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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.
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.
I started writing this blog in 2013. I’ve actually enjoyed writing (just about) every piece. It gives me time to step away from my daily practice, put “pen to paper”, and educate some of you on the complexities of my world (i.e., my law practice).
Since 2016, this article has also given me the opportunity to vent, perhaps a lot, and maybe even too much. Many of you have noticed. As if the practice of immigration law is not complex enough, it became unbelievably more so, unnecessarily in my opinion, when Donald Trump was elected as our 45th U.S. President.
Right now, the field for 2020 is narrowed down to two. The race has been fully joined. Donald Trump versus Joe Biden. What does that mean for “immigration”? A lot!
Let’s reflect back to the President’s inaugural speech. “We, the citizens of America, are now joined in a great national effort to rebuild our country and to restore its promise for all of our people.” These were just about the first words uttered by President Trump in his inaugural address. Almost four years later, given the President’s rhetoric on the campaign trail (both then and now), I continue to find it ironic that he in the same sentence speaks how “the citizens of America” would restore our country’s promise “for all of our people.”
Hindsight is 20/20. “All of our people” does not mean everyone that’s here. Nope, citizens only for our President. “Every decision on … immigration … will be made to benefit American workers and American families.” Well he’s held true to that statement. Fewer (and in some case almost no) rights for almost everyone else, whether they are lawfully living in the United States or not.
You might recall that President Trump quoted the Bible in his inaugural speech; specifically, “how good and pleasant it is when God’s people live together in unity.” I agree. “All of our people” should be able to remain here and live here in unity.
Joe Biden strikes me as a person of profound compassion. Among other things, his platform advocates for immediately reversing the Trump Administration’s cruel and senseless policies that separate parents from their children at our border. His platform also advocates for ending President Trump’s detrimental asylum policies, reversing Trump’s public charge rule, ending the so-called “national emergency” that bleeds federal dollars from real national security concerns to build a wall (that Mexico was supposed to pay for), and protecting Dreamers and their families. Mr. Biden also advocates for rescinding the President’s travel and refugee bans, commonly referred to as “Muslim bans.” He also advocates for restoring sensible enforcement priorities (at our border and within the U.S.).
Equally as important, Mr Biden’s platform calls for modernizing America’s immigration system, including creating a roadmap to citizenship for the nearly 11 to 13 million people who are present in the United States, have been living in the country for years, but are without status and often are here through no fault of their own. I’m all for that.
Of course, he cannot do it alone. He’ll need lots of congressional support in order to accomplish any of this. For starters, though, we must do our part. We need to vote. We need to vote like our country depends on it. Because it does.
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.
So between COVID-19 (2.0) and COVID-19 (3.0), President Trump signed a proclamation (not an executive order as many have reported) temporarily suspending the entry of certain immigrants into the United States in light of the COVID-19 pandemic. What exactly does this mean? Practically, not much. 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 he do it? Politics as usual.
First, some details. The President’s proclamation suspends the entry of any individual seeking to enter the United States as an “immigrant” who (a) is outside the United States on the effective date of the proclamation (the proclamation went into effect at 11:59 pm (ET) on April 23, 2020), (b) does not have a valid immigrant visa as of April 23, 2020, and (c) does not have a valid official travel document as of April 23, 2020, or issued on any date thereafter. The proclamation is in effect for sixty days.
The following individuals are exempt from the President’s proclamation: (a) lawful permanent residents (i.e., Green Card holders); (b) individuals, and their spouses and children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional, to perform medical research or other work essential to combatting COVID-19, as determined by the Department of Homeland Security (“DHS”) and the Department of State (“DOS”); (c) individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program; (d) spouses and children under the age of 21 of U.S. citizens, including prospective adoptees on certain types of visas; (e) individuals who would further important U.S. law enforcement objectives (again, as determined by DHS and DOS); (e) members of the U.S. Armed Forces and their spouses and children; (f) Afghan and Iraqi nationals who were translators/interpreters or employed by the U.S. government and their spouses or children seeking entry pursuant to a Special Immigrant Visa; and (g) individuals whose entry would be in the national interest (also as determined by DHS and DOS).
But here’s the thing. As I alluded to at the outset, most routine visa services at U.S. embassies and consulates across the world have been suspended since March 20, 2020. (1) U.S. Citizenship and Immigration Services (“USCIS”) has, until at least June 4, 2020, suspended in-person services (although it does continue to accept and process applications and petitions, which are processed at its “service centers”, which are not accessible to the general public). The U.S. borders with Canada and Mexico are closed for non-essential travel until, at this point, at least May 20, 2020. And, with few exceptions, the entry of individuals who were in countries such as China, Iran, the United Kingdom, and Ireland, during the 14-day period immediately before their desired date of entry into the United States, has also been suspended. (2)
Interestingly, though for purposes here, individuals who hold nonimmigrant visas (i.e., temporary visas like tourist visas or some work visas) are not prohibited from coming to the United States under the Proclamation. Why not? The President’s proclamation requires a review of temporary visa programs within thirty days and seeks recommendations to stimulate the U.S. economy to ensure “the prioritization, hiring and employment” of U.S. workers. And there you have it. “It’s the economy stupid!”
In the face of all the criticism about how he personally has handled (or mishandled) the COVID-19 pandemic, I am surprised it took so long before he resorted to distraction, blame, and fearmongering. Instead of focusing on the public health crisis that we’re all dealing with on a daily basis, the President has cloaked the proclamation as a means to “put unemployed Americans first” amid the massive job losses that all workers (both U.S. and foreign born) are experiencing as a result of COVID-19. It’s nothing more than a political ploy. It’s fodder for his political base.
I have written about, and substantiated, on a number of occasions, that immigrants create jobs, are innovators and entrepreneurs, and meet important U.S. workforce needs. A study written by Madeline Zavodny, an economics professor at the University of North Florida, for the National Foundation for American Policy, concluded, “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation. Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate.” (3)
When the proclamation was announced, and even days before with the lead-up, I was getting panicked calls from current and potential clients about what impact the President’s proclamation would have on their cases or situation. This is nothing more than a distraction to what I personally believe is the real issue. The President’s concern over the election.
I am not at all suggesting that our government should not be doing something to control the entry of any individual into the United States who may have been, during the 14-day period immediately before their desired date of entry into the United States, in an area that is severely impacted by COVID-19. Not at all. But the President’s policy of limiting immigrants from entry into the United States has no rational basis. He’s not saving American jobs; he’s also not making us any safer or more secure. To restore our country’s health, physically, mentally and economically, we need to keep our focus on moving forward together. We are stronger together.
The United States is facing a public health crisis, and a resulting economic crisis, unlike any that we have ever faced in our lifetimes. We need a better and more organized public health response. This will get our society back on track and our people back to work. Everything else, especially the President’s proclamation, is a distraction from this priority.
(1) U.S. embassies and consulates continue to provide urgent and emergency visa services as their resources allow. And, the DOS, at this point, continues to process visa applications for farm workers and medical professionals assisting with COVID-19.
(2) Importantly, asylum seekers are not prohibited from coming to the United States.
(3)Madeline Zavodny, “Immigration, Unemployment and Labor Force Participation in the United States,” National Foundation For American Policy, NFAP Policy Brief , May 2018.
I recently sat for an interview with a reporter who is doing a series of articles on changes in immigration policies with a specific focus on our immigration court system. As I was speaking with this person, our conversation veered outside that lane, and we started talking about changes in immigration policy more broadly. We’ve seen a lot over the past year, but since Donald Trump became our president, the changes in U.S. immigration policy, whether planned or otherwise, have been dramatic. It’s probably not surprising when you have someone like Stephen Miller being the puppeteer for the marionettes.
Some have called it the “invisible wall.” The what? Yes, the invisible wall. While the President has been very public about his desire to construct a physical wall on our Southern border, slowly but surely, he and his minions are quietly and deliberately restricting and slowing the pace of legal immigration by building an “invisible wall.” We’ve seen travel bans, extreme vetting directives, the slowing or stopping of the admission of foreign workers and entrepreneurs into the United States, the ending or reduction of programs for vulnerable populations, and, most recently, obstacles to the naturalization of foreign-born soldiers in the U.S. military.
The most significant change has been processing delays at U.S. Citizenship and Immigration Services (“USCIS”). Most readers of this article are familiar with the H-1B nonimmigrant visa program which, for many employers, requires a petition to be filed on or about April 1 each year for a employment start date of October 1 of the same year. Well, I recently had a case for a client where we filed their petition on April 1, 2018, and their petition was “finally” approved in November, 2019. That’s a year and a half. I will grant you that this is an extreme example, but the point remains. Case processing delays and applications backlogs at USCIS are out of control. These unprecedented processing delays affect individuals, families, and American businesses throughout the nation.
Most of my personal practice involves employment and business-related immigration. I work with employers to facilitate their access to talent in what is now a very tight job market. I work with companies that are on the cutting edge of science; colleges and universities who are educating our future entrepreneurs and investors; and health care professionals in rural areas that supply health care to underserved communities. Processing delays and case unpredictability does not help businesses in my community and beyond solve their very real staffing needs and challenges.
In April, 2019, USCIS responded to a February 2019 letter sent by 86 Members of the House of Representatives who had expressed concern (and demanded accountability) about USCIS’s processing delays. In its response, USCIS revealed that in Fiscal Year (“FY”) 2018, the agency’s “gross backlog”, that is, its overall volume of delayed applications and petitions, reached 5,691,839 cases. That number is staggering, and according to USCIS, marks a 29 percent increase since FY2016 and a 69 percent increase since FY2014. What’s more, this backlog rose from FY2017 to FY2018 despite a substantial decline in application rates and an increase in its budget during that period. That’s right, USCIS had more resources with which to process fewer new cases, yet its gross backlog still grew. I’m sorry, what?
According to a recent article in the Washington Post, there an estimated 800,000 foreign nationals who are working legally in the United States who are also waiting for a green card. Most of those in the queue are Indian nationals. According to the article, an Indian national who applies for a green card today could expect to wait up to 50 years to receive it.
What about citizenship applications? Since 2016, the processing time for citizenship applications has almost doubled, increasing from about 5 ½ months to over 10 months as of March 31, 2019.
Lawyers are now more than ever taking matters into their own hands. While it used to be the case that lawyers waited to sue the government until a client’s application or petition was denied, or perhaps waited until a case was “outside normal processing times” to sue, but processing times are so out of whack immigration attorneys have no choice but to sue.
It’s difficult enough explaining the ins and outs of our immigration system and processes to clients. Tack on the substantial costs involved in pursuing some immigration benefits (without the prospect of litigation to simply move the case along), and top it off with significant delays, and you can see why many in Congress and the media have called the delays we’re experiencing as being at crisis levels. These delays and backlogs have real impacts on individuals, families and businesses. It impacts our overall economic growth. We deserve better.
As we usher out 2019 and bring in a new year (and a new decade), let’s resolve to pass meaningful and comprehensive immigration reform, be a lot more compassionate to those of our southern neighbors who are fleeing their home countries in search of a better and safe life, and work a little harder to poke some holes and even knock down that invisible wall that’s been erected over the past three years.
 “Historical National Average Processing Time for All USCIS Offices,” USCIS, March 2019, https://egov.uscis.gov/processing-times/historic-pt.
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, the Saratoga thoroughbred racing season is just days away from its opening day. The trainers, veterinarians, farriers and jockeys can all be seen milling around the barns and training track. Downtown, the community is buzzing with visitors from all over the world, and the restaurants and other hospitality-based businesses are filled to capacity.
Meanwhile, in Washington, D.C., our president is planning large-scale enforcement actions and raids, apparently in ten major cities across the country. Media outlets are reporting that the raids will take place in Atlanta, Baltimore, Chicago, Denver, Houston, Los Angeles, Miami, New Orleans, New York City, and San Francisco.
Although not a major city (size-wise anyway), the President’s proposed actions have people and businesses worried in my own hometown of Saratoga Springs. Unfortunately, it is now common to see U.S. Immigration and Customs Enforcement (“ICE”) conducting enforcement actions in our community. It started in earnest in the Spring of 2017, and it continues today. It is having a real impact on service-industry businesses. This time of year, it also impacts the race track’s back stretch workers.
The back stretch workers are absolutely essential to the horse racing industry. They do all of the little things to make our track experience enjoyable (and candidly they perform jobs that most U.S. workers don’t want to do.). A great many of these workers are foreign workers. And although most of these workers are here lawfully, certainly some are not. Likewise, in our restaurants and hotels, many of the back-of-the-house workers that you rarely if ever see are also foreign workers. And yes, I am sure some of them are not here lawfully.
President Trump’s enforcement actions and raids are happening amid a very tight labor market nationally. Saratoga Springs is fortunate to have very low unemployment. But with that comes issues associated with hiring and retaining enough workers to fill year-round labor needs, including the bump that employers need during track season.
Some reports suggest that President Trump’s immigration raids will focus on migrant family units with final orders of removal. Other reports have indicated that targeted individuals will be minors who came into the U.S. without their parents and have since turned 18, individuals who were ordered removed in absentia, and individuals who missed a court hearing and did not thereafter respond to letters mailed to their homes by the Department of Justice. The common theme seems to be the mass round-ups of vulnerable families from Central America who have fled to the United States to seek asylum and have since been ordered removed.
In this era of enforcement actions and raids, it is critically important that we remember that every person living in the United States, including those individuals who are undocumented immigrants or otherwise here unlawfully, have certain rights under our Constitution, whether they be in public, in their workplace, or in their home.
If you know someone who is undocumented or otherwise present in the United States unlawfully, and an ICE officer stops them on the street or in a public place, they have rights. First, they have the right to remain silent. They do not need to speak to the immigration officers or answer any of their questions. Second, they may refuse a search. If they are stopped for questioning but are not arrested, they do not need to consent to a search of themselves or their belongings. (An officer may “pat down” an individual’s clothes, however, if he or she suspects an individual has a weapon.) Finally, every individual has the right to speak to a lawyer. If an individual is detained or taken into custody, then he or she has the right to immediately contact a lawyer.
If an individual is in their home, and an ICE officer knocks on their door, in addition to all of the above rights, they do not have to open the door or let the officers into their home unless they have a valid search warrant signed by a judge. Finally, if an ICE officer comes to someone’s work place, they again must have a valid search warrant or the consent of the employer to enter non-public area.
The President’s enforcement plans are a monumental waste of time and resources and, as always, grounded in politics. We should all remain focused on real solutions to the immigration problem that has plagued our country for longer than I care to remember. The members of our community who are being arrested, detained and deported are mothers, fathers and children. They’re our neighbors. They’re the people who make your summer in Saratoga experience all that you want it to be for you and your families. Let’s stop playing games and starting working on real solutions. It’s about time.