Immigration News That You Can Use – Public Charge, Venezuela/Burma Tps, and Interpreters

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As we notice that many readers would like to know about immigration developments in small bites rather than large articles, we will begin to write a series of shorter summaries of what we hope to be useful developments in the field:

1. Public charge – The law has now officially reverted to 1999 and the rules in place until the Trump Administration. The old guidelines as to what were considered means tested public charge benefits only included SSI, Temporary Assistance For Needy Families (TANF), state and local cash assistance programs providing benefits for income maintenance (often called “General Assistance” programs), and programs (including Medicaid) supporting persons institutionalized for long-term care, e.g. nursing homes or mental health institutions. The Trump administration added food stamp program participation (SNAP), Section 8 housing assistance under the housing choice voucher program, Section 8 project-based rental assistance, including moderate rehabilitation, public housing (under the Housing Act of 1937), and federally funded Medicaid (with certain exceptions). All of the Trump add-ons are now out. Readers should also remember that DHS has never considered as public charge benefits the receipt of emergency medical assistance, disaster relief, participation in the national school lunch programs, special supplemental nutrition program for women, infants, and children, the children’s health insurance program, subsidies for foster care and adoption, government-subsidized student and mortgage loans, energy assistance, food pantries and homeless shelters, and Head Start.

2. Public charge – Financial joint sponsors have much less to fear from intrusions or attempts by city, state or federal governments to intimidate them and to claw back monies that the entities have expended on means tested public benefits for persons being sponsored. Before the Trump administration, the issue of claw back had been largely settled on the side of joint sponsors as it was unpopular the few times that it was tried when claw back suits were filed. The Trump administration on the other hand made fierce attacks on family-based financial sponsorship. It first announced in a May 23, 2019 “Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens,” that it would go after sponsors, and if a sponsor did not reimburse an agency upon request, the agency could then seek a court order for reimbursement. It next launched a new Systematic Alien Verification for Entitlements (SAVE) initiative in September 2020 encouraging all agencies administering federal means tested public benefits to use the new SAVE sponsorship initiative functionality to manage and report their sponsorship and agency reimbursement decisions. In the same month, the administration placed even more pressure on joint sponsors in a proposed rule, “Collection and Use of Biometrics by US Citizenship and Immigration Services,” that it could collect the biometrics of any sponsor associated with an immigration benefit or request including US citizens. Finally, it published a notice of proposed rulemaking, “Affidavit of Support on Behalf of Immigrants,” on October 2, 2020, to further intimidate potential joint sponsors by requiring them to submit three years tax returns, banking information, credit scores, credit reports, and information on their receipt of public benefits, and past failure to meet support obligations in other cases. The Biden administration issued Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” on February 2, 2021, revoking the 2019 Trump presidential memorandum, and DHS withdrew the affidavit of support notice of proposed rulemaking on March 19, 2021. In its withdrawal, DHS stated that it was aiming to reduce barriers and alleviate burdens on American families who wished to sponsor individuals immigrating to the US within the legal immigration system.

3. Public charge – Cancellation of the Trump administration’s public charge rules means wholesale changes to the relevant immigration forms, and readers should not be caught short in using the pre-March 10, 2021, forms on or after April 19, 2021. The 3/10/21 edition of the forms must be used on that date barring an extension in the use of the older forms by DHS. Otherwise, usage of old forms brings the penalty of automatic rejection of applications and petitions. Those forms are I-485, I-485 supplements A & J for adjustment of status to permanent residence, I-864, I-864A, I-864W & EZ affidavits of support, I-129 petition for nonimmigrant worker, I-129 CW and CWR relating to the Commonwealth of the Northern Mariana Islands, and both I-539 & I-539A for change/extension of nonimmigrant status.

4. Public charge – Forms I-944 Declaration of Self-Sufficiency for adjustment of status to permanent residence and DS-5540 Public Charge Questionnaire for immigrant visa processing are both canceled. The I-944 was the more important as use of the DS-5540 had been enjoined by the US District Court for the Southern District of New York on July 29, 2020. With their demise goes the need to provide evidence of health insurance or ability to obtain such upon immigrating along with the torturous putting together of asset items with expert appraisals of worth and documents of education including expert evaluations in some cases.

5. Public charge – Gone also are forms I-945 Public Charge Bond and I-356 Request for Cancellation of Public Charge Bond which USCIS could impose in questionable cases to require applicants to post bonds beginning at $8100 adjusted for inflation annually to ensure that they would not become public charges.

6. Public charge – Altogether, good riddance to the above rules, and financial sponsors should no longer be as afraid to guarantee the support of family-based immigrants.

7. Venezuelan/Burma (Myanmar) TPS – Temporary protected status will be given to all eligible nationals of Venezuela and Burma in the country since at least March 9, 2021 and March 11, 2021 respectively because of the present crises in their countries. Applicants for Venezuelan TPS have already begun to apply as the procedure was set out by a Federal Register notice on March 9, 2021, allowing applications to be submitted from that date until September 5, 2021, while the same cannot be said for Burmese as there has not yet been a corresponding FR notice for Burma. The Venezuelan notice defines eligible individuals as nationals of Venezuela or individuals having no nationality who last habitually resided in Venezuela. Both designations of TPS are for 18 months, with the one for Venezuelans through September 9, 2022. The rules for Burmese will likely be the same as those outlined for Venezuelans that applications for TPS and employment authorization can be filed concurrently. (Advance parole can also be requested, but the notice does not say it can be filed concurrently). Fees are variable dependent upon age and benefits sought. For those 14-65 years of age requesting employment authorization, the fee is $545. Most grounds of ineligibility can be waived, but not those relating to convictions for crimes involving moral turpitude, multiple criminal convictions for which the aggregate sentences to confinement were five years or more, convictions for drug offenses except as related to a single offense of simple possession of 30 g or less of marijuana, for those who engaged in genocide, participated in Nazi persecutions, or are national security threats, were convicted of any felony or two or more misdemeanors committed in the United States, or those that the Attorney General determines took part in persecuting others, where there are serious reasons for believing that the person committed a serious nonpolitical crime outside the United States, where the person is believed to be a member or participant in terrorist activity, or where the person was firmly resettled in another country prior to arriving in the United States.

8. Venezuelan/Burma (Myanmar) TPS – The Federal Register notice for Venezuela notes that those who already applied for Deferred Enforced Departure may also apply for TPS if eligible and that “USCIS encourages individuals who believe they are eligible for TPS to file for the benefit during the initial registration period announced in this Notice, even if they are also covered by DED, in case they cannot qualify for TPS late initial filing under 8 CFR 244.2 (f) (2) after DD has expired.”

9. Interpreters at USCIS affirmative asylum interviews – In light of the COVID-19 pandemic and other stated reasons, USCIS on March 22, 2021, extended a temporary final rule that affirmative asylum-seekers having interviews at asylum offices will not be required to bring their own interpreters, and that USCIS will use contract interpreters for the interviews. Previously the practice had been for applicants to bring interpreters and USCIS would have a contract interpreter only monitor the interpretation of questions and answers. Now USCIS will only allow for applicants’ interpreters to be used in situations where the applicant does not speak English or any of the 47 languages for which contract interpreters are available. The 47 languages are: Akan, Albanian, Amharic, Arabic, Armenian, Azerbaijani, Bengali, Burmese, Cantonese, Creole/Haitian Creole, Farsi Afghani/Dari, Farsi-Iranian, Foo Chow/Fuzhou, French, Georgian, Gujarati, Hindi, Hmong, Hungarian, Indonesian/Bahasa, Konjobal, Korean, Kurdish, Lingala, Mam, Mandarin, Nepali, Pashto/Pushtu, Portuguese, Punjabi, Quiche/K’iche, Romanian, Russian, Serbian, Sinhalese, Somali, Spanish, Swahili, Tagalog, Kamil, Tigrinya, Turkish, Twi, Ukrainian, Urdu, Uzbek, and Vietnamese.




About The Author

Alan Lee, Esq is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2020), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.


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