Contact Us Today

News & Resources

USCIS Increases Oversight and Enforcement of Affidavit of Support Obligations

Posted September 10, 2020Cheryl Kilborn - Sr. AssociateGreen Card

On September 10, 2020, the United States Citizenship and Immigration Services (USCIS) launched a “sponsor deeming” and “agency reimbursement” initiative that will enable agencies that administer federal means-tested benefits to ensure more effective compliance with laws that apply when a financial sponsor executes an enforceable Affidavit of Support on behalf of a sponsored immigrant. Federal means-tested public benefits include Medicaid, Children’s Health Insurance Program, Temporary Assistance for Needy Families, Supplemental Nutrition Assistance Program, and Supplemental Security Income.

This sponsorship compliance function stems from the May 23, 2019, Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens, which directed increased oversight and data collection when determining eligibility for federal means-tested benefits and reimbursement requirements as it pertains to sponsored immigrants.

Financial Sponsors

Most family-based and some employment-based applicants for lawful permanent resident (LPR) status must submit Form I-864/Form I-864EZ, Affidavit of Support, through which a sponsor agrees to make his or her income and assets available to support a sponsored immigrant. This support obligation continues until:

  • The sponsored immigrant becomes a U.S. citizen;
  • The sponsored immigrant has worked or can receive credit for 40 quarters of coverage under the Social Security Act;
  • The sponsored immigrant is no longer a lawful permanent resident and has departed the United States;
  • The sponsored immigrant is subject to removal, but applies for and obtains, while in removal proceedings, a new grant of adjustment of status based on a new affidavit of support, if one is required;
  • The sponsored immigrant dies; or
  • The sponsor dies. The sponsor’s estate, however, may still be responsible for the cost of benefits accumulated before the sponsor’s death.

Notably, the support obligation is not dischargeable in bankruptcy nor can it be written away in a prenuptial agreement. Sponsored immigrants have been successful for many years now in suing their financial sponsors for financial support under the Affidavit of Support, despite the fact that it is an enforceable contact between the financial sponsor and the government. Prior to the current administration, agencies that administer federal means-tested benefits have never actually tried to enforce or collect reimbursement for the cost of any means-tested public benefits that have been provided to sponsored immigrants.

Sponsor Deeming

Sponsored immigrants may be ineligible for certain federal or state means-tested public benefits because an agency will consider the income and assets of the sponsor (and the sponsor’s household members, if applicable) when determining the immigrant’s eligibility for these benefits. This process is called “deeming.”

As part of the “sponsor deeming” initiative USCIS has launched a new Systematic Alien Verification for Entitlements (SAVE) platform that will make it easier for agencies that administer means federal means-tested  benefits to determine whether the requestor is a sponsored immigrant and thus deemed ineligible to receive the benefit requested.

Agency Reimbursement

If an agency inadvertently provides a means-tested public benefit to a sponsored immigrant during the period the support obligation is in effect, then the agency or its lawful designee, if any (for example, a collection agency), may ask the sponsor to reimburse the agency for the cost of those means-tested public benefits.  If a sponsor does not comply with the terms of the reimbursement request, then the agency can sue the sponsor and obtain a court order for reimbursement.

As part of the “agency reimbursement” initiative, USCIS is encouraging all agencies that administer federal means-tested benefits, to use the new SAVE platform to identify and pursue reimbursement where applicable.

If you are a financial sponsor, are thinking about sponsoring an individual, or are a sponsored immigrant and have questions about how enforcement may affect you, please reach out to your designated Meltzer Hellrung attorney or contact us at consultation@meltzerhellrung.com

Read More

DHS Proposes Significant Changes Concerning the Use and Collection of Biometrics

Posted September 9, 2020Cheryl Kilborn - Sr. AssociateArticles

The Department of Homeland Security (DHS) has released a notice of proposed rulemaking that would significantly change current biometrics regulations. The proposed rule, according to DHS, is meant to provide the agency with enhanced flexibility in the collection and management of biometrics information throughout the “immigration lifecycle.” If enacted, the proposed rule would expand the type of information that can be collected, who it can be collected from, and for what purposes it can be used.

Current regulations:

  • The current DHS biometric collection process for benefits adjudication for an applicant/beneficiary begins with the collection of an individual’s photograph, fingerprints, and signature at an authorized biometric collection site
  • Current regulations generally require documentary evidence such as marriage and birth certificates, and secondary evidence such as medical records, school records, religious documents, and affidavits to support claims based on familial relationships. In some situations, individuals are allowed to voluntarily submit DNA test results
  • For all other benefit requests and enforcement actions, DHS must decide, in accordance with its statutory and regulatory authorities, if the request or enforcement action justifies collection of biometrics and notify the individual where they will be collected when a collection is warranted and for what purposes they will be used

DHS proposes to change the regulations in a number of ways including:

  • DHS proposes that any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with a certain benefit or request, including U.S. citizens and without regard to age, must appear for biometrics collection unless DHS waives or exempts the requirement
  • DHS proposes to increase the biometric modalities that DHS collects, to include iris image, palm print, and voice print
  • DHS proposes that any individual alien who is present in the United States following an approved immigration benefit may be required to submit biometrics unless and until they are granted U.S. citizenship
  • Under the proposed rule, DHS may expressly require, request, or accept DNA evidence to demonstrate the existence of the claimed genetic relationship. Further, DHS proposes to require biometrics from U.S. citizens or lawful permanent residents when they submit a family-based visa petition
  • DHS proposes to collect biometrics and perform background checks on U.S. citizen and lawful permanent resident principals of a regional center (EB-5)

Firm Insight:

If enacted, the proposed rule would expand the type of information that can be collected, who it can be collected from, and for what purposes it can be used including:

  • Most significantly, petitioners or sponsors, whether family-based or employment, could be required to provide biometrics as opposed to just the applicant/beneficiary
  • Collection of biometrics, including DNA could be required, regardless of a minor’s age
  • Foreign nationals and legal permanent residents could be required to continue to provide biometrics up until the point of becoming a U.S. citizen
  • Harsher scrutiny of EB-5 regional centers by performing background checks on U.S. citizens and lawful permanent residents to determine whether the regional center itself is bona fide and capable of promoting economic growth

The proposed rule will be published in the Federal Register on September 11, 2020 and will be available for public comment. It generally takes no less than 120 days for a new rule to go into effect.

Meltzer Hellrung will continue to monitor the proposal and provide updates as they become available.

Please reach out to your designated Meltzer Hellrung attorney or email us at consultation@meltzerhellrung.com, with questions.

Read More

New Regulation to Toughen H-1B Requirements Under Review

Posted September 8, 2020Stephanie Wedel - Sr. AssociateH-1B

 

The Department of Homeland Security (DHS) has submitted a regulation to the Office of Management and Budget (OMB) that will toughen the H-1B eligibility criteria and impose new requirements on H-1B employers.  This review is the next step toward having the regulation take effect, which the Trump administration has made a priority since the proclamation suspending entry of certain H-1B, L-1, and J-1 non-immigrants.  

DHS is intending to issue the regulation as an interim final rule so it can be implemented immediately. This fast-track plan prevents the public from providing feedback before the rule takes effect.

The details of the regulation will remain confidential until the rule is released for publication.  The rule is expected to revise the definition of specialty occupation, H-1B employment, and employer-employee relationship.  It is anticipated there will be a restriction on offsite placement for H-1B workers, including a joint labor condition application (LCA) requirement.

Expectations

OMB has up to 90 days to review the regulation, but this review can be completed sooner. Once review is completed, the regulation will be published to the Federal Register and is expected to take effect immediately after publication.

We expect this change in regulations to be enjoined in a lawsuit as the immediate implementation without public comment will likely be found unreasonable by a court.

We are closely monitoring the matter and will provide updates as they are made available.

Please contact your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com with any questions.

Read More

USCIS to Change Premium Processing from 15 Calendar Days to 15 Business Days

Posted September 3, 2020Amelia Moore - ParalegalArticles

The U.S. Citizenship and Immigration Services (USCIS) has announced that their standard for calculating the 15- day premium processing window will change. USCIS previously required that an adjudicative action be taken within 15 calendar days if premium processing was requested for an additional fee.

However, starting October 2nd, this policy will be updated to require action within 15 business days. This includes only days in which the Federal Government is open for business, therefore excluding:

  • Weekends
  • Federally observed holidays
  • Other days in which the Federal Government is closed (inclement weather, national emergencies, etc.)

Recommendations:

We recommend allotting for additional time for premium processing petitions to account for change. The premium processing service will essentially have 3 weeks now to adjudicate petitions instead of the previous 2 weeks.

If you have any questions regarding this change or its effect on your case, please contact your designated Meltzer Hellrung attorney.

Read More

DOS Expands In-person Interview Waivers for Non-immigrant Visas

Posted September 2, 2020Articles

The U.S. Department of State announced that it is temporarily expanding the ability of consular officers to waive in-person interview requirements. Consular officers now have the discretion to waive in-person interview for individuals applying for the same non-immigrant visa classification so long as their last visa expired within the last 24 months. This expansion is in effect until December 31, 2020 and is intended to limit the number of people in a consulate and reduce the risk of COVID-19 transmission.

General requirements for waiving a non-immigrant in-person interview include:

  • The applicant must be applying for the same type of non-immigrant visa as was previously issued.
  • The prior visa must be still valid or have expired within the last 24 months. Typically, the visa must be valid or have expired within the last 12 months.
  • The applicant must apply at the consulate located in their country of residence.
  • The applicant must not have been refused a visa since the issuance of their most recent visa.

The requirements can vary from one consular post to the next, meaning that additional requirements may be imposed. It is also important to note that meeting all requirements does not guarantee that an in-person interview will be waived. Applicants should plan on attending an in-person interview if the waiver is not granted.

If you or your employee has a question about in-person interview waivers or qualifying for a waiver, please reach out to your designated Meltzer Hellrung attorney or consultation@meltzerhellrung.com.

Read More