On October 15, 2019, a new rule goes into effect that will apply to immigrants seeking a green card (Lawful Permanent Residence). The rule applies to cases filed after October 15, 2019 and is particularly strict for those who receive public benefits. Applications already pending with USCIS on the effective date of the rule will not be subject to the rule.
Who does the rule apply to?
The rule applies to people who are seeking lawful permanent residency to enter or remain in the United States, through a family petition or adjustment of status. It does not apply to certain applicants under certain programs including:
- T Visa (trafficking victims);
- U Visa (victims of crimes);
- VAWA (victims of domestic violence)
- Special Immigrant Juvenile Status;
- NACARA, Refugees, Asylees
- Certain Cuban Adjustment Act and Haitian applicants,
What does it mean to receive public benefits?
Under the new rule, an applicant who has received public benefits for more than 12 months within a 36-month period will be affected. It is important to note that USCIS will only consider public benefits received directly by the applicant for his/her own benefit. DHS will not consider public benefits received on behalf of another. For example, a parent will not be punished for the public benefits received by their children unless the parent is also a listed beneficiary of the public benefit.
What kind of public benefits will affect my case?
Receipt by the applicant of public benefits such as:
- Most forms of Medicaid;
- Supplemental Nutrition Assistance Program (SNAP);
- Temporary Assistance to Needy Families (TANF);
- Supplemental Security Income (SSI);
- Section 8 housing assistance programs.
Are there any benefits that won’t affect my case?
Fortunately, there are some benefits that are excluded such as:
- Medicaid for children under the age of 21;
- Medicaid for pregnant women during pregnancy and for up to 60 days after giving birth;
- WIC (Special Supplemental Nutrition Program for Women, Infants, and Children);
- CHIP (Children’s Health Insurance Program);
- Disaster relief, FEMA;
- Affordable Care Act (Obamacare) subsidies;
- Emergency medical assistance, school lunch programs, foster care or adoption, student loans and mortgages, food pantries, homeless shelters.
The rule also excludes public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship.
My family is receiving public benefits, what should I do next?
If you have an immigration case that has already been filed, the rule will not apply to you. It will apply to cases filed after October 15, 2019.
If you are planning to file an immigration case, and you or your family members are receiving public benefits or is planning to seek public benefits, you should talk to an experienced immigration lawyer about your specific circumstances. Keep in mind that if you apply for public benefits on behalf of another person (such as a child), USCIS does not consider the benefit against you. This means that in most cases, public benefits received solely by the applicant’s children or spouse will not count against them. However, it is important to verify your circumstances with an experienced attorney. The lawyers at Garza & Associates are experienced in complex immigration matters. Call us at (713) 664-6200 to schedule a consultation.
An offense that involves domestic violence has serious consequences for immigrants, whether it is a misdemeanor or a felony. Last week, the Fifth Circuit Court of Appeals’ issued a decision in U.S. vs. Gracia-Cantu, No. 15-40227 (5th Cir. 2019) that a Texas conviction for Assault-Family Violence (Texas Penal Code §§ 22.01(a)(1) and (b)(2)), for which the term of imprisonment is at least one year, is a crime of violence. The court found that even unintentional force can be considered a crime of violence. The decision is retroactive, meaning that it applies to those convicted before and after the decision.
What does this mean for immigrants with domestic violence convictions?
Under immigration law, any “crime of violence” where a sentence of one year or more is imposed is considered an aggravated felony resulting in deportation. “Aggravated felony” is a term used to describe a category of offenses carrying the harshest immigration consequences. Noncitizens who have been convicted of an aggravated felony will not qualify for relief such as bond, asylum, cancellation of removal, or voluntary departure, and are barred from returning to the United States at any time in the future.
If you have a conviction or arrest for Assault-Family Violence, it is critical that you consult with an immigration attorney before filing any immigration paperwork. The attorneys at Garza & Associates have over 25 years’ experience handling complex immigration and deportation matters involving criminal convictions. Contact us at (713) 664-6200 for a consultation with an experienced attorney.
If your I-601A Provisional Waiver is denied, applicants may resubmit a new waiver application showing new or additional evidence. Although there is no appeal to an I-601A waiver, it is absolutely permissible to re-file a new waiver.
Applicants should contact a competent immigration attorney to determine the reason that USCIS denied the waiver. For example, if the I-601A waiver was denied because USCIS did not find enough proof of extreme hardship, then a new application should include additional evidence to show how the qualifying relative would suffer. The attorney should evaluate what the initial waiver was missing or if there is a more evidence or new circumstances to prove extreme hardship. In some cases, the waiver may be denied simply because it was not well organized or not well-prepared in the first place. Because I-601A waiver applications generally include a great deal of supporting documents and evidence, it is important that they be properly assembled in a way that lets the USCIS officer easily evaluate the arguments.
As of September 11, 2018, USCIS has the authority to deny any application that is incomplete or lacks sufficient evidence without first issuing a request for evidence (RFE) or notice of intent to deny (NOID). The new guidelines are a reversal of the current policy, which requires that an RFE be issued unless there is “no possibility” that the deficiency can be remedied. That is why it is more important than ever to make every possible effort to put together the strongest possible waiver in the first place.
Garza & Associates has successfully helped many clients re-file waivers that were prepared by someone else and initially denied. If you have a denied I-601A waiver that you believe was not properly assembled, our office has the knowledge and expertise to assist in putting together a more persuasive and thorough application. Contact us at (713) 664-6200 for a consultation.
On September 22, 2018, DHS released the draft rule regarding the effect of using public benefits for immigrants applying for permanent residency. Any benefits used before the rule goes into effect will not affect the application. The rule will not be final for a few more months. Additionally, the rule makes exceptions for some programs such as emergency Medicaid, disaster assistance such as FEMA, and SNAP benefits used by children. DHS is still considering whether to count CHIP benefits as part of the rule. A key change to the draft rule is that an applicant will not be punished for benefits that their U.S. citizen child receives.
It is important to remember that the rule does not automatically ban the use of public benefits. The ultimate decision will depend on individual factors such as family size, assets, education, age, and income. The rule provides a complicated formula for how much support an immigrant can receive before damaging her chances for a future green card.
This information is intended to update the previous post, “Will receiving public benefits affect my immigration case?”.
The Trump administration plans to publish a rule that effectively penalizes intending immigrants for any public benefits they or their children have received. This applies even if the children are United States citizens who are legally entitled to receive them. There is no new rule in effect now, but the government is considering making changes for the future. Who will be affected by the proposed rule? The proposal applies to most immigrants applying for lawful permanent residence or an immigrant visa. The rule does not apply to lawful permanent residents who are applying for citizenship. The rule does not apply to certain applicants for adjustment of status such as those applying under:
- T visa or U visa;
- Special Immigrant Juveniles;
- Cuban Adjustment Act;
- Other limited categories.
Nonimmigrants applying for a change of status or an extension of stay will also be subject to the new standard. As part of the application, they will need to prove that they are not receiving nor are likely to receive public benefits. What is the proposed rule? The proposed rule directs USCIS officers to evaluate the intending immigrant’s current financial situation to determine whether they can support themselves or whether they are likely to become a public charge. USCIS’ proposed standard would involve weighing both positive and negative financial considerations. USCIS officers will evaluate the intending immigrants’ estimated income, job history, job skills, health status, age, assets, and any family history of receiving public benefits. An applicant would be inadmissible based on public charge if he or she “is likely at any time to use or receive one or more public benefits.” What public benefits will be considered a negative factor? The following benefit programs received by the applicant or a dependent family member during the last 3 years would be a negative factor:
- Obamacare (Subsidized health insurance under the Affordable Care Act);
- Medicaid (non-emergency services);
- Food stamps, SNAP (Supplemental Nutrition Assistance Program);
- CHIP or SCHIP (State Child Health Insurance Program);
- WIC (Special Supplemental Nutrition Program for Women, Infants, and Children);
- Housing assistance;
- Energy benefits;
- Earned Income Tax Credit (when it exceeds tax liability).
What public benefits do not affect the application?
- Unemployment benefits;
- Worker’s compensation;
- Medicare benefits, unless the premiums are partially or fully paid by a government agency;
- Disability benefits
- In-state college tuition
- Subsidized or unsubsidized government loans that require repayment
What other factors will USCIS consider? The applicant will be evaluated for their (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills. The proposed rule will introduce a new form requiring the applicant’s employment history, education and training, current and prior income, credit scores, bankruptcies, any offers of employment, health conditions that would affect employability, enrollment in unsubsidized health insurance, and assets or resources. For example, an individual who previously requested public benefits may be able to establish that he or she sought the benefits for a short time period while unemployed but that he or she is currently working and has sufficient income and longer requires such public benefits. Negative factors that would affect the applicant: USCIS considers these “heavily weighted negative factor” against the applicant if he or she:
- Is of employable age, authorized to work, but currently unemployed;
- Has no employment history or reasonable prospect of future employment;
- Is currently receiving public benefits;
- Has received public benefits for more than six months during the last 3 years;
- Has a costly medical condition and has no unsubsidized health insurance or other apparent means of paying the costs of treatment, or
- Has a spouse or parent who is the principal beneficiary and who has been found inadmissible based on public charge.
Positive factors that would favor the applicant: USCIS considers these “heavily weighted positive factors” if the applicant:
- Is a healthy person of employable age with financial assets, resources, and support of at least 250% of the Federal Poverty Guidelines, or
- Is authorized to work, is gainfully employed, and has an income of at least 250 %of the federal guidelines
What if my case is denied? Applicants who are initially refused based on public charge or who are determined likely to become a public charge may be offered the opportunity to post a public charge bond of at least $10,000. However, the bond will be considered breached if the immigrant receives any of the cash (SSI, TANF, or state general assistance) or non-cash programs identified above. Is it safe to continue to receive public benefits today? News of the proposed rule has many concerned parents wondering if they should stop seeking benefits for themselves or their U.S. citizen children even though the children qualify. Because of the harsh proposals, many fear that they may not be able to legalize their own immigration status in the future. The proposed rule considers the use of public benefits received on or after the effective date of the final rule. However, those who have received public benefits within 3 years of the application for adjustment will be negatively affected as well. The important thing to remember is that the proposed rule has not been published and is not in effect. When the rule is is released, there will surely be legal challenges against it and it may take months or years to become effective. Those who are legally entitled to benefits should think about and the health and safety of their family as a priority. Remember, the new rule contains many factors besides public benefits. If the rule is finalized, you may be able to overcome the public charge with other positive factors. Because the rule is not final, it is too soon to know the full consequences. We will update this blog as the topic develops. However, if you have a pending adjustment of status or immigrant visa case, and you are receiving public benefits, it is in your best interest to finalize the application before the rule takes effect.
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