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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.

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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”:

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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.

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            International physicians who are in J-1 status in the United States become subject to 2 years home residency requirement. Physicians wishing to remain in the United States may be eligible to apply for a J-1 Visa Waiver if an Interested Government Agency agrees to recommend them for the waiver. Through this waiver, a physician may remain in the U.S. under a commitment to work for at least 3 years in a medically underserved area or the Veterans Administration.  J-1 Waiver is a prerequisite for foreign physicians to begin their path to permanent residency as without the waiver they would be inadmissible.

Physicians will work with the U.S. Department of State, USCIS, and their local health agency in order to request the J-1 Waiver. The U.S. State Department permits any US government agency to request a waiver. Some agencies have special programs to sponsor doctors. In many cases, this agency will be a state health department. Agencies sponsoring applicants for J-1 Waivers are known as Interested Government Agencies (IGA).

Of the major governmental agencies that sponsor J-1 Waivers, the Delta Regional Authority (DRA) is recognized as independent, and is unlimited in number of physicians they can recommend to receive waivers.  By contrast, the Conrad State 30 Waiver Program (administered in Illinois by the Center for Rural Health – Illinois Department of Public Health) recommends only 30 physicians per year to receive waivers.

The Delta Regional Authority sponsors both primary care physicians (including “general or family practice, general internal medicine, pediatrics, obstetrics/gynecology, and psychiatry) and specialty medicine physicians. (For specialty medicine physicians, DRA requires additional documentation.)  It serves communities in the Delta Region of the U.S., spanning Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee. In Illinois, the DRA serves 16 counties in the state’s southern region.

Through the Delta Doctors Program, the DRA places physicians in Health Professional Shortage Areas, Medically Underserved Populations/Medically Underserved Areas, and Mental Health Professional Shortage Areas which are located within its service counties. However, the DRA will consider applications for J-1 waiver placements if the employer can prove that the communities of a location outside of the established service areas will be better served.

Full-time, primary care physicians in rural clinics in this region are eligible for J-1 Waiver requests by the Delta Doctors Program. The DRA provides comprehensive information of the process on their website .  It is advisable to read the J-1 Visa Waiver Program Guidelines, found above, in its entirety. Applicants must follow all specified guidelines and submit the packet, in duplicate, to the DRA. The non-refundable filing fee for the J-1 Waiver application is $3,000.00. If an application is withdrawn within 20 days after it is received by the DRA, the applicant will be issued a 50% refund. Continue reading →

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USCIS announced that in January the agency will accept employment-based adjustment of status applications based on the filing cut-off date instead of the final action cut-off date.  This will allow foreign workers to file for adjustment of status if their priority date predates the filing cut-off date.  USCIS has a grim view of February, however, and on its website notes that as soon as February 2019, it anticipates to revert back to final action cut-off date.   Although USCIS will accept the filing for adjustment of status based on the filing cut-off date, it cannot approve the adjustment of status until the final action cut-off date becomes current.

The backlogged employment-based categories moved by a few days to a few months, but the unconscionable wait for people born in China, Philippines, and especially India, continues.  The EB-1 category of priority workers that groups aliens of extraordinary abilities, outstanding professors and researchers, and multinational executives and managers, is backlogged for all immigrants.  It did inch forward a few days to a few weeks depending on the country of birth.  For example, the priority date for India-born priority workers moved from January 1, 2010, to April 1, 2010, which hardly leaves hope that India-born workers will get their green card before retirement age.  Our immigration system makes it easier and much faster for unskilled workers born elsewhere to receive a green than India-or-China-born professionals, including doctors, engineers, and even people with extraordinary abilities like Nobel Prize winners.

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The Chicago immigration attorneys Zneimer & Zneimer PC remind non-citizens that marijuana remains illegal under federal law.  Many states have decriminalized the use of marijuana.  Because under some states’ laws use or possession of marijuana is no longer a crime, many immigrants are under the very wrong impression that they can possess and use marijuana without consequences for their immigration status.  This is wrong because possession of marijuana continues to be a federal offense and immigration is in the province of federal law.

Immigration officials often question aliens about marijuana use or possession, especially in states that have legalized its use.  If an alien admits to an immigration official that he or she has ever used marijuana, the alien can face very serious immigration consequences.  The problems may occur even if the alien has never been convicted of a marijuana-related crime, and only admits that he or she used marijuana at home in a state where marijuana was legal.  Such admission will cause a number of serious problems.  Marijuana use will create immigration issues if the alien applies for permanent residence, citizenship, encounters ICE officials, travels internationally.

The best thing for any non-citizen is to avoid marijuana, including avoid investments in marijuana businesses, work in marijuana dispensaries or shops, or using marijuana.  A non-citizen should never carry any marijuana or paraphernalia, any frequent-buyer marijuana card, medical marijuana card, any phone with marijuana-related photos or messages, wear any marijuana-themed clothes, have a car with marijuana-themed bumper-sticker, and never, ever, post any self-incriminating statements about use of marijuana on social media.

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“Vague laws invite arbitrary power.” states Justice Gorsuch in his concurring opinion in Sessions v. Dimaya, finding the residual aggravated felony definition of “crime of violence” in the Immigration and Nationality Act, 101(a)(43)(F), referencing 18 U.S.C. §16,  is void for vagueness.  The decision only addresses 18 U.S.C. 16(b) portion of the definition, and holds that it is void for vagueness.

The aggravated felony definition includes a list of enumerated crimes, and includes “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment is at least 1 year.” INA Sec. 101(a)(43)(F).  Mr. Dimaya, a legal permanent resident,  had two  prior  convictions  for  first-degree  residential  burglary under California law, subjecting him to removal.  The government claimed that in committing the residential burglary offenses, he had committed an aggravated felony crime of violence.

Justice Gorsuch began with a foundational question based on Johnson v. United States, 576 U.S.__ (2015), which held that the residual clause of the Armed Career Criminal Act void for vagueness.  Citing to the late Justice Scalia’s opinion in Johnson, that the residual was  for vagueness because it “invited more unpredictability and arbitrariness” than the Constitution allows. Id., at –––– (slip op., at 6), Justice Gorsuch stated that he was “persuaded” that the “void for vagueness doctrine” serves as a “faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Sessions v. Dimaya, No. 15-1498, 2018 WL 1800371 (U.S. Apr. 17, 2018).

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