- US Customs and Border Protection Releases Apprehensions at the Southwest Border for Fiscal Year News from the Courts...

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1 Table of Contents 1. Openers ABCs of Immigration: Immigration Reform and Control Act Compliance Tips AskVisalaw.com Border and Enforcement News Siskind Summary The Proposed Public Charge Rule Siskind Summary Top Takeaways from the Proposed Public Charge Rule Siskind Summary The Texas DACA Preliminary Injunction Ruling, August 31, US Customs and Border Protection Releases Apprehensions at the Southwest Border for Fiscal Year News from the Courts Board of Immigration Appeals Finds Accessory to a Felony Charge Constitutes Aggravated Felony News Bytes USCIS Begins Accepting Copies of Negative O Visa Consultations From Labor Unions USCIS Both Expands and Delays Premium Processing Suspension for Cap-Subject H- 1B Petitions... 45

2 7. Washington Watch Trump Administration Presents Plan for Asylum Seeking Separated Families In the News at ABIL Attorney General Delivers Remarks to Largest IJ Class in History Pro Bono: Visit to a Remote Detention Facility in Georgia Updates from the Visalaw.com Blogs State Department Visa Bulletin: October Openers Dear Readers: Immigration doesn t take a break from being major news. In the past month, DHS released a proposed regulation that purports to cover the obscure subject of barring public charges from the US but would actually completely upend the US immigration system and impose the point system that the Trump Administration tried to negotiate unsuccessfully with Democrats last spring. And as I m writing this, news has emerged that the US and Canada reached an agreement to continue NAFTA, putting to rest the question of whether NAFTA s important immigration provisions will remain. Also, USCIS implemented the previously announced policy allowing the agency to issue Notices to Appear upon the denial of a benefit, something that has concerned many. Finally, USCIS is expected by year s end to issue a proposed rule revoking work authorization for H-4 spouses. This month we review many of these subjects and more. And as always, we invite readers to contact us if they would like a consultation with one of our lawyers. Just go to Regards, Greg Siskind *****

3 2. ABCs of Immigration: Immigration Reform and Control Act Compliance Tips [This month s ABCs of Immigration issue is adapted from Greg Siskind s book, co-authored by Bruce Buchanan, The I-9 and E-Verify Handbook.] What penalties does an employer face for Form I-9 violations? Immigration Reform and Control Act (IIRCA) violations can lead to substantial fines and debarment from government contracts for employers. Employers who knowingly hire unauthorized employees or who commit paperwork violations are subject to penalties, even if all employees are authorized to work. Depending upon the employer s history of violations, fines for knowingly hiring unauthorized workers can range from $548 to $21,916 per employee. It is also possible for employers who knowingly hire or continue to employ unauthorized employees to be barred from competing for government contracts. Additionally, repeated hiring or employment of undocumented workers can lead to criminal prosecution. Paperwork violations can result in hefty fines, with each I-9 with a substantive error, be it a mistake or missing item, resulting in a penalty ranging from $220 to $2,191 per form for the first offense. The penalty is determined by the percentage of I-9 errors, and though the exact amount of penalty at each level was not available at the time of this publication, an educated estimate can be found below: 0-9% - $220; 10-19% - $545; 20-29% - $873; 30-39% - $1,202; 40-49% - $1,530; and 50%+ - $1,859. Second offenses begin at approximately $871, maxing out at $2,191 depending on the percentage of violations. For third offenses, the cost of each error is $2,191. To put this in perspective, an employer that has 100 employees, for example, and has substantive errors on 50 Forms I-9 could face a fine of more than $100,000. Discretion with regard to the assessment of these fines lies primarily with U.S. Immigration and Customs Enforcement (ICE) investigators. Separate from federal violations, many states have laws penalizing employers which violate their immigration laws and the Immigration reform and Control Act (IRCA), including barring such employers from state contracts and revoking their business license. Civil and criminal penalties for IRCA violations are listed below:

4 Hiring or continuing to employ unauthorized aliens Fines will vary depending on past violations: First offense: $548 to $4,384 for each unauthorized employee. Second offense: $4,384 to $10,957 for each unauthorized employee. Subsequent offenses: $10,957 to $21,916 for each unauthorized employee. Failing to comply with the Form I-9 requirements The fine is $220 to $2,191 per individual employee for each substantive and uncorrected technical error, failing to properly complete, retain, or make available for inspection Forms I-9. U.S. Immigration and Customs Enforcement (ICE) will consider the following factors in mitigating or aggravating the fine by 5 percent factor: Business s size. Employer s good faith. Seriousness of the violation. Whether the individual was, in fact, unauthorized to work. History of violations by the employer. Injunctions In the event the U.S. Attorney General has reasonable cause to believe an employer s engagement in a pattern of unlawful employment, recruitment, or referral activities, the Attorney General may bring a civil action in the appropriate U.S. district court requesting relief, such as temporary or permanent injunction, restraining order, or other order against an Immigration Reform and Control Act (IRCA) violator. Criminal Penalties Employers who have Immigration Reform and Control Act (IRCA) violations can be criminally sanctioned. Both employers and their representatives who engage in a practice or pattern of hiring or continuing to employ unauthorized employees face fines upwards of $3,000 per employee along with imprisonment of up to six months. Indemnity Bonds Employers requiring their employees to post a bond or indemnify the employer against IRCA violations can be fined up to $2,191 per violation and subjected to return the money to the employee. Document Fraud

5 Employers who assist in the production and use of false documents for employees to use for documenting employment eligibility are subject to penalties, as is to be expected. Depending on whether it is the employer s first offense, fines range from $452 to $9,054. For a first offense, fines and imprisonment of up to five years may be imposed, with subsequent offenses possibly resulting in 15 years imprisonment. What are the penalties for unlawful discrimination? IRCA Once it has been determined that an employer has been found to have engaged in prohibited discriminated practices under the IRCA, the U.S. Department of Justice s Immigrant and Employee Rights Section can utilize several methods of rectification. The Immigrant and Employee Rights Section has the authority to seek an order requiring an employer to: Hire individuals adversely affected with or without back pay (if back pay is ordered, there is a limit of two years). Pay the U.S. government civil penalties, possibly significant Post noticed to employees regarding their rights and the employer s obligations. Educate all personnel involved in IRCA compliance about IRCA s anti-discrimination rules. If applicable, remove a false performance review or false warning from a personnel file. If applicable, lift restrictions placed on an employee s assignments, work shifts, or movements. Document abuse carries with it a separate $181 to $1,811 monetary penalty for each individual subjected to discrimination. Penalties for immigration-related employment discrimination range from $452 to $3,621 per individual for a first offense to $5,432 to $18,107 per individual for the third or greater offense. Title VII Employers who have been found to have violated Title VII of the Civil Rights Act may be ordered to fulfil one or more of the following requirements: Hire, reinstate, or promote with back pay and retroactive seniority the individual who was subjected to the discrimination Post notifications for employees with informing them of their rights and the employer s obligations. Remove false or derogatory information from an employee s personnel file.

6 It is also possible for financial penalties to be imposed under Title VII of the Civil Rights Act for financial losses and mental anguish in addition to punitive damages for employers who act with malice or reckless indifference. Under either the IRCS or Title VII of the Civil Rights Acts, the prevailing party could potentially be ordered to pay attorney s fees. Under IRCA, if the losing party s argument does not have reasonable foundation in law and fact, then reasonable attorney s fees may be awarded reasonable attorney s fees. It is stated in the IRCA that the U.S. government cannot be held liable for attorney s fees, effectively meaning that only the employer would absorb this cost. Under Title VII, however, a judge has the authority to award reasonable attorney s fees, expert fees included, to either prevailing party, and the U.S. government can be held liable for costs just the same as the employer. Can employers who tried in good faith to comply avoid penalties? Yes. As long as an employer complies with the Form I-9 requirements in good faith, the employer would have a good-faith defense, even if he or she has been found to have hired an unauthorized employee. It would be the responsibility of the government to demonstrate that the employer had actual or constructive knowledge of the employee s unlawful presence. For paperwork violations that are technical, employers may be excused if they have made a good-faith attempt at compliance. This good-faith provision is not applicable if the Department of Homeland Security (DHS) notified the employer of the issues, and the employer did not correct these issues within a span of 10 days. The good-faith provision is also not applicable to employers who have engaged in a pattern or practice of violations. What is the process for imposing penalties? If an ICE investigation leads to the determination that a violation of the employer sanctions rules has occurred, it may either issue a Notice of Intent to Fine (NIF) or a Warning Notice. A Warning Notice must contain a statement identifying the basis of the fine and specify which sections of the law have been violated. In the event an NIF is issued, the notice must include the basis for the charge, the sections of the law which were violated, and the penalty which is to be imposed. Additionally, it must inform the employer of its right to counsel, of its right to a hearing before an administrative law judge (ALJ), and of the possibility that any statement made by the employer may be used against it. If the employer wishes to challenge the fine, it must file for a hearing before an ALJ within 30 days of being served the notice. Without an appeal being filed, ICE will issue a final order 45 days from the issuance of the NIF. The employer can negotiate to lower the fine, if an appeal is filed. If an agreeable solution is not reached, the employer may litigate the matter before the ALJ. Are entities at a company liable in addition to the one division targeted for penalties?

7 Once an order is issued against a specific entity in a family of distinct corporations, separate entities within the corporate family which coordinate their own hiring are not considered subject to the order. How does U.S. Immigration and Customs Enforcement decide which cases to investigate? U.S. Immigration and Customs Enforcement (ICE) may investigate cases on its own accord, not necessarily based on a complaint is has received. Once ICE does receive a complaint, it has the discretion to determine whether the complaint has a reasonable probability of validity and whether to investigate. Does ICE need to provide advance notice of a Form I-9 audit? It is a requirement that ICE provide three days notice before inspecting Forms I-9. The employer must make the forms available at the location which ICE requests. In what format must Forms I-9 be provided to ICE auditors? The original forms need to be provided for inspection, with the exception that recruiters or referrers for a fee who designate an employer to handle Form I-9 completion are allowed to present copies of the Forms I-9. If an employer retains electronic versions of Forms-I-9, the employer needs to retrieve and reproduce the Inspecting officer specifically requests, in addition to the associated audit trails indicating who accessed the computer system and the actions performed on the system in a specific time window. The employer needs to provide the inspecting officer with the necessary hardware and software as well as access to personnel and documentation to locate, retrieve, read, and reproduces the requested Form I-9 documentation and associated audit trails, reports, and other related data. Finally, the inspecting officer is allowed to ask for an electronic summary of all the immigration fields on an electronically stored Form I-9. What if records are kept at a different location from where the U.S. Immigration and Customs Enforcement agents will be visiting? If forms are stored at a different location than the worksite, the employer is required to inform the inspecting officer as to the separate location and to cooperate with the inspector by making the forms available either at the storage location or at the office of the government agency conducting the inspection. Can an employer be penalized if it properly completed Form I-9, but the employee turns out to be unauthorized? No. Employers that adhere to the rules of the Immigration Reform and Control Act (IRCA) will have a good-faith defense against any penalties that may be imposed for knowingly hiring an unauthorized employee. However, this is based on the assumption that the

8 employer did not otherwise have knowledge, actual or constructive, of the employee s lack of work authorization. How much in fines was paid by employers in 2014 for Form I-9 violations? In 2014, employers were assessed over $16 million in fines on 642 final orders. For reference, 2013 saw 637 final orders with penalties of more than $15.8 million. The statistics for 2015, 2016, and 2017 are currently unavailable, though ICE approximated that there were 1,200 inspections in 2016, a figure which should be similar to the 2017 total. Anecdotal evidence, however, suggests the number of inspections in 2017 to be substantially larger. Aside from penalties under the Immigration Reform and Control Act, are there other risks associated with improperly completing Forms I-9? Yes. There are numerous other reasons incentivizing diligent compliance with the Form I-9 requirements of the Immigration Reform and Control Act (IRCA). They include: Qualifying to do business with large employers that now require contractors to be in compliance. Qualifying for government contracts with local, state, and federal agencies that require compliance. Avoiding problems in a merger or acquisition where an employer s Form I-9 records are requested as part of a due-diligence review. Avoiding liability under state laws that penalize employers for Form I-9 violations (including revoking business licenses and barring access to state contracts.) Avoiding lawsuits filed by employees who have faced immigration problems as a result of an employer s errors (particularly when such errors might have been identified if an employer re-verified an employer s Form I-9 and such re-verification failed to take place. ***** 3. AskVisalaw.com In our AskVisalaw.com section of the SIB, attorney Ari Sauer answers immigration law questions sent in by our readers. If you enjoy reading this section, we encourage you to visit Ari s blog, The Immigration Answer Man, where he provides more answers to your immigration questions. You can also follow The Immigration Answer Man on Facebook and Twitter.

9 If you have a question on immigration matters, write Ask-visalaw@visalaw.com. We can t answer every question, but if you ask a short question that can be answered concisely, we ll consider it for publication. Remember, these questions are only intended to provide general information. You should consult with your own attorney before acting on information you see here. *** QUESTION: I filed an I-130 petition for my wife, who is in India. When I filed the I-130, I was a permanent resident. Now I am a citizen. What is the process for having USCIS process my I-130 as the wife of a US citizen? THE IMMIGRATION ANSWER MAN ARI SAUER: When an I-130 is filed under the F-2A preference category, as the spouse of US permanent resident, and the petitioner later is naturalized and becomes a US citizen, the I-130 petition automatically moves to the Immediate Relative category. However, the USCIS office that approved the application for naturalization will not notify the USCIS office that is processing (or that approved) the I-130 petition, so the petitioner must notify USCIS that they are now a US citizen. You do this by sending a copy of the Naturalization Certificate, along with a copy of the I-130 Receipt Notice (or the I-130 Approval Notice, if it has already been approved) to the USCIS Service Center that is processing the I-130, along with a letter asking them to update the I-130 petition now that the petitioner is a US citizen. The address to use to send the notice is the address listed at the bottom of the I-130 Receipt Notice or the I-130 Approval Notice, although if you have received a Notice of Transfer informing you that the I-130 has been transferred to another USCIS office, then you would use the address listed at the bottom of the Notice of Transfer. However, if you are working with an immigration attorney for the I- 130 petition, you should let your attorney know of your new US citizen status and follow their instructions. *** QUESTION: I am in the US is E-2 status. My husband is a Permanent Resident and he filed an I-130 petition for me last year. My priority date is available now. Can I file an I-485 while my I-130 is still pending? THE IMMIGRATION ANSWER MAN ARI SAUER: You can file the I-485 Application for Adjustment of Status while the I-130 Immigrant Petition is still pending (meaning it has been filed with USCIS and you have the Receipt Notice, but has not yet been approved), assuming you meet all other eligibility requirements, including that the priority date for the petition has been reached under the DOS Visa Bulletin. Just a bit of warning, though. It appears that you are relying on the DOS Visa Bulletin s Dates for Filing chart, rather than the Final Action Dates chart. Please note that you can only file an I-485 based on the Dates for Filing chart in a month where USCIS has authorized use of the Dates for Filing chart. Each month, a few days to a week after the DOS Visa Bulletin is posted for the following month, USCIS will issue their own statement as to whether the Dates for Filing chart for that month can be used for the early filing of

10 I-485 applications in that month. For some months, USCIS will not accept I-485 applications unless the priority date is current on the Final Action Dates chart of the Visa Bulletin. To check whether the USCIS allows you to use the Dates for Filing chart for each month, go to ***** 4. Border and Enforcement News Siskind Summary The Proposed Public Charge Rule USCIS has released a long-anticipated, controversial proposed rule that would significant expand the government s use of a provision of the Immigration and Nationality Act that bars the admission of immigrants who are deemed likely to become a public charge. The rule would cover not all immigrants and non-immigrants seeking admission to the US, adjustment of status, and extensions and changes of status for non-immigrants. The 447-page rule defines public charge as used in Section 214(a)(4) of the Immigration and Nationality Act, defines the types of public benefits to be considered in public charge inadmissibility determinations, and the various factors to be considered by the government in making public charge determinations. The proposed rule also sets out the procedure for people to pay public charge bonds in adjustment of status cases. Finally, the agency is proposing revisions to existing USCIS information collections and new information collection instruments to accompany the proposed regulatory changes. The public will have 60 days to comment ending on November, The proposed rule also comes with the withdrawal of a 1999 proposed rule on public charge criteria that never was finalized. I. Public Participation description of the commenting process II. Executive Summary DHS states that the purpose of the proposed rule is to ensure aliens subject to the public charge inadmissibility ground are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations. A. Major Provisions of the Regulatory Action - Amending 8 CFR 103.6, Surety bonds used to address public charge concerns. - Amending 8 CFR adding fees for a new Form I-945, Public Charge Bond and Form I-356, Request for Cancellation of Public Charge Bond. - Adding 8 CFR which identifies categories of aliens subject to public charge inadmissibility determinations. - Adding 8 CFR which includes definitions regarding the public charge requirement.

11 - Adding 8 CFR which sets out the standard for determining the likelihood of becoming a public charge. - Adding 8 CFR which sets out an exemption and waiver process. - Adding 8 CFR which provides a methodology for calculating the annual aggregate amount of the portion attributable to the alien for certain benefits. - Amending 8 CFR to add public charge bond procedures for adjustment of status applications. - Amending 8 CFR mandating the denial of requests for admission, extension, and maintenance of status for non-immigrants who have received public benefits described in 8 CFR (b). - Amending 8 CFR to require a new Form I-944, Declaration of Self- Sufficiency, for adjustment of status applicants. B. Costs and Benefits USCIS notes that there will be new fees for the I-944 accompanying adjustment of status applications and for non-immigrant extension of stay and change of status applicants. Also, there will be new time burdens associated with complying with the new rule. Plus, people who have to post public charge bonds will have the costs associated with those bonds and the I-945 and I-356s that are part of the bond process. These costs will be $45 million to $129 million per year. Over ten years, the cost would be $453 million to $1.29 billion. Additional costs for non-immigrants filing I-129s will range from $6 million to $60 million annually and $3 million to $31 million annually for I-539 applicants. DHS estimates those individuals and companies filing bonds using Form I-945 would be burdened $34,234 annually and those filing Form I-356 would be burdened $825 annually. USCIS is claiming savings to the government based on people not applying for benefits that will trigger public charge inadmissibility issues. DHS estimates that over 10 years, that between $15.9 billion and $19.3 billion fewer dollars will be spent. DHS notes that these reductions will have an indirect economic impact on health care companies, grocery stores, landlords, etc. but does not quantify these costs. DHS anticipates a likely increase in denials of adjustment of status applications, but doesn t offer an estimate of how many. USCIS will also have to staff a new unit charged with administering the new public charge bond process. III. Purpose of the Proposed Rule A. Self-Sufficiency people do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor and private organizations. DHS will consider the following minimum factors that reflect the likelihood an alien will become a public charge: - The alien s age - Health - Family status

12 - Resource - Financial status - Education and skills - An affidavit of support submitted by the alien s sponsor - Any other factor relevant to the likelihood of becoming a public charge Decisions will be based on determining that an alien is incapable of earning a livelihood, does not have sufficient funds in the US for support, and who has no person in the US willing and able to assure the alien will not need public support. B. Public Charge Inadmissibility Determinations USCIS notes that the statute lays out the broad factors to be used to determine is one is a public charge, but neither the statute nor the proposed 1999 rule outline the mandatory factors or explained how to weigh factors in the public charge inadmissibility determination. Also, the 1999 proposed rule only spoke to cash benefits, but this rule removes the artificial distinction between cash and non-cash benefits. IV. Background The main factors in determining public charge inadmissibility are 1) the factors involved in determining whether an alien is likely to become a public charge, 2) the relationship between public charge and 3) the consideration of a sponsor s affidavit of support. A. Legal Authority Outlines the sections of the INA that pertain to the public charge inadmissibility ground. B. Immigration to the United States Outlines how the immigrant visa and immigration system work. C. Extension of Stay and Change of Status Outlines how the non-immigrant extension of stay and change of status process works. Public Charge Inadmissibility Outlines the bar on admission for those deemed likely to become a public charge. The INA doesn t define public charge, but specifies applicable factors. Notes general requirement to present affidavits of support in family immigration cases and some employment immigration cases. Bonds are authorized in the statute, but have rarely been used in recent years. 1. Public Laws and Case Law Outlines the history since 1882 of the public charge bar including case law. 2. Public Benefits under PRWORA (the 1996 welfare reform law) Defined public benefit as any grant, contract, loan, professional license, or commercial license provided by an agency of the US and any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit.

13 (a) Qualified Aliens Under PRWORA, qualified aliens are eligible for federal means-tested benefits after 5 years and are not eligible for specified federal programs. PRWORA also defined which types of immigrants were covered by public charge inadmissibility and which types of benefits triggered admissibility issues. (b) Public Benefits Exempt under PRWORA Congress excluded benefits such as contracts, professional licenses and commercial licenses from the federal public benefit definition along with medical assistance for certain emergency medical conditions, short-term, noncase in-kind emergency disaster relief, public health assistance for immunizations, programs which deliver in-kind services at the community level (such as soup kitchens) and don t check recipients incomes, certain programs for housing or community development assistance administered by HUD. These benefits will not be covered by the proposed rule 3. Changes under IIRIRA the factors in the INA were set under the bill from It also set the affidavit of support requirements for all family immigration cases and certain employment-based ones. Although an alien may obtain public benefits for which he or she is eligible, the receipt of those benefits may be considered for future public charge inadmissibility determination purposes. 4. INS 1999 Interim Field Guidance the INS issued a field guidance in 1999 that identified how the agency would determine if a person is likely to become a public charge. The INS proposed the policies as regulations in May DOS issued a cable implementing similar guidance for visa applications and the FAM was updated as well. The 1999 changes focused on the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. The INS consulted with HHS, SSA and USDA and determined that relying on the government for either of these two forms of assistance is the best evidence of whether an individual is relying primarily on the government for subsistence. E. Public Charge Bond An alien determined to be inadmissible on public charge grounds he or she may be admitted in the discretion of DHS, if otherwise admissible, upon the giving of a suitable proper bond. DHS notes that public charge bonds have been around since the late 1800s. V. Discussion of Proposed Rule According to DHS, the rule does the following: - Defines public charge and public benefit - Establishes a framework under which DHS will evaluate those factors to determine whether or not an alien is likely at any time in the future to become a public charge - Clarify the role of a sponsor s affidavit of support - Sets certain factual circumstances that would weigh heavily in favor of determining an alien is not likely to become a public charge

14 - For applications for adjustment of status, the alien would be required to submit a form I Establish a public charge bond process in the adjustment of status context - Clarifies DHS s authority to set conditions for nonimmigrant extension of stay and change of status applications - Interprets the public charge inadmissibility and deportability ground A. Applicability, Exemptions, and Waivers The processes and evidentiary requirements proposed in this rule vary depending on the type of benefit and status an alien is seeking. 1. Applicants for Admission For nonimmigrant visas, the type of nonimmigrant status and the duration of the nonimmigrant s stay in the US would be considered in assessing whether the applicant has met his or her burden of demonstrating that he or she is likely to become a public charge. DHS notes that the process for people consular processing immigrant visas at consulates would not change under the proposed rule. Lawful permanent residents aren t considered to be applicants for admission upon their return from a trip abroad. Exceptions are when an LPR has abandoned his or her status, is outside the US for 180+ days, has engaged in illegal activity after departing the US, LPRs who have departed the US while in removal proceedings, LPRs who have committed certain offenses and LPRs attempting to enter the US without inspection. 2. Extension of Stay and Change of Status Applicants DHS is proposing to require an applicant for an extension of stay or change of nonimmigrant status to attest that he or she has neither received since obtaining the nonimmigrant status nor is likely to receive at any time in the future one or more public benefits under the proposed rule. DHS admits that 212(a)(4) applies to applicants for visas, admission, and adjustment of status, but that it is asserting the government s interest in ensuring alien s do not depend on public benefits to meet their needs. Aliens must remain self-sufficient for the entire period of their stay. DHS will now consider an alien s financial status in determining if the alien has maintained their current nonimmigrant status. Questions will be added to the I- 129 and I-539 regarding this. Employers will have to ask their workers about this in order to complete the forms. The proposed rule has a list of non-immigrant categories and whether they are subject to the public charge rule (dependent visas follow the rule for the principle): A-1, A-2 No A-3 Yes B-1/B-2 Yes C-1/C-1D/C-2/C-3 No CW-1 Yes

15 D Yes E-1/E-2/E-2-CNMI Yes E-3 Yes F-1 Yes G-1/G-2/G-3/G-4 No G-5 Yes H-1B/H-1B1 Yes H-1C Yes H-2A Yes H-2B Yes H-3 Yes I Yes J-1 Yes K-1 Not applicable K-3 Yes L-1 Yes M-1 Yes N-8 Yes NATO-1-7 No O-1 Yes P-1 Yes Q-1 Yes R-1 Yes S-5/6/7 Yes T-1 No TN Yes U-1 No V-1 Yes W-B Not applicable 3. Adjustment of Status Applicants DHS has a chart showing the applicability of the public charge to various types of adjustment cases and whether an I-864 Affidavit of Support is required: Family categories Immediate Relatives of US citizens subject/required Family 1 st subject/required Family 2 nd subject/required Family 3 rd subject/required Family 4 th subject/required Fiance (admitted as K-1/K-2) subject/required Amerasians born between 12/31/1950 and 10/22/1982 subject/exempt Amerasians born in Vietnam between 1/1/62 and 1/1/76 Not subject/exempt IW-6 Spouses, widows, widowers subject/exempt Immediate Relative VAWA applicant subject/exempt First Preference VAWA Not subject/exempt

16 Second Preference VAWA Not subject/exempt Third Preference VAWA Not subject/exempt Employment categories EB-1 Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140 EB-2 Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140 EB-3 Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140 EB-5 Subject/Not applicable Special immigrant categories Special Immigrant EB-4 Religious Workers Subject/Not applicable Special Immigrant EB-4 International employees of US government abroad Subject/Not applicable Special Immigrant EB-4 Employees of Panama Canal Subject/Not applicable Special Immigrant EB-4 Foreign Medical School Graduates Subject/Not applicable Special Immigrant EB-4 Retired employees of International Organizations Subject/Not applicable Special Immigrant EB-4 SL-6 Juvenile Court dependents Not subject/not applicable Special Immigrant EB-4 US Armed Forces Personnel Subject/Not applicable Special Immigrant EB-4 International Broadcasters Subject/Not applicable Special Immigrant EB-4 Iraqi/Afghan interpreters Not subject/exempt Refugee, Asylee, and Parolee categories Asylees Not subject/exempt Indochinese Parolees Not subject/exempt Polish and Hungarian Parolees Not subject/exempt Refugees Not subject/exempt Cuban-Haitian Entrants under IRCA Not subject/exempt HRIFA Not subject/exempt Other categories Diplomats Section 13 Subject/Exempt Individuals born in the US under diplomatic status Subject/exempt Diversity Visa Subject/Exempt W-16/W-26 legalization Subject/exempt T-1 Victims Subject/exempt American Indian Not subject/exempt Texas Band of Kickapoo Indians Not subject/exempt S visas Subject (but waiver available)/exempt Private Immigration Bill Depends on bill text/depends on bill text NACARA Not subject/exempt

17 Lautenberg Not subject/exempt Registry Not subject/exempt U Victims Not subject/exempt TPS Not subject/exempt 4. Exemptions Lists again the categories above that are outside the public charge framework. 5. Waivers The proposed rule at (b) lists categories Congress has authorized to apply for waivers of the public charge inadmissibility ground: - T nonimmigrants - S nonimmigrants - Applicants for adjustment of status under Section 245(j) (alien witness or informant) - Other waivers of the public charge ground in Section 214(a)(4) B. Definitions of Public Charge and Related Terms 1. Public Charge Not defined in the statute. DHS proposed to define it to be an alien who receives one or more public benefits, as defined in 8 CFR (b). Aliens subject to the ground should not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations. 2. Public Benefit DHS is defining public benefit to include a specific list of cash aid and noncash medical care, housing and food benefit programs where either 1) the cumulative value of one or more such benefits where DHS can determine the cash value of the benefit exceeds 15% of the Federal Poverty Guidelines for a household of one within a period of 12 consecutive months ( monetizable benefits ; or 2) for benefits that can t be monetized, the benefits are received for more than 12 months in the aggregate within a 36-month period ( nonmonetizable benefits ). In cases where there s a combination of both (and the benefits that can be monetized are less than 15%, then the threshold for receipt of non-monetizable benefits would be 9 months in a 36-month period. The rule will consider the following public benefits: - Monetizable benefits o Any Federal, State, local or tribal cash assistance for income maintenance including SSI, TANF, and Federal, State or local cash benefit programs for income maintenance (often called General Assistance in the state context) o Benefits that can be monetized under new 8 CFR Supplemental Nutrition Assistance Program (SNAP, previously known as Food Stamps)

18 - Section 8 public housing - Non-cash benefits that cannot be monetized o Medicaid (except for emergency medical conditions and benefits provided under the Individuals with Disabilities Education Act (IDEA) and benefits provided to foreign-born children of US citizen parents) o Premium and Cost Sharing Subsidies for Medicare Part D (the Medicare prescription drug benefit) and benefits provided for institutionalization for long-term care at government expense o Subsidized Housing under the Housing Act of 1937 (a) Types of Public Benefits Food, shelter and necessary medical treatment are basic necessities of life. A person who needs the public s assistance to provide for these basic necessities is not self-sufficient. DHS is including all cash assistance programs as part of the public benefits definition. Regarding non-cash benefits, the universe of such benefits is very large, but DHS is proposing to incorporate only a limited list of non-cash benefits (see the list above). DHS includes a table showing the average annual benefit per person for the various programs included on the list: Medicaid - $7426; SNAP - $1527; SSI - $6593; Federal Rental Assistance - $8121; Medicare Part D Low Income Subsidy - $2099; Children s Health Insurance Program - $2324; TANF - $1272. DHS believes the data shows that these programs are accessed by a great number of people subject to the public charge requirement (20% of foreign-born receive non-cash benefits and 2-4% receive cash benefits though the agency admits it cannot distinguish asylees and refugees in that number). (b) Consideration of Monetizable and Non-Monetizable Public Benefits DHS notes that for admissibility and adjustment of status purposes, the receipt of such benefits would be determined on a prospective basis, i.e. likely at any time to receive benefits above the proposed threshold(s). For extension of stay and change of status applicants, the determination is based on whether an alien has received since obtaining nonimmigrant status or is likely at any time to receive benefits above the proposed threshold. Query - What does likely mean? i. Primarily Dependent Standard and Its Limitations 15% of Federal Poverty Guidelines ( FPG ) is different than 1999 standard of being primarily dependent on public benefits (a person for whom the benefits are more than half of their income and support). DHS believes that 50% is too generous and a lot of people who are not self-sufficient are below that threshold. DHS believes that receipt of such benefits even in a relatively small amount or for a relatively short duration would in many cases be sufficient to render a person a public charge. DHS doesn t believe the plain text of 212(a)(4) requires a 50% threshold. ii. 15% of Federal Poverty Guidelines Standard for Monetizable Benefits

19 Under the formula for an individual, 15% means up to $1821 worth of monetizable benefits can be excluded in a 12-month period. DHS defends 15% as the right amount to distinguish between self-sufficient and not (though they just assert this is true without offering any evidence to support). DHS is requesting comments on whether 15% is the right number and also whether receiving lesser amounts should weigh in a totality of the circumstances test. iii. 12 Month Standard for Non-Monetizable Benefits In DHS s view, individuals who receive the non-monetizable public benefits covered by this rule for more than 12 months are unable to meet their basic needs without government help. Benefits are stacked. So, for example, if a person got Medicaid for 9 months and public housing for 6 months, if both occurred within the same 36-month period, it would amount to 15 months of non-monetizable benefits regardless of overlap. DHS seeks comment on this approach as well as alternatives. iv. Combination of Monetizable Benefits under 15 of FPG and One or More Non-Monetizable Benefits DHS believes reducing the 12-month timeframe by 3 months is reasonable and easily administered. (c) Monetizable Public Benefits This section lists and describes the covered benefits i. Supplemental Security Income (SSI) ii. Temporary Assistance for Needy Families (TANF) iii. General Assistance Cash Benefits iv. Supplemental Nutrition Assistance Program (SNAP) v. Housing Programs a. Section 8 Housing Choice Voucher Program b. Section 7 Project-Based Rental Assistance (d) Non-Monetizable Public Benefits i. Medicaid a. Description of Program b. Exception for Certain Medicaid Services (see above) notes that emergency medical conditions excluded including for emergency labor and delivery; states decide what is emergency c. Exception for Receipt of Medicaid b Foreign-Born Children of US Citizens applies often in adoption cases ii. Institutionalization for Long-Term Care Comment: This section seems particularly cruel. Includes hospital services, Intermediate Care Facilities for People with Intellectual Disability, Nursing Facilities, Preadmission Screening & Resident Review, Inpatient Psychiatric Services

20 for Individuals Under Age 21 and Services for Individuals Age 65 or Older in an Institution for Mental Diseases. iii. Premium and Cost Sharing Subsidies under Medicare Part D iv. Subsidized Public Housing (e) Receipt of Public Benefits by Active Duty and Reserve Servicemembers and Their Families DHS is proposing to exclude this population. (f) Unenumerated Benefits Only non-cash benefits listed in the rule count. Social Security retirement benefits, general Medicare and a wide range of Veteran s benefits would not be included. Also doesn t include worker s compensation and non-cash benefits that provide education, child development and employment and training. (g) Request for Comment Regarding the Children s Health Insurance Program (CHIP) DHS is considering adding to the list of included benefits. CHIP being considered and DHS is seeking comment. (h) Request for Comment Regarding Public Benefit Receipt by Certain Alien Children Basically, a child receiving public benefits is not necessarily a good indicator of future selfsufficiency. DHS wants comments on how to consider age. (i) Request for Comment Regarding Potential Modifications by Public Benefit Granting Agencies Agencies may choose to modify enrollment processes to warn immigrants about the consequences of accepting the benefits. DHS may decide on effective date depending on how long this process would take. 3. Likely at Any Time to Become a Public Charge DHS defines to mean likely to receive public benefits in the future. DHS notes that receiving benefits by itself doesn t mean an alien is likely to become a public charge. Depends on likelihood of future events. 4. Household DHS notes that while the number of children, including US citizen children, may count toward an alien s household size for purposes of determining inadmissibility on the public charge ground, the direct receipt of public benefits by those children would not factor into the public charge inadmissibility determination. (a) Definition of Household in Public Charge Inadmissibility Context If the alien is 21 or older, or under 21 and married, the household would include

21 - The alien - The alien s spouse, if physically residing with them - The alien s children physically residing with them - The alien s other children not physically residing with them if the alien is required to provide at least 50% of financial support - Any other individuals to whom the alien provides or is required to provide at least 50% of the individual s financial support; and - Any individual who provides to the alien at least 50% of the alien s financial support or who lists the alien as a dependent on his or her tax return If the alien is a child, the alien s household includes - The alien - The alien s children physically residing with the alien - The alien s other children who are receiving child support - The alien s parents, legal guardians or others providing at least 50% of financial support to the alien - The parents or legal guardians other children physically residing with the alien - The parents or legal other children who are getting child support - Any other individuals to whom the alien s parents or legal guardians provide or are required to provide at least 50% financial support or who are listed as dependents on the parents or guardians tax return. (b) Definitions of Household and Similar Concepts in other Public Benefits Contexts DHS says its definition tracks HUD s definition from 1937 Housing Act. Broader than IRS dependent definition. (c) Definitions of Household and Similar Concepts in other Immigration Contexts Uses same approach as affidavit of support. DHS is proposing to consider the affidavit of support in the totality of the circumstances when determining whether an alien is likely to become a public charge. But household in this rule doesn t include or exclude the sponsor and the sponsor s household. C. Public Charge Inadmissibility Determination DHS The public charge inadmissibility determination is a prospective determination based on the totality of an alien s circumstances at the time of adjudication. An affidavit of support may be deemed insufficient and the alien will be found inadmissible regardless of any other evidence submitted. 1. Absence of a Required Affidavit of Support If it s missing and it s required, it s an automatic denial. 2. Prospective Determination Based on Totality of Circumstances

22 DHS looks to whether the alien is likely to become a public charge and not whether the alien is currently a public charge. The past or current receipt of public benefits, alone, is insufficient to sustain a finding that an alien is likely to become a public charge in the future. Query Can a determination of becoming a future public charge be made if a person has never received public benefits? Whoa if true. Totality of the circumstances includes an alien s age; health; family status, assets, resources and financial status; and education and skills. The affidavit of support is also to be factored. The statute requires more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact tending to show that the burden of supporting the alien is likely to be cast on on the public, must be present. Note This seems to confirm that regardless of whether public benefits have previously been received or whether the person has an affidavit of support, DHS can look at the person and deem them to be a high risk and deny them the immigration benefit. D. Age DHS proposed to consider age primarily in relation to employment or employability and secondarily to other factors as relevant to determining whether someone is likely to become public charge. Being between 18 and 61 is a positive factor and being under 18 or over 61 is a negative factor. E. Health An alien s health is a factor that will be considered by DHS. The mere presence of a medical condition would not render an alien inadmissible. Rather, it will be evaluated in light of the effect that condition is likely to have on the alien s ability to attend school or work. Having private health insurance or the financial resources to pay the costs would be considered. Long-term care health care expenses to treat such a medical condition could decrease an individual s available financial resources. 1. USCIS Evidentiary Requirements - Any required Report of Medical Examination (I-693) or applicable DOS medical exam form; or - Evidence of a medical condition that is likely to require extensive medical treatment Consulates and CBP may require medical exams to determine medical inadmissibility of nonimmigrants. DHS would also consider other medical records such as a licensed doctor s attestation of prognosis and treatment of medical condition. 2. Potential Effects for Aliens with a Disability, Depending on Individual Circumstances

23 DHS will consider accepting an I-693 in any case. DHS says this rule doesn t violate the ADA by discriminating against people with disabilities. Seems like a problem, however, as it is definitely a factor in a public charge determination. F. Family Status Does the alien have a household to support? Does the size make the alien more or less likely to become a public charge? G. Assets, Resources, and Financial Status The 1999 guidance looked to the affidavit of support. But DHS argues that that s a separate requirement and they ll look at more than that for this factor. The alien will need to present independent evidence of assets and resources. Alien s own assets an resources are factored in and not just the affidavit of support sponsor. DHS will use the 125% of FPG to be the line to determine if household income is a positive or negative factor. An alien s financial status would also include the alien s liabilities as evidenced by the alien s credit report and score, as well as whether the alien has in the past, or is currently, receiving public benefits, among other considerations. [Undoubtedly controversial] 1. Evidence of Assets and Resources - Alien s gross household income, excluding income from public benefits - Any additional income from individuals not included in the alien s household who physically reside with the alien and whose income will be relied on - Any additional income to the alien from another person or source - The household s cash assets and resources, including as reflected in checking and savings account statement in the last 12 months; - The household s non-cash assets and resources that can be converted to cash within 12 months 2. Evidence of Financial Status DHS will review whether the alien has any financial liabilities or past reliance on public benefits and will look at the following evidence - If the alien has applied for or received any public benefit on or after the effective date of the final rule - If the person has been certified or approved to receive public benefits on or after the effective date of the final rule - If the alien has applied for or received a fee waiver for immigration benefits after the effective date of the final rule (i.e. that benefit becomes a trap) - Credit histories and credit scores - Whether the alien has private health insurance or the financial resources to pay for medical costs associated with a medical condition described in (b)(2). (a) Public Benefits