New Rule on Public Inadmissibility Charge Released by The U.S. Department of Homeland Security

On 12 August 2019, U.S. Department of Homeland Security (DHS) announced the publication of its new rule on public charge. In addition to the long standing requirements that intending immigrants must be able to show that they are able to financially support themselves either through a sponsor, their own assets or a combination of both, the new rule penalizes an individual who receives one or more public benefits for more than 12 months in the aggregate within any 36 month period. Public benefits include supplemental food assistance, medicaid, public housing, etc. The new rule extends the term “public charge” to incorporate the types of public benefits an individual receives.

Highlights of the new rule include the following:

1. The rule will not apply to immigrants who have been receiving public benefits prior to the rule’s enactment. It will only apply to immigrant applications 60 days from the date of publication. 
2. The rule closely examines an immigrant’s work history and will consider an immigrant who acts as a “primary caregiver” or stay-at-home parent for a child or person with a disability and which may not result in a penalty. 
3. An immigrant’s credit score will be closely examined. 
4. The ability to speak and understand English will be considered. 
5. The Form I-864 Affidavit of Support will be minimized (applies to incoming immigrants who are being sponsored) and instead, DHS will question “the likelihood that the sponsor will actually provide the required financial support to the incoming immigrants”. Within this determination, DHS will consider the sponsor’s finances, the relationship to the immigrant and whether the sponsor has signed other I-864 Affidavit of Support documents. 

For more information, contact us today to schedule a consultation with experienced U.S. immigration attorneys.

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What is an I-864 Affidavit of Support?

A USCIS Form I-864 Affidavit of Support is required for many immigrant visa categories in order to show that the sponsoring petitioner (“Sponsor”) and/or immigrant has adequate means of financial support.

The I-864 is a contract between the Sponsor and the U.S. Government. By providing financial documentation showing that they have enough income or assets and in order to financially provide for the intending immigrant(s). 

The following immigrants are required to submit a Form I-864 completed by the Sponsor in order to qualify for an immigrant visa at a U.S. Embassy or Consulate abroad:

• All immediate relatives of U.S. citizens (spouses, parents, children under the age of 21);
• All family-based preference immigrants (unmarried sons and daughters of U.S. citizens 21 years and above, spouses and unmarried sons and daughters of lawful permanent residents, married sons and daughters of U.S. citizens, brothers and sisters of U.S. citizens);
• Certain employment-based preference immigrants.

For more information or questions on filing an I-864 Affidavit of Support, contact us today and speak with one of our experienced U.S. immigration attorneys. 

ENTERLINE & PARTNERS CONSULTING
Ad: 3F, IBC building, 1A Cong Truong Me Linh Str, District 1, HCMC.
Tel: 0933 301 488
Email: info@enterlinepartners.com
Facebook: https://www.facebook.com/enterlineandpartnersconsulting/
Website: http://enterlinepartners.com

USCIS Adjudicator’s Discretion Restored in Denying Applications, Petitions and Requests without Issuing RFE’s or NOIDS.

In a new policy memorandum issued by the United States Citizenship and Immigration Services (USCIS) last July 13, 2018, USCIS adjudicators are given discretion to deny applications, petitions, or requests without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if the initial evidence is not submitted or if the evidence in the record does not establish eligibility. The policy is to take effect on September 11, 2018 and applies to all applications, petitions, and requests received after said date.

The new policy memorandum departs from (and rescinds) a policy memorandum from June 3, 2013 which stated that adjudicators should issue an RFE unless there was “no possibility” that the deficiency in the application, petition, or request could be cured by the submission of additional evidence. Under the June 3, 2013 memorandum, denials issued without an RFE or a NOID were only issued for statutory denials such as if the applicant, petitioner or requestor has no legal basis for the benefit that they are applying, petitioning, or requesting for or if the benefit or relief requested is under a program that has been terminated. 

With the rescission of the “no possibility” policy, the memorandum means that, aside from statutory denials, USCIS may also deny applications, petitions and requests without issuing an RFE or a NOID if not all the required evidence is submitted with the benefit request. Said denial will be based on lack of required initial evidence. Examples of cases where there may be a denial without issuing an RFE or a NOID include, but are not limited to:

• Waiver applications submitted with little to no supporting evidence; or

• Cases where the regulations, the statute, or form instructions require the submission of an official document or other form or evidence establishing eligibility at the time of filing and there is no submission. For example, family-based or employment-based categories where an Affidavit of Support (Form I-864), if required, was not submitted with the Application to Register Permanent Residence or Adjust Status (Form I-485).

The policy is intended to discourage frivolous or substantially incomplete filings and to encourage applicants, petitioners, and requestors for U.S. visas for overseas education and green cards to be diligent in collecting and submitting required evidence.

by: Enterline and Partners Consulting