Archive for the ‘Legal Topics’ Category

More on Public Charge, Part Two

Tuesday, September 29th, 2020

Prem Kumar of Visa Tutor tells me more about the Public Charge Rule:

Broad application When a US citizen or legal permanent resident sponsors family such as parents, spouse, children, and siblings, all the applicants are subject to public charge criteria. For aging parents, let’s say, it may be difficult to get private health insurance if they’re new to the U.S. The family category makes up the majority of green card applications.

Catch-22 for health insurance The I-944 Form indicates it’s a strong factor to have health insurance or enough assets to pay for “foreseeable medical expenses”. Most foreign applicants, however, don’t have health coverage nor the assets to pay for expenses before they enter the US or begin to work. How can the US government expect them to have health coverage before they become eligible? This confusion is causing many applicants to buy expensive private temporary health coverage (“visitor’s coverage”).

Adjusting status Let’s say you come on a tourist visa, and marry a U.S. national and want to adjust your status to permanent resident. To apply for a visitor visa, you’re not subject to public charge to enter the US. However, if you choose to adjust status, you must apply for a green card under which public charge applies.

More on Public Charge, Part One

Thursday, September 24th, 2020

I have posted about the toughened Public Charge rule of the Trump Administration, which went into effect in February but has been to some degree suspended during the pandemic. I asked Prem Kumar of Visa Tutor to describe how he sees its impact.

Public Charge is an immigration law provision which requires an immigrant or green card applicant to be self-sufficient or have a sponsoring family member or organization. The goal is to only grant a visa or green card to those applicants who are not likely to fall upon government financial assistance in the future.

Public charge laws apply to all immigrant visas, some non-immigrant visas, and nearly half a million green card applicants, with certain exemptions. Historically, it accounts for 25% of visa denials, where officers believe the immigrant does not have adequate sponsorship in the US, or a high “likelihood of becoming a public charge”.

To put the new version of the Rule in context, In just a single year, about 25% of U.S.-born citizens receive a benefit included in the final rule’s public charge definition. Over the 1997-2017 period, some 41% to 48% received one of the benefits included in the Rule’s new public charge definition.

State Department consular officers abroad and USCIS officers ask about:

Income The applicant or sponsor is compared to the Federal Poverty Guidelines. They must be the minimum 125% income level, however, officers are allowed to require up to 250%.

Health insurance  Although it’s not an automatic disqualification not to be covered, the language in the “Final Rule” makes it clear that it is a “heavily weighted negative factor” in the assessment.

History of Means-tested benefits  the U.S. can reject any applicant who has used means-tested benefits such as SNAP, TANF, some Medicaid, or other cash assistance. It even allows officers to determine if the applicant is “more likely than not” to require such benefits.

Disclosure of background information The officer is required to ask for financial status such as loans, unpaid debts, assets, even child support, and so on.

The Love Connection, Part Two

Friday, September 11th, 2020

Roughly 40,000 persons each year are awarded a visa (“K”) to come to the U.S. and marry a U.S. citizen.K visas are only available to partners of US citizens, not permanent residents.

This process best serves international love birds who prefer not to go through the hassle of a marriage overseas. Marriage in different parts of the world can be long, expensive, or burdensome especially when dealing with local authorities. In addition, families of US petitioners find it inconvenient to travel to distant parts of the world to attend weddings.

One such example is in Morocco, where local authorities require numerous paperwork, a residency period for Americans, and often a bribe to “process” the marriage paperwork.

For those in the LGBT community the K visa may be the only way to marry. Outside of western Europe and the Commonwealth countries, same sex marriage is almost everywhere illegal.

What is needed for the overseas party to get a K visa, which gives the person 90 days in the U.S. to marry, after which the now married foreigner has access to permanent residency or citizenship? The foreign partner must produce documentation, get a medical exam, police / background clearance, among much more before attending an in-person visa interview at a U.S. consulate.

What does Citizenship and Immigration Service do to review of the intended marriage is a sham that will be shortly followed by divorce? Following marriage, the couple is given a conditional period of 2 years in which the USCIS evaluates to see if the marriage was bona fide or a sham meant for immigration benefits only.

The timeline from start to finish, including the consular interview, takes an average of 5-10 months.

For a more complete description of the process go here.


The Love Connection, Part One

Tuesday, September 8th, 2020

How do spouses, children and fiances get into the United States? I asked Prem Kumar, who runs Visa Tutor, to describe what happens. Here we talk about the process for spouses and children. In the next installment, we discuss fiances.

Anywhere from 150,000 to 200,000 visas are issued every year to spouses of U.S. citizens and their children. The U.S. sponsor petitions his or her family and provides necessary documentation before the foreign spouse and children attend an interview.

The approval rate for these visas (CR1/IR1 and CR2/IR2) is very high, about 90%. But the entire process can take up to two years to complete.

The person in the United States needs to be either an American citizen or a permanent resident. Proof of marriage is required. Both the U.S. and foreign spouse cannot have a disqualifying criminal record.

Further, there has to be evidence that the spouse and children will not be a financial burden on government assistance – the public charge rule. The most common problem is that petitioners don’t meet minimum income requirements or aren’t able to provide enough assets to qualify.

The foreign spouse and any accompanying children attend an in-person interview. They present documentation to prove eligibility and answer any questions an immigration official may have regarding the relationship. Common questions include: “When did you marry? How? Where? Where does your spouse work?”

For a more complete description, go here.

Marriage based green cards

Wednesday, July 22nd, 2020

Asel Mukambetova of SelfLawyer responds to my request to summarize how marriage-based green cards are handled:

The time between an individual’s submission of an application for a green card and the date of award varies greatly by circumstances. Assume you have married a person without a green card. It will take about 12 to 13 months to obtain a green card for your spouse. After receiving a green card, your spouse will generally not be eligible for citizenship until 3 years have passed (if you are a U.S. citizen).

If you are a U.S. citizen sponsoring your unmarried son or daughter over 21, the waiting time is 58.5 Months to 76 Months. For a son or daughter under the age of 21 (including stepchildren), the waiting time is 12 months to 13 months. (The duration estimates cited above were typical as of month/year.)

The cost of obtaining a green card for a family member includes fees and attorney costs assuming you use an attorney. The minimum cost of government fees to sponsor a relative is $1,400-$1,900 per immigrant. Immigration attorney fees can range from $935 to $4,000 per immigrant.

Why Trump must beat up on sanctuary cities

Monday, February 17th, 2020

He must attack sanctuary cities because the number of deporations is low — below Obama levels. He has been trying to remove more people from the interior of the country and the sanctuary city movement appears to be thwarting that.

ICE removals in the two full years Trump administration (FY2018-2019) have average 262,000, compared with 370,000 in the seven full years of the Obama administration. The number of removals in FY 2019, 267,000, was lower than every but one full year under Obama.

Under Obama, removals became increasingly focused on persons with criminal records, rising from about two-thirds to over 90%, which appears to have continued. ICE boasted that is FY 2019 there was a 110% increase in removal of “family unit members.”

There are about 11 million unauthorized persons in the U.S.

What has changed if anything?  The Migration Policy Institute in early 2018 did a deep study and concluded that there has been a “sea change in interior [ie not border[ enforcement, though the total numbers have not changed.

It said that “sanctuary policies are curbing ICE enforcement. ICE relies heavily on state and local law-enforcement agencies to help identify and arrest noncitizens from removal. During the first 135 days of the Trump administration, according to MIP’s analysis. 69% of ICE arrests nationwide were based on transfers from the criminal justice system, mostly state prisons or local jails. This is a decline from the FY 2008-2011, during the peak of ICE activity, when state and local prisons and jails were the origin for more than 85% of ice arrest. The decline is attributable to reduced cooperation with ICE.”

MIP shows that arrests have declinced in California, where the sanctuary city movement is big, and risen in Texas, where it is non-existent.


Very few asylum applications are accepted

Friday, August 9th, 2019

About 40,000 people applied for asylum on the Mexican border in 2018. About 5,000 were approved.

As of mid July there were about 18,700 asylum seekers on the Mexican side of the border. Only a few dozen cases are heard daily. The Wall Street Journal reports, “Since only about 20% of asylum claims are eventually approved in court, according to government figures, the Trump administration says the clear majority are spurious claims. Nearly half are denied but the rest are either not decided, abandoned or withdrawn.” That 20% figure appears high in light of application resolution figures provided by the Dept of Justice, below. the data are estimates based on tables in the article



Stephen Miller won: the leadership changes in immigration enforcement explained

Thursday, July 18th, 2019

Jason Zengerle recounts and explains the turnover in key enforcement positions in the past few months. The key event was the pushing out of Nielson (Homeland Security) and Vitiello (ICE).

“A defining conflict of the Trump administration….has been the one between the small group of ideologues like Stephen Miller and the much bigger cadres of conventional Republican appointees who have gone to work for Trump.” Miller won. Between April and July, some key positions were filled by Miller allies. Here is a scorecard and Zengerle’s explanation of a key crisis.

Secretary of Homeland Security April — Secretary Kirstjen Nielsen resigns, replaced Kevin McAleenan, then head of U.S. Customs and Border Protection, as acting secretary.

Customs and Border Protection June – Acting Commissioner John Sanders, who took the position from McAleeen in April, is replaced by Mark Morgan, whose transferred from running ICE.

Immigration and Customs Enforcement (ICE): June — Mathew Albense appointed acting director, replacing Mark Morgan. Albence had served as executive associate director for ICE’s Enforcement and Removal Operations arm. Last year he told a congressional hearing that family detention centers are “more like summer camp” than jail. Albence will be the fourth acting director of ICE since President Trump took office. Tom Homan as acting director in early 2017. Then Ronald Vitiello, then-acting deputy commissioner at CBP. The White House pulled Vitiello’s nomination in early April (explanation below). Then Mark Morgan.

Citizenship and Immigration Services: In July, Ken Cuccinelli, a former Virginia attorney general and avowed restrictionist, took over as the acting director of Citizenship and Immigration Services.

The underlying crisis that pushed Nielsen and Vitiello out:

Per Zengerle, in early 2019 Miller began agitating for ICE to expand its deportation efforts, pursuing not just felons for deportation but families as well. His entreaties struck a chord with Matthew Albence, then deputy director of ICE, who had been in charge of ICE’s removal and enforcement operations. “Stephen found an ally in Albence.”

Albence hoped to begin the operation without Nielsen’s knowledge or approval. In March, he took the plan to his boss, Ronald D. Vitiello, the acting director of ICE, and told him that he intended to start the operation in the next 72 hours. Vitiello told Albence that he needed to get Nielsen’s go-ahead. Albence and ICE officials then briefed Nielsen. After several meetings, Nielsen refused to give the operation — which came to be known inside D.H.S. as the “family op” — her O.K. on the grounds that ICE’s plans were still inadequate and that after the family-separation debacle the public backlash would be too intense.

But within weeks, Nielsen had resigned and Trump had withdrawn Vitiello’s nomination to be ICE director.

Background on Miller:

In 2014, as an aide to Sessions — who was an Alabama senator at the time and who holds similar views — Miller worked with media allies at Breitbart and The Daily Caller to gin up conservative outrage that was instrumental in scuttling bipartisan immigration-reform legislation. In 2016, as a staff member on Trump’s presidential campaign, he not only wrote the candidate’s hard-line anti-immigration speeches but also often served as the warm-up act at his rallies.

If electoral districts were based only on citizens or eligible voters

Monday, July 15th, 2019

The Trump administration pushed for the citizenship question in the census to enable legislators to draw electoral districts based on eligible voters. This is allowed by the constitution and some states have shown an interest in it.

The U.S. Supreme Court unanimously stated in its April, 2016 Evenwel v. Abbott ruling that legislative districts may, but do not have to be drawn inclusive of all the people living within them, as has been the standard for at least the past five decades.

Justice Ginsburg wrote in the opinion, “Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.”

But as Justices Samuel Alito and Clarence Thomas pointed out in their own separate written opinions, the Evenwel decision still allows for states to pass voter-only or citizen-only districting designs.

In December, 2015, Harvard political science professor Carl E. Klarner found that “utilizing [voting age population] for districting would result in a 12% reduction in Latino state legislators and a 13% reduction in Latino U.S. Representatives,” and that “Latino voting power in the mass public would decline by 4.6% in the U.S. House, 5.2% in state senates and 6.2% in state houses.”

A July 12, 2019 article in the New Yorker covers the Thomas Hofeller story and the Trump Administration’s effort to put a citizenship question into the census. It quotes Trump saying “ “Some states may want to draw state and local legislative districts, based upon the voter eligible population.”

According to the AP, “The concept [of using only voter-eligible populations] was introduced in legislation over the last few years in Missouri and Nebraska, where the state constitution already calls for excluding “aliens” from its apportionment.

In Texas, Hofeller calculated in his report that about a half-dozen Latino-dominated districts would disappear, including a portion of one in the Dallas area, up to two in Houston’s Harris County and two or three in the border counties of South Texas.”

E Verify: a few facts 2006 -2018

Wednesday, June 19th, 2019

E-Verify is a federally designed and managed system which employers use to check if a job applicant is authorized to work in the U.S. It checks for whether the social security number is valid and does a few other checks (thus it can be fooled by a borrowed SS number).

Starting around 2007, federal contractors and, later, employers in several states were required to use the system. Otherwise, employers such as Trump properties use it voluntarily. The ACLU and other oppose its use. Criticisms are made that it is mis-designed and ineffective. Here I present some basic facts about its use.

The first graph shows, 2006 – 2018, the number of e-Verify checks in each year, the estimated number of unauthorized workers in the country, and the number of times when e-Verify made a final confirmation that the person was not authorized to work – was rejected –and presumably was not hired.

The second graph shows rejections as a percentage of the estimated size of the unauthorized workforce. This percentage is very small – just over 4% in 2018.

Data from here.