Category: Alerts

Today USCIS implements its new public charge rule nationwide.  The rule was previously enjoined in Illinois, but the U.S. Supreme Court lifted the injunction last week, allowing USCIS to implement the rule in all 50 states.

In addition, the Department of State (DOS) will also implement the new public charge standards beginning February 24, 2020 pursuant to the Office of Management and Budget (OMB) approving DOS’s  Form DS-5540, Public Charge Questionnaire. While the DS-5540 is now required for immigrant visa applicants (i.e., “green card” applicants) at U.S. consulates abroad, according to the updated Foreign Affairs Manual,  DOS  may also require nonimmigrant (i.e., temporary) visa applicants to provide specific financial evidence or to complete a Form DS-5540, in whole or in part, or to respond orally to questions from the form at visa interviews.

As previously reported, in general, individuals seeking admission to the U.S. must show they are not likely to become a public charge. The new public charge rule dramatically expands the definition of pubic charge for individuals seeking to extend or change their temporary status in the U.S., as well as for individuals applying for lawful permanent resident status.

Nonimmigrants seeking a change or extension of status in the U.S. will be required to show that they have not received certain public benefits exceeding a designated threshold as of the rule’s implementation date.  Information about DHS’s public charge rule, including the implicated benefits, may be found here.

Individuals applying for adjustment of status to lawful permanent resident will be required to provide extensive financial documentation, including credit reports, to establish that they will not become a public charge in the future. These individuals will be subject to a discretionary “totality of circumstances” test that will weigh such factors as the applicant’s age, health, household size, level of education and skills, financial assets  and liabilities, among others.  Applicants may be subject to ongoing credit checks while their applications are pending, over months, and in many cases, years.

Foreign nationals and their employers should expect that it will take longer to analyze, prepare and file applications given the scope of the new public charge inquiry and the increased documentation that will required. For additional information, please contact your designated Gibney representative or email info@gibney.com

On February 5, 2020, the U.S. Department of Homeland Security (DHS) announced that New York residents will no longer be eligible to apply or re-apply for several Trusted Traveler Programs (TTPs), which serve to expedite travel screening and entry to the U.S. at major airports nationwide.

WHAT THIS MEANS FOR NEW YORK RESIDENTS

• All New York residents (including U.S. citizens and Lawful Permanent Residents) will no longer be eligible to apply (or re-apply) for U.S. Customs and Border Protection (CBP) TTPs including Global Entry, FAST, SENTRI and NEXUS.
• For now, enrollees with current TTP memberships may continue to participate in designated programs until their current membership expires, but will be unable to re-apply once their current membership expires.
• New York residents with pending TTP membership applications will be denied.
• TSA Pre-Check, the TTP that offers faster airport security lines for domestic travel, was not specifically named in the DHS letter. It is unclear how the Administration’s action will impact participation in TSA Pre-Check.

BACKGROUND

The TTP restriction is DHS’s response to New York State’s Driver’s License Access and Privacy Act (known as the “Green Light Law”), which took effect in December 2019. The law allows all New York residents aged 16 and older to apply for a standard (not for federal purpose) non-commercial driver license or learner permit regardless of their immigration status in the U.S. Proponents of the Green Light Law view it as a public safety measure, as it allows all New York residents regardless of immigration status to be registered drivers with the state. DHS’s complaint is that the law limits the ability of the federal government to access state driver’s license information. TTPs entail extensive national security vetting independent of any state program, including state driver’s license programs. Moreover, a New York State driver’s license conveys no right to participate in a TTP. In this respect, the Administration’s punitive action against New York residents appears to be politically motivated.

It is anticipated that approximately 175,000 New York residents will be removed from the TTPs by the end of 2020, and that between 150,000 and 200,000 New Yorkers will be unable to renew their memberships in each of the next five years. In addition, more than 80,000 New Yorkers who have already applied for new TTP membership will not be permitted to participate.

New York State has not yet indicated whether it will pursue legal action against the Trump Administration. A senior advisor to New York Governor Andrew Cuomo stated “This is obviously political retaliation by the federal government and we’re going to review our legal options.”

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

On January 31, 2020, the President signed a Proclamation imposing visa and admission restrictions on Eritrea, Kyrgyzstan, Nigeria, Sudan, Tanzania and Myanmar (Burma). Restrictions for these countries are limited to immigrant visa (“green card”) programs and include individuals seeking permanent resident status through family or employment-based sponsorship, or pursuant to the Diversity Lottery program.  The restrictions will take effect February 21, 2020.

What This Means for Employers and Foreign Nationals

• For nationals of Kyrgyzstan, Nigeria, Eritrea and Myanmar (Burma): Eligibility for immigrant visas is suspended, with limited exceptions where eligibility is based on having provided assistance to the U.S. government.
• For nationals of Sudan and Tanzania: Nationals from these countries will no longer be eligible to participate in the annual Diversity Lottery program.
• Foreign nationals who have already been issued immigrant visas are not affected by the new restrictions.
• Foreign nationals from these countries may still be issued nonimmigrant (temporary) visas, such as business visitor visas, student visas and temporary work visas. However, these individuals should expect increased scrutiny in visa issuance and at ports of entry to the U.S.
• Foreign nationals who believe they may be subject to the restrictions should consult with immigration counsel before departing from or planning travel to the U.S.

Exemptions under Expanded Travel Ban

The following individuals from the covered countries are exempt from the expanded travel ban:

• U.S. citizens and lawful permanent residents (green card holders).
• Foreign nationals admitted or paroled into the U.S. on or after the effective date.
• Foreign nationals with valid travel documents that are not visas issued on the effective date or thereafter.
• Dual nationals traveling on a passport from a non-designated country.
• Foreign nationals traveling on diplomatic visas.
• Individuals already granted asylum and refugees granted admission to the U.S.
• Individuals granted withholding of removal, advance parole, or protection under Convention Against Torture.

Prior Travel Bans Remain in Effect

The existing admission restrictions for foreign nationals from Iran, Libya, Somalia, Syria, Yemen, North Korea and Venezuela remain in place. These restrictions have been in place since December 4, 2017. Country specific information is available from the U.S. Department of State and the Department of Homeland Security.

Obtaining a Waiver

An application for a waiver may be made to the Department of State through a consular post abroad. To obtain a waiver, an applicant must demonstrate undue hardship if entry were denied, entry would not pose a threat to national security and entry is in the national interest.  In practice, waivers are discretionary and rarely granted.

For more information on this evolving issue, please contact your designated Gibney representative or email info@gibney.com.

Today USCIS announced that, except for in the state of Illinois, it will implement its public charge rule as of Monday, February 24, 2020.  USCIS is expected to publish updated forms, instructions and guidance on its website during the week of February 3, 2020.

As previously reported, in general, individuals seeking admission to the U.S. must show they are not likely to become a public charge. The new public charge rule dramatically expands the definition of pubic charge for individuals seeking to extend or change their temporary status in the U.S., as well as for individuals applying for lawful permanent resident status.

Nonimmigrants seeking a change or extension of status in the U.S. will be required to show that they have not received certain public benefits exceeding a designated threshold as of the rule’s implementation date.

Individuals applying for adjustment of status to lawful permanent resident will be required to provide extensive financial documentation, including credit reports, to establish that they will not become a public charge in the future. These individuals will be subject to a discretionary “totality of circumstances” test that will weigh such factors as the applicant’s age, health, household size, level of education and skills, financial assets  and liabilities, among others.  Applicants may be subject to ongoing credit checks while their applications are pending, over months, and in many cases, years.

Gibney will be working with clients to prepare for these substantial changes.  Foreign nationals and their employers should expect that it will take longer to analyze, prepare and file applications given the scope of the new public charge inquiry and the increased documentation that will required.