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Happy New Year everyone! What a year 2020 was! An understatement to say the least. I’m happy to see it left behind in the rear view mirror. Along with the fourth (and mercifully the last) year of the Trump Administration, we “welcomed” a once-in-a-lifetime pandemic to our shores and all the misery that came as a result of it.
As I reflect back on 2020, there’s no doubt that the human toll, and specifically the death toll, was awful. Most experts say it’s going to get worse before it gets better. That said, I think the toll on our collective mental health has been equally as bad, and some might argue worse.
And as bad as it’s been for you and I, imagine the uncertainty of being an immigrant in America, whether you’re here lawfully or not. Combine that with a pandemic that has thus far taken the lives of almost 350,000 souls in the United States, and infected (as far as we know) more than 20 million, it’s not hard to imagine the stress that immigrants are under during these incredible times.
Trump’s legacy will include many things. It will also be long-lasting. The mark he has left on U.S. immigration policy will be indelible in some cases. Plain and simple, President Trump and his minions like Stephen Miller have been more hostile to U.S. immigration policy and the immigrants that policy is meant to serve than any other administration I can think of, making it unnecessarily more difficult for people to visit friends and families, and to live or work in our communities.
I recently saw an interview that Ken Cuccinelli, Acting Director of U.S. Citizenship and Immigration Services (“USCIS”), gave on FOX News in 2019. I quote: “First of all, I see USCIS as a vetting agency, not a benefits agency,” Cuccinelli said. He went on to say, “[w]e have benefits that we give when people meet legal thresholds but it’s on them to prove they’ve done it and it’s our job to make sure those are going to people who have in fact met those thresholds, and we’re protecting America by screening people trying to come in and stay here a long time.”
I don’t disagree that USCIS must do its job responsibly, and vetting an applicant for an immigration benefit like permission to work or getting Green Card is part of that process. But that’s part of how USCIS effectuates its mission, which is to adjudicate benefits for foreign nationals. Mr. Cuccinelli’s viewpoint is symptomatic of the larger Trump Administration view that immigration is a bad thing for our country.
Over the past four years, we have recommended to our clients, contrary to our practice pre-Trump, that if they are eligible, they should apply for citizenship in the United States. I think it’s a very personal thing for someone to give up citizenship to their original country in order to become one in ours. We’re apparently not the only ones who make this recommendation now. According to the Migration Policy Institute, the number of naturalization applications filed annually has increased in recent years.
Most credit this to the President’s anti-immigration rhetoric during the 2016 election cycle which continued into and throughout his administration. No one was spared. Legal immigrants, undocumented immigrants, asylum seekers, and applicants for citizenship. Also not spared were individuals seeking to extend their temporary status in the United States where that benefit had previously been “vetted” by USCIS. Go figure. These are but a few of dozens and dozens of examples.
Citizens of the United States have so many more protections under our law than someone who is not. Hasn’t that proven to be the case over the past four years (at least within the immigration context)? But still, how did we arrive at this point?
We’re now into a New Year, and in a couple of weeks, we’ll have a new president. Although we may be in the midst of a dark winter as far as COVID-19 is concerned, even with COVID-19 we can now start seeing the hint of a light at the end of the tunnel. President-elect Biden has a lot of work ahead of him, if nothing else, to try to get our immigration system back to where it was before President Trump was sworn in (imperfect as it was even back then). I hope he’s up to the task.
I went to bed around 9:30 p.m. on election night. I just knew that the results would not be final that evening, and watching the news through the night was going to do nothing but stress me out (and it was). I was also having this strange sensation of “deja vous all over again” from election night four years earlier.
When I started writing this article, Vice President Biden had taken a small but meaningful lead in the Commonwealth of Pennsylvania which, if it held, would bring him over the 270 electoral votes that he needed to become President-elect of the United States. The wind was at his back.
The wind kept up and yesterday morning (again, as I write this), the major news organizations called the race, and Joseph R. Biden will become the 46th President of the United States. It’s been a long four years (for me anyway, and for many of the clients we represent).
About a week before the election, NBC News and other news outlets were reporting that the Trump Administration, through its immigration minion-in-chief, Stephen Miller, was setting out an aggressive and hardline immigration agenda for the President’s second term. I couldn’t bear to read it, but of course I had to and did. Mr. Miller’s proposed second term agenda included the following:
(a) the Administration would expand its policies that now require asylum seekers in the United States to first seek protection from other countries, which currently includes Guatemala, El Salvador, and Honduras, to now include the rest of the world.
(b) the Administration would aggressively crack down on sanctuary cities by punishing those cities that prevent law enforcement from turning undocumented immigrants over to Immigration & Customs Enforcement (“ICE”).
(c) the Administration would expand what is commonly known as the “Muslim travel ban” by taking an applicant’s “ideological sympathies or leanings” into account during the visa interview process.
(d) the Administration would seek to “curtail” H-1B nonimmigrant specialty occupation visas, get rid of the current lottery process during the initial allocation process and replace it with a system that prioritize visas for those being offered the highest wages.
Please, enough already. This morning the American Immigration Council reported that there have been over 900 changes to the U.S. immigration system over the past 4 years. 900!!! Imagine trying to keep up on your practice area or trade when there’s that much change on an almost day-to-day basis.
As I’ve noted before, it amazes me that Mr. Miller, himself a descendent of immigrants, advocates for such restrictionist positions. According to published accounts, Mr. Miller’s family arrived through Ellis Island from what is now Belarus. His relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and became very successful. It’s a great American success story.
And yet Mr. Miller became the poster-child for President Trump’s anti-immigrant policy. It just makes no sense (to me anyway). Well, I hope the door doesn’t hit him in the ____ on his way out of the White House. His days are over.
Not to overdramatize this, I do have a short-term concern about what the President will do between now and inauguration day (not on the legal front in terms of contesting the election, but more so on the executive order policy front and what further damage he and Mr. Miller can do to U.S. immigration policy).
Many of the 900 changes that President Trump has implemented over the past four years have been through the stroke of his pen (i.e., executive action, etc.) as opposed to actual legislation (given the fact that the House of Representatives is controlled by the Democrats). Assuming the wind at Vice President Biden’s back continues to blow, I presume (or at least I am hopeful) that it will be easier for him to unwind all of the terrible wrongs that President Trump has performed over the last four years.
Just this morning, the New York Times reported that President-elect Biden, on Day 1, would begin a “yearslong effort to unwind President Trump’s domestic agenda and immediately signal a wholesale shift in the United States’ place in the world.” I am tired of this election season. I am also tired of what I’ve watched and listened to from the White House over the last four years. Our country is deeply divided, and President-elect Biden will now, and for the foreseeable future, have to govern in President Trump’s America. I look forward to Day 1.
In terms of the President’s income taxes, Twitter (and other more mainstream media) has been of course alight with all sorts of buzz as to how much you pay in income taxes relative to the President, how much I pay, and so on. But the one Tweet that did catch my eye, and it quickly became more than one, is how much in income taxes undocumented immigrants pay to the federal government each and every year. According to this Tweet (and it was from someone who I do not follow, but who was re-tweeted by someone I do follow), undocumented immigrants paid $27,000,000,000.00 in taxes in 2017. (I have no idea whether this Tweet is factually accurate.) President Trump, according to the New York Times’ article, paid a mere $750.00 in federal income taxes. So I’ve done some digging.
Let me paint a picture for you. Often I will have a potential client in my office who is looking for a way to lawfully stay in the United States. While assessing his or her circumstances, more often than not they will tell me that they’ve worked in the United States for a number of years (sometimes many many years) and have always paid taxes. They’re also able to document that for me too. They pay taxes for any number of reasons, including just wanting to do the right thing.
Undocumented immigrants pay taxes either using an Individual Taxpayer Identification Number (“ITIN”), which over the years has evolved in terms of who was eligible to obtain one. Some, of course, use other people’s Social Security Numbers. Some use fake Social Security Numbers. The takeaway, however, is that they’re paying taxes into a system that most will not get any benefit from.
Current data is difficult to come by. In a 2014 Internal Revenue Service (“IRS”) Nationwide Tax Forum, the IRS estimated that individuals using ITIN’s paid over $9 billion in withheld payroll taxes annually. According to the IRS, in 2015, 4.4 million people paid $23.6 billion in total taxes using an ITIN. Because undocumented pay into a system that they are not eligible to collect benefits from when they retire, in 2010, $12 billion more was collected from Social Security payroll taxes of undocumented workers than were paid out in benefits.
According to the Institute on Taxation and Economic Policy (“ITEP”), undocumented immigrants paid $11.6 billion in state and local taxes in 2013, which includes $7 billion in sales taxes, $1.1 billion in state income taxes, and $3.6 billion in property taxes.
The clear take away is that undocumented immigrants are paying a substantial amount of incomes taxes (both state and federal), as well as other types of taxes too (e.g., property taxes, sales tax, etc.), including, according to one report, tens of thousands of dollars by prior employees of one or more of Trump’s own companies.
We can debate all day long whether the President’s position that he’s practicing smart tax avoidance, using lawful means to deduct legitimate business expenses, losses, etc., is appropriate. There is, however, something that does not sit well with me (anyway) when undocumented immigrants are paying so much into a system that they will likely never benefit from, and our President is paying in so little.
Let that sink in.
 National Taxpayer Advocate, Annual Report to Congress, Vol. 1, Internal Revenue Service, 2015, 199-200, https://taxpayeradvocate.irs.gov/Media/Default/Documents/2015ARC/ARC15_Volume1.pdf.
 “Effects of Unauthorized Immigration on the Actuarial Status Of the Social Security Trust Funds,” by Stephen Goss, Alice Wade, J. Patrick Skirvin, Michael Morris, K. Mark Bye, and Danielle Huston (Actuarial Note, No. 151, April 2013), Social Security Administration, Office of the Chief Actuary, Baltimore, Maryland.
 “Undocumented Immigrants’ State & Local Tax Contributions”, by Lisa Christensen Gee, Matthew Gardner, and Meg Wiehe, Washington, DC: Institute on Taxation and Economic Policy, February 2016, http://www.itep.org/pdf/immigration2016.pdf, p. 2.
My kids are of the age where I am still watching movies like Minions. Truth be told, I like them. Indeed, on some level, particularly with respect to their soundtracks, I think they’re made with adults in mind. According to Merriam-Webster, the definition of a “minion” is “a servile dependent, follower, or underling,” generally to someone powerful (or someone who perceives him or herself to be powerful). The origin of the word is French.
I’ve used the word “minion” in these articles from time to time, generally with reference to Stephen Miller, the President’s policy advisor who reportedly is the primary architect of the President’s restrictionist immigration policy, including the President’s recent proclamations restricting entry of some foreign nationals to the United States.
On April 22, 2020, the President signed a proclamation temporarily suspending the entry of certain “immigrants” into the United States in light of the COVID-19 pandemic. Exactly two months later, on June 22, 2020, the President signed yet another proclamation continuing his original proclamation and also now suspending the entry of certain “nonimmigrants” into the United States. As I’ve previously noted, the practical effect of these proclamations is not much since most embassies and consulates around the world are working at drastically reduced operations and visa issuance has all been suspended in any event since mid-March. So why did the President put out this second proclamation? As always, politics as usual. Red meat to his base.
It has always amazed me, however, that Mr. Miller, himself a descendent of immigrants, could be advocating for such restrictionist positions. According to published accounts, Mr. Miller’s family arrived through Ellis Island from what is now Belarus. His relatives fled anti-Jewish pogroms and forced childhood conscription in the Czar’s army at the beginning of the 20th century. According to news reports, the first decedent of Mr. Miller arrived in the United States knowing no English and with $8.00 in his pocket. He peddled street corners and worked in sweatshops. And by all news accounts, he worked hard and became very successful. It’s a great American success story.
Is Mr. Miller ashamed of his immigrant past? I am open to any reasonable explanation as to why Mr. Miller advocates for these anti-immigrant positions.
The President’s most recent proclamation essentially blocks access by U.S. companies and others to certain nonimmigrant workers until at least the end of 2020, including H-1B, H-2B, J-1 and L-1 nonimmigrants (and their family members). As reported in one of my local newspapers, the Albany Times Union, the President’s proclamation will negatively impact employers, families, colleges and universities, health care facilities, and seasonal businesses. The President’s proclamation will also delay America’s economic recovery from the COVID-19 pandemic.
The H1-B is a visa that allows a foreign national to work temporarily for a U.S. employer in a specialty occupation position such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. The H-2B is a visa that allows a person to work in the United States for a U.S. employer in a seasonal field outside of agriculture, like a hotel worker in a resort community. The J visa refers to, among several other possibilities, an exchange visitor and under the President’s most recent proclamation is limited to those working in specific capacities, like as a camp counselor, teacher, au pair, or pursuant to the J-1 summer work travel program. Finally, an L visa refers to intracompany transferees who work in positions that require specialized knowledge or who are working in an executive or managerial capacity.
The continued use and availability of these visas to a large cross-section of U.S. businesses and industries is absolutely essential to a successful economic recovery from the COVID-19 pandemic.
The premise behind the President and his minion’s policy is to protect U.S. workers, particularly as we work (no pun intended) our way through the economic consequences of the COVID-19 pandemic. The White House has said that these proclamations will protect or create over half a million jobs. (Although significant, it’s a drop in the bucket when you consider the overall job loss since March 2020.)
But the President and his minion’s basic premise is still fundamentally flawed. And I’ve written about this ad nauseum in this space over the last several years. Bottom line. Immigrants, whether those here temporarily or those who strive to be here permanently, are a positive influence on the U.S. economy. You can find any number of resources that support this premise, but for those who may suspect my views, feel free to check out The George W. Bush Presidential Center’s “Economic Growth Initiative”, which does an excellent job debunking all these ridiculous myths about the negative impact of immigrants on our nation and our economy.
Forget right and left. Let’s move forward, all of us, together.
Whether you’re from a red state or blue state, one thing is undeniably true, all politics aside: over 103,000 human beings have died in the United States since the end of February as a result of the disease caused by the novel coronavirus (or COVID-19). That’s a massive amount of human loss in a very short period of time. I find that very hard to process.
Not that there’s any equivalency, there’s also been a vast amount of change in our personal and professional worlds. On the personal side, many if not most of us are working remotely, if we’re working at all, and our professional lives are now often interwoven with our personal lives as we manage work-life in a family setting. For some of us, that will soon be changing.
I have been fortunate to be able to go to an office every day. There’s no one else here. So while my work life is a bit lonely, I can say for sure that I am able to get work done without four boys running, yelling, complaining, laughing, and sometimes even crying in the background. Those of you who know me personally know that my wife is the mother of the year, every day of the year.
And what of my work? Immigration law is challenging enough in “normal” times, with the law itself, not to mention the myriad of changes that happen often daily. During this COVID-19 pandemic, however, the changes have not only been often, they’ve been dramatic as well.
Although the “real” news has reported the President’s Proclamation restricting immigrant visa issuance, as a practical matter, all visa processing by the Department of State (“DOS”), as well as the adjudication of many immigration benefits here inside the United States by U.S. Citizenship and Immigration Services (“USCIS”), have practically stopped (or at least are now very delayed and backlogged). In addition, entry into the United States along our northern and southern borders, including by asylum seekers coming from the south (despite being told otherwise), has also been restricted. Thousands and thousands of low risk noncitizens are also in immigration detention despite the reported very high risk of COVID-19 transmission in jails, prisons, and federal detention centers that U.S. Immigration and Customs Enforcement (“ICE”) uses to hold noncitizens. Finally, the COVID-19 pandemic has led to the suspension of almost all non-detained immigration court hearings, and has also limited the normal functioning of those other courts that remain open.
Any one of these changes would be dramatic for our clients in ordinary times. But all four of them at once? And during a pandemic when everyone is stressed out from being cooped up indoors for months, perhaps out of work, and perhaps also losing a family member to coronavirus?
Add to all this that President Trump, and his minions like Stephen Miller, have used the COVID-19 pandemic to pursue policy changes, mostly by regulation and proclamation, that his administration has failed to accomplish by legislation or in the courts during his presidency (e.g., eliminating the ability for noncitizens to pursue asylum at our southern border).
While we’re all impacted by COVID-19, I would argue that its impact on noncitizens, and particularly those who hold essential worker jobs, is far worse than the average person. Thus far Congress has at least endeavored to provide benefits or some form of relief to U.S. citizens and noncitizens who are lawfully in the United States. But many immigrant are affected differently (e.g., many immigrants are not eligible to receive direct payments and support, and many others are not able take advantage of the increased availability of health care services), and many noncitizens who are here in the United States, whether lawfully or otherwise, right or wrong, are the very essential workers that you and I rely on every day of our lives (e.g., health care workers, grocery store workers, dairy workers, and the list goes on and on).
These are stressful times. Both foreign and U.S. workers in all of our communities are suffering the impacts of COVID-19, whether economic or otherwise, and if large parts of the population are intentionally being excluded from the federal government’s economic support, this will have a widespread impact on everyone. We all deserve better.
This time that we all find ourselves in is surreal to say the very least. Nothing is as it should be, and we truly have no idea when the old normal will be new again. Yet certain aspects of our lives must continue to move forward, including in my case, the work that needs to be done for my clients. As complex as the world of immigration is, it is made unbelievably more so when COVID-19 (Coronavirus) changes the landscape almost moment to moment.
The Departments of Homeland Security and State have taken some steps towards flattening the curve (e.g., cancelling in-person appointments, cancelling visa interviews, etc.). Far more aggressive action is needed, however, to ensure the safety of all our federal employees, our immigrant clients, and their representatives.
Although the Executive Office of Immigration Review (“EOIR”) has suspended all immigration hearings for non-detained aliens, they inexplicably continue to go on for detained aliens, at great risk to the very same people I’ve noted who need to be protected. The EOIR should close all the immigration courts, yet continue to ensure reasonable and safe (e.g., telephonic or video) access to counsel for detainees. Equally as important, the Department of Homeland Security (“DHS”) needs to ensure and protect immigrants from falling out of status during this awful COVID-19 pandemic.
For example, U.S. Citizenship and Immigration Services (“USCIS”) should extend all filing deadlines, excuse late filings and grant automatic extensions of stays for individuals whose authorized period of stay is set to expire. Likewise, the U.S. Department of Labor (“USDOL”) should relax its rules so individuals who are laid off or furloughed can maintain their lawful status.
I can’t tell you how many calls I’ve received over the last week or two from corporate clients asking questions about what to do about particular employees, some of whom are here, for example, on H-1B nonimmigrant (or other similar) visas and who would or will be adversely impacted if they were laid off or furloughed. Our immigration law, unfortunately and not surprisingly, is not very forgiving in these situations.
For example, employers who hire individuals who work for them on H-1B nonimmigrant visas, know that USDOL’s regulations require that they continue to abide by the labor conditions to which they agreed when they filed the H-1B petition with USCIS. These are the terms set forth in what is called the Labor Condition Application (“LCA”) filed with the H-1B petition. These concern payment of the required wage, full-time vs. part-time employment of the employee, and notice to employees in the area of intended employment.
As we all know, because of the COVID-19 outbreak, many local and state governmental authorities are instituting shelter-in-place, work-from-home, or stay-at-home orders to facilitate social distancing. In addition, the economic fortunes of many companies have fallen dramatically since the COVID-19 outbreak, including many small businesses that have all but shut down. This has prompted many employers to reevaluate their business operations. Consequently many employers are asking what happens to their foreign workers if they furlough, layoff, reduce hours, or they otherwise become unproductive during this crisis.
USDOL regulations require H-1B employers to pay the wage set forth in the LCA. Given that, how are employers able to place an H-1B worker in non-productive status while at the same time maintain compliance with the applicable DOL regulations requiring provision of the required wage irrespective of non-productive work status? The short answer is, they can’t.
“Non-productive status” is defined as any time during the validity of the LCA and H-1B petition where an employee is unable to work. When an employee is in a non-productive status due to a decision of the employer (e.g., due to a lack of work), under the regulations, the employer is still required to pay the required wage.
Likewise, an employer cannot furlough, layoff, bench, or otherwise render an H-1B worker non-productive and, as a result, stop offering the required wage, if the employee is not able to work from home during a COVID-19 pandemic initiated “stay at home” order from federal, state, or municipal government authorities. If an employer did so, it would risk liability such as fines, back wage obligations, and, in serious cases, debarment from the USDOL’s temporary and permanent immigration programs.
As I explained to a client the other day, an employer could seek to convert a full-time H-1B worker to part-time, but this would require not only the filing of a new LCA to reflect this change, but also the employer would then be required to file an amended H-1B petition with USCIS (expending additional fees along the way). Although the H-1B worker would be permitted to commence part-time employment upon USCIS’s receipt of the amended H-1B petition, before this happens the employer would need to make the decision to undergo this effort, which is no inexpensive effort in normal time, let alone these times.
USCIS should suspend (or even waive) the requirement that employers must file an amended or new H-1B petition when a new LCA is required due to a change in an H-1B worker’s employment as a result of the COVID-19 outbreak. Not only is there legal authority for USCIS to do this, it’s also clearly the right thing to do. These are unprecedented times. Our government needs to show some leadership (and heart) so as not to make a terrible situation worse on all employers affected by COVID-19 and their foreign-born employees.
Tags: Coronavirus, COVID-19, Immigration.
Last night I received an email from Microsoft’s Office365 Message Center providing me with preparedness information for COVID-19 (Coronavirus) and guidance regarding best practices for Microsoft Teams. Well, I don’t use Microsoft Teams (and candidly I don’t even know what it is let alone know what it does), but I did take that admonition as an opportunity to think about the Coronavirus and the immigration consequences of it.
According to the Center for Disease Control, COVID-19 is a “respiratory disease caused by a novel (new) coronavirus that was first detected in China and which has now been detected [as of this writing] in 70 locations internationally, including in the United States.” On January 30, 2020, the World Health Organization declared the outbreak a “public health emergency of international concern (PHEIC)”. One day later, Health and Human Services Secretary Alex M. Azar II declared a public health emergency (PHE) for the United States.
When President Trump came into office, one of the first things his administration did, which of course was alarming at the time (and still is) was create the Travel Ban. The Travel Ban is now in its third iteration (if you’re counting). Most recently, however, the White House announced two (2) presidential proclamations, each addressing the entry to the United States of certain immigrants and nonimmigrants who pose a risk of transmitting Coronavirus.
On January 31, 2020, the President issued Proclamation 9984, which suspends and limits entry into the United States, as immigrants or nonimmigrants, of all individuals who were physically present within the People’s Republic of China, not including Hong Kong and Macau, during the 14-day period preceding their entry or attempted entry. On March 4, 2020, the President issued a second proclamation (Proclamation 9992) that, with few exceptions, suspends and limits entry into the United States, as immigrants or nonimmigrants, persons who were physically present in the Islamic Republic of Iran during the 14-day period preceding their entry or attempted entry. My sense is there will be more.
The scope of both proclamations are actually broader than their titles would suggest. For example, under the President’s January 31, 2020 proclamation, U.S. citizens who traveled from the Hubei province in China within 14 days of arriving to the United States will also be subject to up to 14 days of mandatory quarantine. In addition, U.S. citizens returning to the United States who had visited other parts of China, outside of Hong Kong, Macau, and the Hubei province, will be subject to monitoring at certain ports of entry, and potentially self-quarantined at home.
Importantly, from an immigration perspective, the President’s first proclamation also states that it does not affect an individual’s eligibility to apply for political asylum, or other relief, including withholding of removal, or protection under the United National Convention Against Torture (CAT). The proclamation also does not apply to U.S. citizens or lawful permanent residents (i.e., Green Card holders).
Earlier this week, there was an article in the Albany Times Union indicating concern by the Lake George, New York hospitality sector that hotels, restaurants and other businesses were not going to be able to fill a thousand or more necessary jobs that are typically filled by foreign students who participate in the J-1 Exchange Visitor Summer Work Travel Program. Related to this, the Department of State’s Office of Academic Exchanges (which is the office that administers the J-1 Exchange Visitor Visa Program) provided information for exchange visitors currently in the United States whose travel may be affected by COVID-19. Specifically, the Department of State indicated that U.S. Citizen and Immigration Services (“USCIS”) could exercise its discretion to extend or change the status of foreign nationals in the United States who are in J-1 exchange visitor status, and in some cases provide student work authorization, for those individuals who cannot depart the United States because of what’s going on in their home country.
And finally, on March 3, 2020, USCIS confirmed that, out of an abundance of caution, it temporarily closed its Seattle Field Office after one of its employees exhibiting flu-like symptoms confirmed having been potentially exposed to COVID-19.
So, clearly events are very fluid, both from a medical perspective (which this article is not about) and otherwise. COVID-19 is having far-reaching impacts, including in my little piece of the world. This article is not about whether the President or his Administration’s response has been appropriate, timely or otherwise. It is meant simply to be factual and to provide timely guidance for those who may be impacted.
 Indeed, in addition to U.S. Citizens and lawful permanent residents, the Proclamation does not apply to: (a) spouses of a U.S. citizen or lawful permanent resident; (b) parents or legal guardians of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21; (c) siblings of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21; (d) children, foster children, or wards of a U.S. citizen or lawful permanent resident, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications; (e) foreign nationals traveling to the United States at the invitation of the United States Government for a purpose related to containment or mitigation of the virus; (f) nonimmigrants under section 101(a)(15)(C) or (D) of the Immigration and Nationality Act (8 USC 1101(a)(15)(C) or (D)), as a crewmember or any alien otherwise traveling to the United States as air or sea crew; (g) nonimmigrants on an visas related to foreign government officials or the immediate family member of an official), (h) foreign nationals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee; (i) foreign nationals whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or (j) foreign nationals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.
There’s been no shortage of things to write about over the past two-and-a-half years, either substantively or otherwise. The Trump Administration’s (or Stephen Miller’s) decision to change the “public charge” rule ranks up there as one of the most important things that I’ve had an opportunity to address. Assuming no litigation to stop the change, the proposed change to the “public charge” rule will dramatically expand the number of immigrants that the Department of Homeland Security (DHS) could deem ineligible for lawful permanent residence (i.e., for Green Cards) or admission to the United States on account of income level and prior use of certain public benefits.
As often is the case in these articles, a little context is in order.
Under the Immigration and Nationality Act (INA), an individual may be denied admission into the United States or denied the ability to become a Green Card holder if he or she is “likely at any time to become a public charge.” An individual who has previously been admitted to the United States may also be subject to removal / deportation from the United States based on a separate public charge ground of deportability. There are certain exemptions to these provisions (e.g., for refugees and asylees).
DHS and the Department of State (DOS) are the agencies that implement the INA’s public charge provisions. DHS addresses whether to make a public charge determination when an individual applies to become a Green Card holder in the United States. DOS, on the other hand, makes its own public charge determination when its consular officers review applications for immigrant visas (the document that allows an individual to enter the United States as an LPR).
Although the INA does not itself define what the term “public charge” means, DHS guidance has defined it to mean a person who is or is likely to become “primarily dependent” on “public cash assistance for income maintenance” or “institutionaliz[ed] for long-term care at government expense.” Historically, in determining whether an individual meets the definition for public charge inadmissibility, a number of factors must have been considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge. Also important in the consideration is whether the petitioner who, e.g., sponsored his or her qualifying family member, submitted a sufficient “affidavit of support”.
On August 14, 2019, DHS published a final rule governing the INA’s public charge grounds of inadmissibility. It goes effect on October 15, 2019. If not prevented from going into effect, the rule will have a chilling effect on families throughout the country who choose to forgo essential services to avoid imperiling their immigration status. (Candidly, the very announcement of the new rule has already had this chilling effect.)
The new rule dramatically changes the standard by which DHS determines whether an applicant for a Green Card or admission to the United States is “likely at any time to become a public charge.” Under the new rule,DHS removes the consideration of whether an individual is primarily dependent on public benefits, and now redefines public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period. This rule will severely punish individuals for seeking basic needs and will no doubt put families at risk of separation.
As alluded to earlier, under current law, a petitioner (e.g., family member) for someone applying for a Green Card or admission as an immigrant is typically required to file an “affidavit of support”, which wasn’t always outcome-determinative as to whether an individual would likely at any time in the future become a public charge, but was very helpful in swaying that determination in favor of the applicant. Not so any longer under the new rule. Under the new rule, DHS adjudicators will apply a complex totality of circumstances test that weighs the individual’s age, health, family status, education and skills, and assets, resources, and financial status, all while taking into account a broad range of positive and negative factors. DHS has also indicated in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits defined by the rule.
There are many consequences to this new rule. The new rule is far more restrictive than current policy, and no doubt will result in higher denial rates for those applying for Green Cards that are subject to public charge determinations. Moreover, the new multi-factor test will leave too much discretion to DHS adjudicators and likely will also produce inconsistent and unpredictable decisions.
As bad as all that is, and it’s bad, more importantly the announcement of the new rule, and its implementation, has created and will now exacerbate a chilling effect felt throughout immigrant communities. According to the Urban Institute, about 14% of adults in immigrants families indicated that they or a family member opted not to participate in a non-cash public benefit program in 2018 because of their concern over jeopardizing their green card eligibility. Again, this new rule will punish individuals for seeking very basic needs.
This new rule is yet another brick in what has come to be known as Trump’s (or dare I again say Stephen Miller’s) “invisible wall”, which has been nothing more than far-reaching policies and practices restricting legal immigration to and in the United States. Enough is enough.
INA §212(a)(4); 8 U.S.C. §1182(a)(4)(A).
See“Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).
An exception to this would be the lack of an “affidavit of support,” if one is required for an individual to become an LPR or to be admitted to the United States.
Seee.g., 8 U.S.C. §1183a.
8 C.F.R. §212.21(a).
The new rule defines a public benefit as (1) Any federal, state, local, or tribal cash assistance for income maintenance, including: (a) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.; (b) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.; (c) Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); (2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c; (3) Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f; (4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f); (5) Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and (6)
Public housing under section 9 of the U.S. Housing Act of 1937.
The other day, I saw the following headline on the NBC news site: Rep. Steve King: I drank from the toilet-fountain hybrid at border facility and it was ‘pretty good’. The article describes Rep. King’s recent visit to a migrant detention center where he explains that he “went into that cell where it was reported that they were advised they had to drink out of the toilet” and that drink was “pretty good.”
I’m sorry, what?
I’ve worked in this field, either as a lawyer or an advocate, for over 30 years now. Immigration has always been a hot topic, but never the proverbial third rail of politics as it is today (and has been for about the last three years). When I read the article, I thought it would be interesting (but ultimately found it to be rather sad) to take a sampling of other immigration-related articles that have been in the news cycle over the last month or so. Here a just a few:
- Many Moms Say Kid’s Health Worsened in Immigration Custody. According to the New York Times, a Dilley Pro Bono Project study found mothers who were detained this past summer reported that the health of their children worsened in custody, including bouts of fever, vomiting and diarrhea.
- Pentagon Details Programs Targeted for Cuts to Fund Border Wall. The Wall Street Journalreports that the Trump administration plans on diverting $3.6 billion from military-construction projects in 23 states, 3 U.S. territories and at least 19 countries to build or fortify portions of the President’s wall along the U.S.-Mexico border. Recall, of course, that the President has told us countless times that the wall would be paid for by Mexico.
- Chief of U.S. asylum office reassigned as White House pushes for tighter immigration controls.According to the Washington Post, in what appears to be a demotion, the head of the asylum office at U.S. Citizenship and Immigration Services (“USCIS”) is being removed from his job and reassigned, “a move that follows multiple White House-directed attempts to raise new barriers to those seeking humanitarian refuge in the United States.”
As I write this article, the articles above are just from the day before. Here are a couple more from August.
- Trump Administration to Divert Hurricane Relief Funds for Border Detention. Just days before Hurricane Dorian devastated the Bahamas, and was on track to impact coastal areas of the United States (although not Alabama), The Wall Street Journalreported that the Trump administration planned on using $271 million of Department of Homeland Security (“DHS”) appropriated funds, including some funds designated to help hurricane-stricken areas, to detain and remove immigrants who unlawfully cross the southern U.S. border.
- Fed Up With Immigration Backlog, Lawyers Head to the Courts. As a result of what I can only say feels like unprecedented backlogs and delays, Bloomberg reports that attorneys are turning to the federal courts in an effort to “unclog” massive immigration application backlogs, some lasting up to seven years for simple applications.
There are so many more. The new “public charge” rule,the immigration raids in Mississippi and the countless kids left parentless as a result of them, and so on and so on.
What have we become? Who have we become? The bad news seems endless, and with it, we see almost daily dramatic changes in DHS policy under the Trump administration which have and continue to undermine our legal immigration system that the agencies that were created to facilitate.
There are processing delays, changes impacting students and scholars, changes in the “public charge” ground of inadmissibility, not to mention the ever-present issue that U.S. employers undergo annually to hire coveted H-1B, H-2B or H-2A nonimmigrant workers.
We need to hold DHS and the President accountable for the hardship they are creating to families, vulnerable populations, and U.S. businesses around our great country. The public deserves no less.
I will be addressing this very critical change in a separate article.
As I write this article, we’re now into September, the end of summer is here, and my kids are heading back to school. One of my sisters-in-law is an elementary school teacher in the area, and invariably when we gather at family events, she tells me that her best and hardest working students are those from other countries. She also tells me that those kids’ parents support their kids and their education in ways she does not see with their U.S. citizen counterparts. As she states it, it just seems to mean more to them.
This always makes me think about immigration and education in America. There are so many ways to approach this. From elementary school through college and beyond, foreign students and their parents face a myriad of challenges, including simply attaining their educational goals, including accessing college.
All children, regardless of their immigration status, have a constitutional right to attend our nation’s public schools from kindergarten through high school. While a quality education can provide low-income Americans and immigrants with a path out of poverty, the challenges confronted by students who are not proficient in the English language create additional hurdles for immigrant students. Yet, as my sister-in-law always notes, they and their families work very hard to succeed. And this success can be measured.
During the Trump presidency, we’re becoming numb to the inflammatory rhetoric about immigrants, and it seems that the President’s focus for the 2020 elections will not be on traditional kitchen table issues, but rather divisive and misleading statements about America’s borders, asylum seekers, and the like. The undertone of all this is that some how immigrants pose both a physical and economic threat to native-born Americans. Nothing could be further from the truth.
Here are some facts:
- According to the Brookings Institution, children of immigrants tend to attain educational outcomes that are like those of native-born Americans, but with higher rates of college and postgraduate attainment (i.e., they are more likely to be highly educated).
- According to the Cato Institute, 43% of all recently-arrived immigrants are college graduates, compared to 29% of native-born Americans.
Fast-forward to what happens after these kids get out of college:
- A June, 2011 report from Partnership for a New American Economy states that 40% of Fortune 500 companies were founded by immigrants and their children, employing over 10 million people worldwide.
According to Inc., immigrants launch 20% of U.S. businesses despite being only 13% of the population.
There’s no shortage of data on the positive impact of immigration on our economy. And an argument can be made that it all starts with a quality education. While the federal government imposes significant restrictions on foreign students who wish to come to the United States to study (e.g., they most show that they have sufficient funds to cover all their expenses during their anticipated course of study), many states, including New York, are now becoming more progressive in enacting tuition equity laws for those foreign nationals already present in the United States.
Generally, these laws permit certain students who have attended and graduated from secondary schools in their state to pay the same tuition as their “in-state” classmates at their state’s public institutions of higher education, regardless of their immigration status. Some states, New York again also included, offer financial assistance to students who meet certain criteria, regardless of their immigration status.
These laws are being enacted to help young people (like Dreamers), who were brought to the United States by their parents, through no fault of their own, who have worked hard in school with the hope of going to college and often discover that they face obstacles preventing them from doing so, again not of their own making.
And, playing it forward from what my sister-in-law tells me, the students (and their parents) who benefit from these policies tend to be very goal-oriented, with very high academic standing. Why in the world would we want to hinder their academic success when the resulting benefits of their education are so positive for America? Among other things, immigration makes America great … and always has.
Plyler v. Doe, 457 U.S. 202 (1982).