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Updates From Our Immigration Attorneys in New Orleans, LA

Analysis of Trump’s Tweet

Last night on the evening of April 20, 2020, President Trump tweeted that he is going to temporarily suspend immigration to the United States. The White House has not provided any details regarding exactly what categories of applicants this announcement impacts, nor do we know whether this will be a legally enforceable action. Thus, although we are concerned and disappointed at this announcement, it is not a cause to panic. Rather, this announcement is most likely political maneuvering. Whether or not there will be additional legally enforceable barriers to U.S. immigration remains to be seen. As of the time of this writing, there has been no change in immigration policy due to the president’s tweet.

Many immigration benefits adjudications that require in-person interviews have already been temporarily suspended due to government agency closures following state and local shutdowns due to concerns about the spread of COVID-19. However, government agencies that adjudicate immigration benefits, such as the Department of Homeland Security’s USCIS, remain open and continue adjudicating applications that do not require in-person interviews. In addition, although Immigration Courts with non-detained dockets have suspended hearings, they continue to accept filings many of which have deadlines that have not been altered. Finally, while consular offices are closed for routine operations out of COVID-19 concerns, the National Visa Center continues to process visa applications. Consular interviews, however, will not resume until the consulates reopen. Note that these were changes in response to the threat of COVID-19 and NOT as a result of the president’s announcement last night.

As soon as we have information about the new policy the president referred to, we will update you on the policy and on how it may affect particular types of cases. At this time, however, we believe it is best to proceed with applications so that they can be submitted to the appropriate government agency before any proposed suspension is put in place.

Our office is open and continues operations during this time of the COVID-19 pandemic. For more information, please contact us by phone or email, or get the latest information by liking us on Facebook or following us on Twitter.

Please know that we strongly disagree with the president’s announcement and we appreciate the many important contributions immigrants make to the United States, especially those working so hard to keep us safe during the pandemic.

Public Charge Information

What is public charge?

“Public charge” is a ground of inadmissibility. Grounds of inadmissibility are reasons that a person could be denied a green card, visa, or admission into the United States. In deciding whether to grant an applicant a green card or a visa, an immigration officer must decide whether that person is likely to become dependent on certain government benefits in the future.

Who is affected?

The new public charge guidelines affect people who are applying for admission to the U.S. or for lawful permanent residence. The guidelines do not apply to humanitarian immigrants such as refugees; asylees; survivors of domestic violence, trafficking, and other serious crimes; special immigrant juveniles; and certain individuals paroled into the U.S. The guidelines also do not apply to individuals applying for naturalization.

What benefits are considered in making a public charge determination?

The government will look at whether the applicant received federally funded Medicaid, Supplemental Nutrition Assistance Program (“SNAP” or food stamps), cash assistance, Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), Section 8 housing assistance and federally subsidized housing.

Can my family members receive public assistance?

Benefits received by an applicant’s family members will not be considered in the public charge determination. Additionally, Medicaid received by applicants while under age 21, while pregnant (and up to 60 days after pregnancy), or during an emergency are not considered.

If I use Medicaid or food stamps, will I definitely be found to be a public charge?

Receipt of benefits is only one factor that the government will look at. The government will also consider the applicant’s age, health, household size, education, employment, credit score, and English proficiency.

Moreover, if an applicant receives benefits during the coronavirus lockdown, the applicant can write a statement to include with their application, explaining the reason for their limited use of public benefits.

Will getting tested for coronavirus affect whether I’m considered a public charge?

No. Any health service that you take advantage of related to the coronavirus will not be considered in deciding whether you are a public charge. Therefore, all immigrants should take advantage of any testing, screening or treatment available to the general public without fear of that affecting their immigration application even if the health service is provided free to the public or paid for by Medicaid.

Immigrants and their families can continue to seek services at community health centers, regardless of their immigration status, and at a reduced cost or free of charge, depending on their income. To find the nearest health center, go to https://findahealthcenter.hrsa.gov/

Am I eligible for unemployment benefits?

Unemployment benefits differ depending on what state you live in. Generally, however, unemployment benefits are available to individuals who have a right to work and who have earned sufficient hours over the past several work quarters. You are eligible for unemployment benefits only if you have a current work permit or have been granted asylum.

Will receiving unemployment affect whether I’m considered a public charge?

No. Unemployment benefits are not considered ‘public benefits.’ Therefore, receipt of unemployment benefits does not affect whether USCIS will consider you a public charge.

Will I receive a check from the federal stimulus plan?

Stimulus checks will only be sent out to individuals who have a Social Security number. If the taxpayer, spouse or child has an ITIN number, they will not be eligible for the stimulus check.

There are many scams on the internet regarding the stimulus payment. Remember, the IRS will not call, text you, email you or contact you on social media asking for personal or bank account information – even related to the economic impact payments.

For more information about public charge, please visit

https://protectingimmigrantfamilies.org/know-your-rights/

Proposed Public Charge Rule Hurts Immigrants and Communities

“A billionaire, an immigrant, and a worker are sitting at a table with 1000 cookies. The billionaire takes 999 cookies, and tells the worker, ‘Watch out, the immigrant is going to take your cookie.”

This well-worn meme circulated again coincidentally (or not) right after the Department of Homeland Security published its proposed revisions to the “public charge” regulations on Saturday (September 22). It’s yet another example of the current Administration’s bias against immigrants that has consequences the government itself admits will be harmful. Again and again, it has been demonstrated that immigrants have a net positive effect on their communities, both on a local and national level. Undocumented immigrants pay billions in taxes. Undocumented immigrants keep Social Security viable. Lower crime rates are associated with immigrants than with the native born population.

The data do not back up the premise of this proposal, namely that immigrants are a drain on the country. In fact, there’s scant empirical basis for the anti-immigrant bias of our immigration laws – even as these laws existed prior to the current Administration. This Administration, however, is ratcheting up that bias and the harm it causes. The LA Times’ headline that “Trump’s anti-immigration ‘public charge’ proposal solves a problem that doesn’t exist” is too generous an assessment. The proposal “solves” nothing. It will harm communities and will almost certainly have fatal consequences.

In a nutshell, the proposal would punish immigrants for accessing public benefits that they’re entitled to by making them ineligible for permanent resident status (i.e., a “green card”) – and may even put them at risk of losing that status.

Important initial observations

There are some important items to note before going further:

1) These are a proposed changes to existing regulations. We don’t know what the final version of the regulations will be yet. So there’s time to push back.

2) Since these are proposed regulations, there has been no change in the law at this point.

3) The text of the proposed regulations states that the new penalties for using non-cash public benefits will not apply retroactively to individuals who used the non-cash benefits prior to the effective date of the regulations. AGAIN, FOR THE TIME BEING, NOTHING HAS CHANGED. And we won’t know precisely what the changes will look like once they happen.

For the time being, all individuals who are eligible for public benefits should seek them out in order to give themselves the best shot at moving forward.

What is “public charge”?

The Immigration and Nationality Act (INA) makes “inadmissible” anyone who is deemed likely to be dependent on government benefits to survive (i.e., who is a “public charge”). This “inadmissibility” means that such individuals will not be eligible for lawful permanent resident status, which is ordinarily the last step on the road to citizenship. Certain classes of immigrants who are not subject to the “public charge” inadmissibility ground when applying for permanent resident status. These include asylees, refugees, special immigrant juveniles, and U and T status holders (to name a few).

The public charge ground of inadmissibility is applicable to individuals seeking permanent resident status through family. And that appears to be the point. The current Administration has sought to reduce family migration, and this is a way to do so.

What would this proposed regulation do?

The proposal is large, weighing in at 447 pages. The following are some highlights.

As proposed, this rule would fundamentally alter the adjudication of many immigration applications by dramatically expanding the classes of people who would be considered “public charges”.

Under current policy, an individual is deemed a public charge if that person relies on government “cash assistance” for more than half their income. The programs that can currently result in public charge findings are limited to federal, state, local, or tribal cash assistance for income maintenance; Temporary Assistance for Needy Families (TANF); and Supplemental Security Income (SSI). A sufficient “affidavit of support” will overcome the public charge inadmissibility ground. The affidavit of support is a pretty routine part of the immigration process, and thus far it has not been an insurmountable barrier for any of the cases our attorneys have handled.

The newly proposed regulation would expand applicability of the public charge basis of inadmissibility to those who have received Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing.

Also, a sufficient affidavit of support would no longer be adequate to overcome a “public charge” finding. Rather, individuals applying for permanent residency would be subject to a “totality of the circumstances” test which would make use of a single government benefit a “significant negative factor”.

Officials would also have to consider certain medical conditions such as mental illness, cancer and heart disease as deciding factors because, according to the new rule, “an alien is at high risk of becoming a public charge if he or she has a medical condition and is unable to show evidence of unsubsidized health insurance.”

Under the proposed rule, applicants who don’t qualify for green cards on account of a public charge finding could be asked to pay cash bonds of at least $10,000 to avoid being rejected.

It’s clearly a system that is biased in favor of wealthy immigrants and hurts the working class, who play such an important role in the US economy as a whole – and without whom the Gulf Coast would not have been built.

Why this matters

Nearly 20 million children in immigrant families could be affected by the new rule, most of them U.S. citizens, according to a report by the Kaiser Family Foundation on an earlier draft of the rule. These changes would likely lead to decreased participation in Medicaid, CHIP, Marketplace coverage, and other programs among legal immigrants and their citizen children, even though they would remain eligible. The consequences will in many instances be fatal.

In 2016, there were 10.4 million citizen children with at least one noncitizen parent. Nearly nine in ten of these children live in a family with a full-time worker, but these workers often are in low-wage jobs, leading to lower family incomes and more limited access to health coverage. As such, over half (56%), or 5.8 million, citizen children with a noncitizen parent had Medicaid or CHIP coverage in 2016. Even today, immigrants express concern about whether their use of food stamps or CHIP will affect their eligibility for status, and we have seen immigrants refuse to apply for benefits they are entitled to, that will not hurt their immigration status, but that will help their families, because they already fear the public charge finding. There are already reports that immigrants are withdrawing applications for life-saving programs in response to the proposed rule.

If this proposal moves forward, families will be further deterred from receiving vital medical assistance. There will be worse health for pregnant women, more child malnutrition, heightened poverty, housing instability, and declines productivity. These will all, paradoxically, actually result in increased costs to communities by creating crises that could have been averted had these life-saving benefits not been targeted.

What you can do

We cannot over-emphasize that this is currently a proposal. Even as written, the punishments would not apply to benefits collected prior to the implementation of the rule.

So:

1) First, if you’re an immigrant eligible for government benefits, you should collect them now, while monitoring the situation for changes. As currently proposed, you would not be penalized for your current use of public benefits. These are important benefits that can make you and your family healthier, stronger, and more secure. You will have time to act before the rule goes into effect.

2) Remember that immigrants will not be penalized for government benefits used by their U.S. citizen children.

3) If you are an immigrant who is eligible for or receiving government benefits, keep track of developments. If you have the means to a pro bono or low cost public benefits lawyer and immigration lawyer, consult with them and ask them to help you understand developments. If lawyers are out of reach, follow authoritative news outlets, but do so carefully because even they can be imprecise.

4) Fight back! Nationally, experts on immigration, public health, economic equality, and social justice will be lifting up the harmful effects of these policies in the comment period after publication of the proposed rule. If you are impacted, national agencies may be interested in helping you lift up your story. These include the American Immigration Council (AIC), National Immigration Law Center (NILC), Catholic Legal Immigration Network (CLINIC), and the Immigrant Legal Resource Center (ILRC). You can reach out to them by going to their respective websites.

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