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DHS Announces Trump Era Public Charge Rule Ending

On March 9, 2021, DHS Secretary Mayorkas announced that USCIS will no longer enforce the 2019 public charge rule instituted by the Trump Administration.

The 2019 Rule was widely criticized for putting significant weight on an applicant’s prior use of Medicaid, public housing, and SNAP benefits when determining whether the applicant is likely to become a public charge (require government assistance) in the future. The policy served to give more power to officers to disqualify immigrant applicants, effectively making it more difficult to immigrate to the United States.

The 2019 Rule also increased the time it took USCIS officers to make decisions on applications, adding to the already growing backlog of pending cases.

The 2019 Rule saw many challenges in the federal court system since its implementation, and was up for Supreme Court review when Secretary Mayorkas made the announcement.

The announcement states “[a]s part of its review, DHS has determined that continuing to defend the [2019 Public Charge] rule is neither in the public interest nor an efficient use of limited government resources. Consistent with that decision, the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Rule.”

DHS will revert to the 1999 guidance on public charge, which already serves to test whether an applicant for permanent residence is likely to become a public charge in the future.

The 2019 Rule resulted in a new 18-page form – the I-944 Declaration of Self Sufficiency – that had to be submitted by applicants for permanent residence as part of their application process.

As the 2019 Rule is terminated and the 1999 guidance reinstated, we expect to see changes in usage of the I-944 Form – perhaps the form will be removed as a requirement or amended.

For our current clients with pending I-485 forms that have recently received a Request for Evidence directing the submission of Form I-944, please continue to work with us to prepare these forms until we have confirmation of any changes.

We expect to know more about the I-944 in the coming weeks.

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Judge Blocks USCIS from Raising Application Fees on October 2nd – For Now.

In the last several months, USCIS has threatened furloughs because applications were down. The agency depends on applicants’ filing fees for most of its operating money. At the end of July, USCIS announced fee increases to take place effective October 2nd, 2020, which would address budget shortfalls claimed by the agency.

On Tuesday evening a Federal Judge in California granted an injunction stopping USCIS from applying the new fees on October 2nd. The court’s order applies to all of the fee increases and covers applicants in all states.

Does this mean I have more time to file my application at the current rates?

The short answer is – Yes. Current fees will remain in place… for now. As long as the injunction is in place, the fees stay the same. There is also a hearing on the underlying lawsuit challenging the fee increase in December.

However, government attorneys will be filing appeals to get the injunction lifted. If the injunction is lifted, the new fee schedule may go into effect.

We are still encouraging our clients to complete their applications and file ASAP.

Why was the fee increase blocked?

In short, the Judge found that the heads of USCIS and Department of Homeland Security were unlawfully appointed, and therefore unable to make these rules. Additionally, the process of making the rules did not follow the requirements set out by the Administrative Procedures Act, which includes “disclos[ing] adequate information about the thinking and data on which” they are basing the rules. While the government argued the fee increases were needed to keep the agency afloat, according to the court, much of the USCIS budget was left unexplained.

The Court also focused on some key aspects relating to the new asylum rules. USCIS’s rule would require asylum seekers to pay $50 for their asylum application. This is a major shift that would make the United States one of only a handful of countries charging for asylum. The Judge felt that USCIS failed to sufficiently justify the policy shift, and relied on factors that Congress never intended for them to consider.

When will the fees go up?

USCIS would be able to use the new fees if the injunction is lifted, which may happen by order of another judge. There is no telling if or when that may happen, but we do know there will be a hearing on the case in December. If the government wins at the hearing, the new fees may go up soon after that.

We will continue to monitor the case and provide updates as they may become available.

In the meantime, we encourage applicants to file applications with USCIS as soon as possible.

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Tax Return Requirements

Individual Tax Return Form on table. Tax time concept. Top view Mock up

Who is this information for:

  • Petitioners/Sponsors of foreign nationals, including spouses, parents, children, and siblings
  • Co-Sponsors
  • Joint Sponsors

If we have asked you to obtain and submit tax documents for your immigration case or a case on which you are a co-sponsor or joint sponsor, we ask that you do NOT send us copies of tax returns you have previously filed.

Instead, we strongly urge you to obtain a Tax Return Transcript from the IRS. This document is preferred by USCIS because it condenses the information, and is evidence that the return was actually filed with the IRS.

Obtaining a Tax Return Transcript is easy. It can be done online, or by telephone. Here is how:

IRS.gov

Navigate to https://www.irs.gov/individuals/get-transcript

You can request the correct transcript online by following the link. If you do not have an IRS.gov account, you can register on the page.

If you prefer not to register, you can request the document over the phone by calling 800-908-9946. Expect delivery to take between 5 and 10 business days when ordering over the phone.

Transcript Type:

There are many types of transcripts you may request. Please make sure you you select TAX RETURN TRANSCRIPTS

If, for any reason, you are unable to obtain a Tax Return Transcript from IRS.gov, and instead you intend to submit copies of your tax returns, you must provide returns that are SIGNED.

Copies of unsigned tax returns are not accepted by USCIS, as there is no indication that the return was filed with the IRS.

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Passport Photo Requirements

Many USCIS and visa applications require passport-style photos. To save you time and money, we can prepare and print those photos in our office, and attach them to your application. We just need you to provide us with a digital photo that we can format to meet USCIS requirements.

Here is what you’ll need:

  • Digital Camera with Flash – your smartphone or tablet is sufficient
  • Friend or Tripod – DO NOT TAKE A SELFIE! Find someone to help you or a good place to prop up your phone
  • Plain, white or off-white wall – nothing should appear in the background
  • Good lighting – the lighting should be uniform, no heavy shadows on the face or background

In order for us to be able to correctly format the photo, we require that the photo be taken with extra space around the person in the frame. Please have photo taken with the following guidelines:

  • Make sure there is good lighting
  • The person should be standing straight up
  • The camera should be in-line with the person’s face so the photo is not taken from below or above
  • The face must be clearly visible
    • no hair in the face or other facial coverings
    • clear lens glasses should be free of glare or reflections
    • glasses should not obscure or hide the eyes
    • no hats or head coverings, except those worn for religious purposes (the full face oval must be clearly visible)
  • A neutral expression on the face – no smiling, squinting, etc.
  • The bottom part of the photo should be from the person’s midsection
  • The top part of the photo should be at least 1 foot over the person’s head

Bad Photo

  • Not enough room for us to format and crop correctly
  • Hair covering face
  • Too dark
  • Smiling

Good Photo

  • Face is clearly visible
  • Neutral expression
  • Enough room around the person for us to format and crop correctly

If you follow these guidelines, we will be able to prepare the correct Passport-Style photos for your application.

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Birthright Citizenship – End It? Keep It? Or Try to Fix It?

In 1868, the 14th Amendment to the Constitution was ratified, guaranteeing citizenship to all individuals born in the United States. The Civil War had just ended, and the Amendment was created to give freed slaves citizenship.

Last week President Trump indicated that he will undertake an effort to end “birthright citizenship” by executive order.

Executive orders have been used by President’s throughout history, in some cases, to supplant laws that would otherwise be impossible to change with the makeup of the legislative body at that time.

Think back to President Obama and DACA in 2012. The DREAM Act had suffered many defeats in Congress, and although Democrats had a majority in the Senate, the House was controlled by Republicans. There appeared to be no immediate future for DREAMERs. So President Obama used executive power to create DACA. President Trump recently attempted to terminate it, also through executive order, which is still being litigated.

DACA was a different situation than birthright citizenship, though, because DACA circumvented (lack of) legislation in an area that the Executive has some power over; an executive order on birthright citizenship would circumvent a constitutional amendment, and would almost immediately be stopped by federal courts.

What would it really take to end birthright citizenship?

Article V of the Constitution requires that an amendment be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. It would then be up to the states to approve a new amendment, with three-quarters of the states voting to ratifying it.

President Trump doesn’t have the votes to change the Constitution – and he knows it. Presumably, he also knows that an executive order ending birthright citizenship would not survive.

So is this just another bomb-shell to fuel Americans to turn-out at the polls on November 6th?

Maybe.

Nevertheless, in today’s climate it is a topic that will be hotly debated in America, and even around the world.

The notion that your geographic location at birth dictates your citizenship is an interesting one. Many countries confer birthright citizenship – Canada, Argentina, Brazil, and over 20 others. These countries have historically sought to attract more immigrants, and there were times that the 14th Amendment helped to attract immigrants to the U.S. who wanted a better life for their (future) children.

Attracting immigrants is not in the interest of the present administration, evidenced by the “Buy American, Hire American” platform visible on seemingly all U.S. federal agency websites, including the immigration agency (!?). President Trump is even planning to terminate the Diversity Visa, which allows individuals from certain nations to participate in an annual “lottery” to be selected for a green card. Whether right or wrong, this is the climate in which the ending-birthright-citizenship issue is playing out.

Supporters of ending birthright citizenship take the position that “times have changed” since the 14th Amendment was ratified. There is some truth to that.

Today there exists an industry for “birth tourism” in the United States. Expecting mothers from around the world pay fees to special “hotels” that offer lodging and medical care to give birth on U.S. soil so their children automatically gain U.S. citizenship. This wasn’t part of American life in 1868. Neither was the influx of millions of people entering the U.S. unlawfully to live, work, and have children (who, in some cases, later sponsor their parents for residence).

These, and many others, are the issues facing America today, and this is what the President is attempting to address.

Do the problems of today call for an outright end to birthright citizenship, and repeal of the 14th Amendment?

Maybe that’s too drastic.

The only Amendment to ever have been repealed is 18th Amendment prohibiting production, transportation, and sale of alcohol, which lasted only 13 years from enactment in 1920 to repeal in 1933. All other provisions and amendments have withstood the changing landscape of America over time.

The 14th Amendment is part of the framework of the United States, and can continue to confer citizenship onto future generations even in today’s America… with some legal limitation.

How can we try to fix it?

It is well established that the law may limit constitutional amendments. For example, while while the First Amendment confers the right to freedom of expression, the law prevents speech that incites, and is likely to produce, lawless action, among other exceptions. While the Second Amendment confers the right to bear arms, the law prevents convicted felons from exercising this right. There are many examples of limitations with most of the Bill of Rights.

Limits on rights may be valid if they pass scrutiny.

Laws that limit constitutional rights are often challenged in state and federal courts, and the courts apply one of three levels of scrutiny to decide if such right may be limited – strict scrutiny, intermediate scrutiny, and rational basis review.

A law, for example, limiting birthright citizenship to to individuals whose mother is legally present in the U.S. in a classification other than “tourist,” would be a law applicable to a “suspect classification” of people, as it would be based on national origin, and would therefore be reviewed under strict scrutiny. To pass strict scrutiny, the law must:

  1. Be justified by a compelling governmental interest (necessary or crucial);

  2. Be narrowly tailored to achieve that interest; and

  3. be the least restrictive means for achieving that interest.

Can a case be made that there is a compelling government interest to limit citizenship to those born in the U.S. to legally-present mothers?

This administration would likely argue that it would deter some individuals from entering the U.S. unlawfully, and, when combined with limiting public education to individuals lawfully present, would deter individuals unlawfully present in the U.S. from staying in the country.

Not everyone would agree that a limitation as described would qualify as a compelling government interest, while others from either side of the aisle may see it as a viable way to address one of the issues facing Americans. The question is, what side would the Supreme Court fall on?

It is possible that a such a law could be the first to limit the 14th Amendment’s birthright citizenship clause. With election day just 1 day away, that possibility could change drastically, unless this is an issue on which Americans can find middle ground – a difficult prospect these days.

One thing remains fairly certain – Congress will have to be the one to act for there to be any changes or limitations to a Constitutional Amendment.

David Vyborny, Occam Immigration

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Share your thoughts below on whether birthright citizenship should be kept, ended, or “fixed” by a law, and whether there is a compelling government interest in a limiting law.

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Despite Court’s Ruling, Congress Must Keep Working on DACA Fix

In a surprising decision, a California federal judge has blocked President Trump’s order rescinding DACA. The court found that the rescission was arbitrary, and questioned the contention that DACA was put in place illegally. While the ruling allows previous DACA holders to file for renewals of their work authorization, it does not allow new DACA applications.

The United States is sure to be sent into further debate over this matter. Over Christmas I published an article that had many people from both sides of the debate weighing in.

The question is, will this help? My take is that it may do more harm than good.

In the immediate wake of the ruling, we’re already seeing headlines about how this alleviates the pressure from Congress to act by the March 5th deadline.

That’s not good.

The only way this problem really gets fixed for the “Dreamers” is through the legislature, not the executive.

Since the original Dream Act was proposed in 2001, Congress has not been able to come to an agreement and send a law to the President’s desk. President Obama created a bandaid – DACA – which was only a holdover until Congress could do it’s job. President Trump – who agrees that these “Dreamers” need legal protection – effectively light a fire under Congress to finally create a law by rescinding DACA, and for the first time in 17 years it looked promising that Congress would reach a solution.

Now Congress can relax a bit – for the time being. I expect the California court’s ruling to be appealed, and likely reversed. There is no reason 1 president’s executive action should have priority over another president’s executive action. Obama’s executive action put it in place; Trump’s executive action removed it.

Congress needs to keep working hard on this fix so that the Dreamers and the American people can move on to other issues affecting this country.