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Our Chicago immigration lawyers have sifted through the DHS’s regulations and answers to the regulatory comments to understand the DHS decision making process when applying the public charge rules.  The Public Charge rule prescribes how DHS and the State Department will determine whether a foreign national who is applying for admission or adjustment of status is inadmissible in the United States because the foreign national is likely at any time to become a public charge.  The rule defines as a public charge a person who receives one or more public benefits for 12 months during a 36-month period.  If the person receives two benefits in one month, this will count as two in the 12 months, and a person who receives two benefits for 6 months within any 36-months-period will be considered a public charge.

The public charge rule does not apply to U.S. citizens, even if the citizens are related to the foreign national that is subject to the public charge inadmissibility ground.  However, if a U.S. citizen sponsor receives public benefits, the DHS will consider this receipt a negative factor for the alien.  The public charge inadmissibility does not apply to aliens whom Congress has exempted.  In addition, DHS has statutory discretion to waive the grounds of inadmissibility for public charge.

DHS does not have a crystal ball to determine whether an alien is likely to become a public charge.  Instead, the agency adopted a totality of the circumstances framework. Under this framework, the DHS adjudicators will review several factors and make a decision based on all of the evidence that supports each factor, and all of the evidence that supports all factors.  Because each factor can be positive or negative, and some factors are heavily positive or heavily negative, it is essential to recognize which factors can tip the scale in either direction and to offset the negative factors with positive evidence.  If overcoming a negative factor is not possible, for example,  age,  concentrate on increasing the weight on other factors to tip the scale in your favor.  Remember that the burden is the preponderance of the evidence, which means more likely than not.

Age

As already mentioned, some factors are immutable.  You cannot change your age at the time of the application, and the age will be either a negative or a positive.  However, other factors provide more flexibility, and with good lawyering, one can make a convincing argument in one’s favor.  For example, a person may be elderly. Still, if the person has an education, good health, work experience, or is a caretaker of someone else,  these positive factors will offset the negative factor of age.   To show age, you can submit your passport or your birth certificate.  If your age is between 18 and 61, this is a positive factor.

Applicant’s Health

Good health is a positive factor.  Poor health is not necessarily a negative factor.  A negative factor will be a medical condition documented by the civil surgeon as likely to require extensive medical treatment or institutionalization or that will interfere with the applicant’s ability to provide and care for himself or herself, to attend school, or to work upon admission or adjustment of status.

If you have a medical condition, don’t despair as the agency is willing to review expert reports that can mitigate the negativity of this factor.  Your treater can provide a description, explaining that your condition is Continue reading →

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IMG_2890-225x300Our Chicago immigration attorneys at Zneimer & Zneimer PC assist people who need immigration help.  With the Coronavirus closing borders and keeping airplanes grounded, many foreign travelers are scared that they may not be able to leave the United States before their periods of admission expire.   The inability to leave the United States, however, does not suspend the application of the U.S. immigration laws.  Stranded passengers should apply for extension of status, if their current status can be extended, or change to a different status if it cannot, so that they do not accrue unlawful presence.  Yet travelers participating in the Visa Waiver Program (VWP), which enables citizens or nationals of participating countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa,1 are ineligible to either change their status or to extend their stay.  The only option for people admitted on ESTA is to make a Satisfactory Departure request that, if granted, provides additional time for them to leave the country without overstaying their authorized stay.  

According to the Code of Federal Regulations, “If an emergency prevents an alien admitted under [the VWP] from departing from the United States within his or her period of authorized stay, the district director having jurisdiction over the place of the alien’s temporary stay may, in his or her discretion, grant a period of satisfactory departure not to exceed 30 days. If departure is accomplished during that period, the alien is to be regarded as having satisfactorily accomplished the visit without overstaying the allotted time.”2 This is called a Satisfactory Departure.  Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer follow closely the legal developments and litigation in the application of the Public Charge Rule.  The Department of Homeland Security’s regulations interpreting the Public Charge Inadmissibility include definitions and explanations about what factors DHS will consider in determining that a person is likely to become a public charge.  The DHS has enumerated the following factors:

  • Applicant’s Age
  • Applicant’s Health
  • Family Status
  • Applicant’s Assets, Resources, and Financial Status
  • Applicant’s Education and Skills
  • Applicant’s Immigration Status and Expected Period of Admission
  • Sponsor’s Ability to Support
  • Previous Public Charge Inadmissibility

The DHS will weigh each factor individually and cumulatively.  The DHS will assess the weighed degree to which each factor is negative or positive.  The factors will be weighed as positive, heavily weighed positive, neither positive or negative, negative, or heavily weighed negative.  The DHS (USCIS) and the DOS (Consulates) will apply the totality of circumstances framework to determine whether an alien is more or less likely to become a public charge in the future. Continue reading →

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The immigration attorneys of Zneimer & Zneimer PC have compiled a comprehensive checklist with resources for gathering the documents required to meet the public charge inadmissibility provision.   People who apply for an immigrant or nonimmigrant visa, unless statutorily exempt from the public charge inadmissiblity must complete form DS-5540.  People who apply for adjustment of status, unless statutorily exempt from the public charge inadmissibility must submit Form I-944.

Where applicable, you must also submit an Affidavit of Support.   You can download and use our checklist to gather your documents.

Checklist – Public Charge (Z&Z)

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A new legal wall for immigrants and nonimmigrants will go up on February 24, 2020.  The Department of Homeland Security will begin implementing the new Public Charge Rule.

The U.S. Citizenship and Immigration Services announced that it will begin implementing the Public Charge Rule on and after February 24, 2020.  The rule will not be applied for applicants with physical address in Illinois as a result of an injunction by the U.S. District Court for the Northern District of Illinois. The DHS has requested a stay of the injunction from the Seventh Circuit in light of the U.S. Supreme Court decision to stay the nationwide injunction.   If the Seventh Circuit lifts the injunction, the USCIS will provide additional guidance.  The USCIS has a special address and webpage for applicants from Illinois who live in Illinois.

According to public announcement, the USCIS will apply the rule to petitions and application postmarked on or after February 24, 2020.  For petitions or applications sent by commercial carrier, the postmark date will be reflected on the courier receipt.  For applications that are postmarked prior to February 24, 2020, the Department of Homeland Security will not consider the alien’s application, certification or approval to receive, or receipt of certain non-cash public benefits before Feb. 24, 2020. Similarly, when determining whether the public benefits condition applies to applications or petitions for extension of stay or change of status, USCIS will only consider public benefits received on or after Feb. 24, 2020.

Continue reading →
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The Chicago immigration lawyers of Zneimer & Zneimer follow all immigration cases at the United States Supreme Courts to keep our clients and the public informed.  The U.S. Supreme Court recently heard arguments in a case which will have far-reaching implications for undocumented workers.  Whether a state can prosecute identity theft if a person gives false documents to gain employment, is one of the questions before the United States Supreme Court in the case of Kansas v. Garcia, Court 17-834.  The decision below is State v. Garcia, 401 P.3d 588 (Kan. 2017).

Kansas makes identity theft a crime.  Defendants are foreign nationals who had been convicted of identity theft for using stolen identity to gain employment.  The Defendants’ attorneys maintain that the information on an I-9 form can only be used for employment verification and for no other purpose, including criminal prosecution because federal law limits the use of the information on the I-9 form to federal crimes.  The Defendants’ attorneys state that because the information to gain employment that workers provide on the I-9 form is also on the tax forms that are required at the same time, the State of Kansas cannot prosecute identity theft.  Otherwise, in essence, it would be using the information from the I-9 form to prosecute the crime, and the use of this information from the I-9 form is limited by federal law.  Even if Kansas bases the prosecution on information provided in the tax forms, as long as the tax form are provided at the same time with the I-9 form, and the information on the tax form is the same that the worker provided on the I-9 form, any prosecution will implicate information from the I-9 form, which is preempted by federal law.

As the name and the social security number were listed on the I-9 and the tax forms, by prosecuting identity theft in this scenario, Kansas is attempting to enforce federal immigration law, which cannot be done because federal law preempts such enforcement.  Section 1324a(b)(5)  of 8 U.S.C. states that the form “designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter and  [specific federal provisions].” Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer P.C. have been tracking the proposals to amend the public charge regulations, which will make it more difficult for immigrants to receive permanent residence if they or the sponsoring family had received public benefits for a specific period of time prior to the sponsorship.  According to a Politico article, between Oct. 1 and July 29, “the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants were so poor or infirm that they risked becoming a “public charge,” according to the statistics.”  In comparison, in the 2016 fiscal year, only seven people received denial based on “public charge”.

Today, the Department of Homeland Security announced that on August 14, 2019, it will publish the final rule, that amends the regulations by “prescribing how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA or the Act), because he or she is likely at any time to become a public charge.”  The DHS final rule defines what is a “public charge” and what will be considered a “public benefit”:

Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer PC urge employers to seek sound legal advice from experienced H-1B attorneys to avoid denials of approvable H-1B petitions.  Many cases involve information technology or business positions in new and emerging occupations grouped under the “all other” categories that fail to meet USCIS’s idea of “Specialty Occupation” requirement due to poor communication of the job duties.   When drafting a petition, it is important  to understand the industry, requirements, and the technical terms in order to explain what tasks the job involves, what knowledge the job requires, and why such knowledge is beyond the ken of a person that does not have an academic degree in a specific specialty.  Failure to understand the job itself results in a poorly drafted H-1B petition even though the petition was approvable.  HR departments that used to prepare their own H-1Bs now turn more and more to experienced attorneys to avoid the avalanche of denials.  Some heavy users of H-1B visas saw denials jump from 4% in 2015 to 40% in FY 2019  for H-1Bs for initial employment.
According to USCIS’s the top ten reasons for Requests for Evidence and subsequent denials are:

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Applicants for citizenship must meet requirements required by law to qualify for citizenship, including periods of residence and continuous presence, as well as good moral character during such periods. Recently USCIS issued an updated guidance regarding the requirement for good moral character, and specifically discussed the effect on immigrants that engage in conduct related to marijuana.

While states like Colorado and Illinois have decriminalized marijuana, it remains a controlled substance under federal law, and any involvement with marijuana, including ownership and work in the marijuana industry, may affect a non-citizens’ ability to establish a good moral character, a prerequisite for citizenship.

An applicant for citizenship cannot demonstrate good moral character if the applicant has violated any controlled substance-related federal or state law or regulation of the United States or any foreign country during the required statutory period.  This legal impediment does not require a criminal conviction.  While it certainly applies to convictions, it also applies to an admission to such an offense, or an admission to committing acts that constitute the essential elements of a violation of any controlled substance law.  In addition, if an applicant benefited financially from a spouse or parent’s trafficking in a controlled substance, such applicant also will be subject to the bar even if the applicant personally did not participate in drug trafficking.

Marijuana remains “Schedule I”  controlled substance under the federal Control Substance Act, 21 U.S.C. §802(16).  Under Schedule I, marijuana does not have accepted medical use.  Therefore, conduct involving marijuana, even legal under state law, may violate the Control Substances Act, and will be a federal criminal offense and a bar to establishing good moral character for the purposes of citizenship. Continue reading →

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The Chicago immigration attorneys of Zneimer & Zneimer learned that starting March 22, 2019, USCIS will only accept revised form I-539 and I-539A.  The new forms will affect all non-immigrant applicants, including derivatives H-1B, L, and E workers.  In addition to requiring use of the updated I-539 form for each applicant, each co-applicant included in the application, must sign a separate form I-539A (parents can sign the separate I-539A form on behalf of children under 14),  and each applicant must must pay a separate service fee of $85 for biometrics, including children (only certain A, G, and NATO applicants are exempted).  After the applicant and co-applicants file the application, each will receive a separate biometric services appointment and must appear to provide biometrics.  This new requirement will apply to children, regardless of age.

If you have prepared the old I-539 form, remember that USCIS must receive the forms by March 21, 2019.

If you have any questions, or need any assistance with your application to extend status, contact the Chicago immigration attorneys of Zneimer & Zneimer PC.

Continue reading →
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