest in designated Regional Centers.  The program does not require that the foreign investor’s enterprise itself directly employ 10 U.S. workers.  Instead, it is enough if 10 or more jobs will be created directly or indirectly as a result of the investment. As a result, he Regional Center Investment Program aids foreign investors by directing and professionally managing their investment in the designated business and geographic focus of their Regional Center.

The Proposed EB-5 Changes

First, USCIS proposes to accelerate its processing of applications for job-creating projects that are fully developed and ready to be implemented.  USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service, which guarantees processing within 15 calendar days for an additional fee of  ($1,225).

Second, USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 Program requirements. EB-5 Regional Center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and quickly address questions or needs related to their applications.

Third, USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 Regional Center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

Conclusion

We welcome these changes to the EB-5 program as they seek to make the program more investor-friendly and transparent.   However, especially in times when job-creation by foreign investors should be a priority, these changes are a good step forward which we expect to be followed by more proposed changes to make the program more transparent and investor friendly.   Please feel free to subscribe to our free weekly newsletter for additional updates on this and related topics.

Public Charge – Overview and Description

The concept of a “public charge” has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation.  The idea is that the U.S. taxpayer should not support new immigrants, at least for an initial period of their admission into the U.S.   An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge.

Background

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 permanent resident (obtaining a 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.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.   As a result, there is some confusion as to what kind of benefits do constitute a public charge and what kind of benefits do not.   With USCIS guidance, we seek to provide guidance.

Public Charge – Definition

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.”

See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In determining whether an alien meets this definition for public charge inadmissibility, a number of 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.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that 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.   Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.   Each determination is made on a case-by-case basis in the context of the totality of the circumstances.  See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the USCIS guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• 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 (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
• Job training programs
• In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non-cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
• Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.   Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

Conclusion

As described above, a public charge can have very serious consequences on one’s immigration process.  As a result, we caution that the information provided above is based on general USCIS guidance which can vary based on individual case facts.   We urge our clients and readers to conduct extensive research (and/or consult us) before accepting benefits which may be deemed to be public charge.

Report on Unauthorized Immigrant Population

The Pew Hispanic Center has released its most recent report on the unauthorized immigrant population.  As of March 2010, there were an estimated 11.2 unauthorized immigrants in the U.S., a number unchanged from the year prior.   This lack of change follows two years of decline from a high of an estimated 12 million in 2007.  According to the report, unauthorized immigrants were 3.7% of the nation’s population in 2010 and 5.2% of the labor force (down from the peak of 8.4% in 2007).

Additional key points of the report include:

• The number of unauthorized immigrants decreased from 2007 to 2010 in Colorado, Florida, New York and Virginia. The combined population in three contiguous Mountain West states-Arizona, Nevada and Utah-also declined.
• In contrast to the national trend, the combined unauthorized immigrant population in three contiguous West South Central states-Louisiana, Oklahoma and Texas-grew from 2007 to 2010.
• Although the number of unauthorized immigrants in the U.S. is below 2007 levels, it has tripled since 1990, when it was 3.5 million and grown by a third since 2000, when it was 8.4 million.

The complete report is available online in PDF format.