Border and Enforcement News

Posted on: August 21st, 2019
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Siskind Summary – The Public Charge Rule

On August 13, 2019, the Trump Administration released the text of a long-anticipated, controversial rule that will significantly expand the government’s use of a provision of the Immigration and Nationality Act that bars the admission of immigrants who are deemed likely to become a “public charge.” The rule would cover all immigrants and non-immigrants seeking admission to the US, adjustment of status, and extensions and changes of status for non-immigrants and is set to take effect 60 days after it is published (likely a date in mid-October). The rule follows the release of a proposed rule in October 2018 and has been expected for the last few months.

As soon as the rule was released, the National Immigration Law Center announced it would be challenging the rule and further lawsuits may follow.

The 837-page rule defines “public charge” as used in Section 214(a)(4) of the Immigration and Nationality Act, defines the types of public benefits to be considered in public charge inadmissibility determinations, and the various factors to be considered by the government in making public charge determinations. The rule also sets out the procedure for people to pay “public charge bonds” in adjustment of status cases. Finally, the agency is making revisions to existing USCIS information collections and new information collection instruments to accompany the regulatory changes.

The rule also comes with the withdrawal of a 1999 proposed rule on public charge criteria that never was finalized.

  1. Executive Summary – DHS states that the purpose of the rule is to ensure aliens subject to the public charge inadmissibility ground “are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.”

The rule redefines “public charge” to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that receipt of two benefits in one month counts as two months). “Public benefit” includes cash benefits for income maintenance, SNAP (food stamps), most forms of Medicaid, various Section 8 Housing Assistance programs, and other forms of subsidized housing.

DHS officers will use a “totality of the circumstances” analysis to ultimately decide if someone is inadmissible and the rule goes into considerable detail in providing officers’ guidelines to make that determination.

USCIS will be creating a new Form I-944 Declaration of Self-Sufficiency to be submitted as part of an adjustment of status case.

Finally, DHS will begin accepting public charge bonds.

  1. Major Provisions of the Regulatory Action
  • Amending 8 CFR 103.6, Surety bonds used to address public charge concerns.
  • Amending 8 CFR 103.7 adding fees for a new Form I-945, Public Charge Bond and Form I-356, Request for Cancellation of Public Charge Bond.
  • Adding 8 CFR 212.20 which identifies categories of aliens subject to public charge inadmissibility determinations.
  • Adding 8 CFR 212.21 which includes definitions regarding the public charge requirement.
  • Adding 8 CFR 212.22 which sets out the standard for determining the likelihood of becoming a public charge.
  • Adding 8 CFR 212.23 which sets out an exemption and waiver process.
  • Adding 8 CFR 212.24 which provides a methodology for calculating the annual aggregate amount of the portion attributable to the alien for certain benefits.
  • Amending 8 CFR 213.1 to add public charge bond procedures for adjustment of status applications.
  • Amending 8 CFR 214.1 mandating the denial of requests for admission, extension, and maintenance of status for non-immigrants who have received public benefits described in 8 CFR 212.21(b).
  • Amending 8 CFR 245.4 to require a new Form I-944, Declaration of Self-Sufficiency, for adjustment of status applicants.

View the full Siskind Summary on Greg Siskind’s blog

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ICE Starts Immigration Site Visits For Students On STEM OPT

The Trump administration has empowered Immigration and Customs Enforcement (ICE) officers to exercise their ability to question international students and company managers during new site visits to investigate students on Optional Practical training (OPT) in the fields of science, technology, engineering, and math (STEM). Though this authority has been endowed to officer since May 2016, the agency has abstained from conducting these inspections until recently.

Included in the inspection can be one-on-one interviews with personnel, reviews and discussions of foreign nationals’ training plan and the implementation thereof, and reviews of foreign nationals’ skills and degrees in relation to the STEM degree.

Per the previously mentioned May 2016 STEM OPT regulation, ICE has the authority to review numerous aspects of international students’ work contributions, including assessing documentation to assess whether a STEM OPT student is being properly compensated when compared to compensation of U.S. workers. Additionally, the existence of a legitimate training program is another area that ICE officers can investigate, so it is imperative that employers familiarize themselves with the training plan forms they have for STEM OPT students.

For more information, view the May 2016 STEM OPT regulation and the full article from Forbes.

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U.S. Border Agency to Expand Use of Facial Recognition Technology

United States Customs and Border Protection (CPB) released plans to expound upon its current utilization of facial recognition technology in order to screen individuals entering the country. According to the government-released document, CBP plans to expand its technical systems, replacing the existing “token-based” system which utilizes verification methods such as passwords with a biometric system which utilizes face scans and fingerprints for identification purposes. The plan states that the Global Entry kiosks currently at the border will be replaced with a “facial recognition solution.”

In order to acquire the technology and move key software applications to cloud-computing services, CBP seeks a private vendor, speculating that a potential contract, slated to begin in December of this year and extending as long as May 2025, could be worth a maximum of $960 million.

For more information, view the full article from Bloomberg.

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