By Lum Law Group 0

Today, March 18, 2021 the House of Representatives passed the American Dream and Promise Act. The Act will provide a pathway to citizenship for undocumented immigrants. These include undocumented immigrants brought here as children and for people who are here for humanitarian reasons (Temporary Protected Status, or TPS). The bill excludes individuals who entered the United States after January 1, 2021 (this year). A summary and the full text of the bill can be found at https://www.congress.gov/bill/117th-congress/house-bill/6.

This is a great first step to address the plight of a substantial number of individuals. However, it is still too early to celebrate. The more difficult task is to convince 60 senators to support this Act. The Democratic Party has a simple majority in the Senate, but this doesn’t mean the Senate will pass the Act in its current form. The reality is that if a filibuster is announced by senators opposing the bill, the bill would not be put up for a vote unless 60 senators vote to cease debate (and the filibuster) of the bill. Thus, the bill requires 60 senators’ support the Act. It is also possible the Senate will propose changes to the bill for it to pass.

By Lum Law Group 0

The Supreme Court has made it harder for undocumented immigrant in the U.S. to prevent deportation. In a decision on March 4, 2021, the U.S. Supreme Court, in Pereida v. Barr, held that the petitioner, Clemente Pereida had the burden of proof to show that his conviction for using a fake social security card to get a job was not a crime of moral turpitude. If that burden is not met, then a finding that he has committed a crime of moral turpitude means that he can be prevented from obtaining certain forms of relief, including in his case, cancellation of removal.   An analysis of this decision can be found at

What does this mean? By ruling that undocumented immigrants must prove their violation was not a crime of moral turpitude it puts a greater burden on undocumented immigrants to make sure that if they pled to committing a crime, even a misdemeanor, that the crime not be considered a crime of moral turpitude.

Many individuals believe that if they have been arrested and their criminal offense is negotiated to be a misdemeanor rather than a felony, their immigration status will not be affected. That may not be the case.

What should you do? If you are not a citizen, if you are an undocumented immigrant or if you are a permanent resident (green card holder), or here on any type of work or student visa, and you are arrested for anything obtain counsel before you make any statements to the police (you have that right). Make sure you have a competent criminal attorney and a competent immigration attorney who can work together to make sure that whatever result is determined or is negotiated will not affect your immigration status, if possible.

Of course, if possible, the better course is to stay away from any possible situations (such as drinking before driving, or even getting in the car with anyone who has had a drink) that could affect your immigration status. It’s just not worth permanent inadmissibility to the United States.

I sometimes joke with my clients that as long as they are not a citizen, they must be angels. If they have citizenship and want to commit a crime and go to jail, then the only result (which is still bad) will be they go to jail. If they do not have citizenship, then they will go to jail, be removed and can never return. For people who have been in the United States since an early age and call it home, that is an unacceptable result.

But, if you are unfortunate to be in that situation, then find the right attorneys to legally assist you in trying to prevent an unfortunate result from happening.

So what happened to DACA?

By Jessica Suotmaa 0

The Obama-era Consideration of Deferred Action for Childhood Arrivals (DACA) program has been through a roller-coaster ride of ups and downs recently.  On June 15, 2020, the Department of Homeland Security (DHS) released a memorandum regarding DACA (“first memorandum”). However, when the Supreme Court released its decision in the lawsuit Trump v. NAACP, No. 18-588 on June 18, 2020 to prevent the end of the DACA program, DHS had to update its policy.   The updated memorandum was released on July 28, 2020 (“second memorandum”) abides by the Supreme Courts decision to prevent the end of the DACA program.   At this point, there were still questions on how DACA applications will be handled.

On August 21, 2020, the United States Citizenship and Immigration Services (USCIS) released a policy guidance on how the agency will adjudicate DACA applications and associated work permit applications based on the second memorandum.  In this post, we highlight the key points of the current DACA policy guidance based on commonly asked questions.

Will all DACA applications and work permit applications be denied?

The second memorandum applies to “initial” DACA applications and its associated employment applications (I-765). If you’ve already been granted DACA at some point, then your application is not an “initial” application. If you’ve never been granted DACA, then your DACA application will be automatically rejected.  It does not matter if you filed the application before the release of the first or second memorandum. If you do not have an approval, then your application was “pending”, and thus it will be rejected.

Rejected applications will not be reviewed at all, so USCIS will refund the application fees.

If your application is rejected, it will not affect your chances at reapplying.   If there any changes to the DACA situation, and your able to reapply, the rejected application will not count against you.

What if I had DACA, but I didn’t renew it before it expired?

A key difference between the first memorandum and the second memorandum is how USCIS processes DACA applications with expired status.  Before the memorandum, USCIS allowed reapplications for DACA recipients with expires statuses up to one year.  The first memorandum would have changed this, but the second memorandum upholds the previous adjudication method.

In sum, you have one year to renew your DACA after its expired.

Should I file my DACA renewal even though I still have time?

Although the official recommendation has been to file DACA renewals 150 days or less before its due, many have attempted to file early in hopes of extending their DACA before the program ends.  However, the second memorandum states that USCIS has not been processing DACA renewal applications that have more than 150 days left. Instead, USCIS has placed such applications in “pending” status.

From now on, USCIS will reject any DACA renewal application that is filed more than 150 days before its expiration, unless there is a valid reason for the renewal.  In other words, there is no point in submitting an early renewal unless you have a very good reason.

Will my DACA status be shortened from two years to one year?

If you currently have DACA status, the second memorandum will not “shorten” the duration of your status.  However, when you apply to renew your status, you will find that USCIS only grants one year extension at a time.

Employment Authorization Document (EAD), or work permits, will also be renewed for one year at a time.

Will I have to pay more if I renew after October 2nd, 2020?

Recently, USCIS announced it will increase certain application and petition fees starting from October 2nd, 2020.  The EAD renewal and biometrics fees will not increase for DACA renewal applicants.

Can I apply for a Travel Document (Advanced Parole)?

The short answer to this is “no”. However, it can depend on your circumstances.

The second memorandum states that any Advanced Parole (Form I-131) filed before July 24, 2020 will be rejected. USCIS will refund all I-131 application fees. Applicants are allowed to reapply, but the form instructions have changed on the USCIS website.

If you have DACA, but you also have another pending immigration benefit, such as a permanent residence application (Form I-485) pending, then you can apply for advanced parole using the requirements associated with that immigration benefit.

Otherwise, the second memorandum states that DACA holders can only apply for advanced parole under “exceptional circumstances”. It even goes further to specify what is not an exceptional circumstance:

    • Traveling abroad to visit family and friends
    • Going on a vacation
    • Traveling abroad for educational purposes
    • Traveling abroad for work purposes

So what is considered an “exceptional circumstance” that would allow a DACA holder to receive a travel document for traveling out of the country? The second memorandum offers a few examples:

    • Travel to obtain life-sustaining medical treatment that is not available in the U.S.
    • Travel to support the immediate safety, well-being, or care of an immediate relative, such as a minor.
    • Travel in the interest of U.S. national security or interests.

Finally, the memorandum states that if you’ve already been granted advanced parole, it will not be cancelled because of the memorandum.

 

Are you a current DACA holder with questions regarding status renewal or your work permit? Contact us for how we can help you with your situation. Or are there questions that were not answered in this post? Comment them below!

7 Things to Know About USCIS new Fee Rule

By Jessica Suotmaa 0

On July 31, 2020, the United States Citizenship & Immigration Services (USCIS) released the final rule regarding their proposed changes to immigration benefits and their associated fees.  While many news agencies have highlighted the increased costs in fees, and many non-profits have highlighted how asylum applicants would have to pay a fee, the actual rule includes many other provisions that may affect your specific circumstances. Before the rule goes into effect on October 2nd, 2020, find out whether you should begin that application or petition process you’ve been thinking about.  In this article, we highlight the five most important points to know about the new 2020 USCIS benefit and fee changes.

1. Form Fees Will Go Up

USCIS has announced many form fees will increase in order to meet their adjudication costs. Here’s a copy of their published list:

2. Asylum Applications Now Have a Cost

In order to file an asylum application, applicants will have to pay a $50 application fee and a biometrics fee of $30.

Application fees will be waived for initial EAD (Form I-765) and green card application (Form I-485) for those who were granted asylum or admitted as refugees.  In addition, the fee for refugee travel documents will continue to be reduced.

Note that the rule states:

“At the USCIS Director’s discretion, USCIS may waive or exempt the fee for any
form, including those filed by asylees and refugees. See 8 CFR 106.3(b), (e).”

 

3. Fee Waivers May not be Available

Not only does the new rule restrict which forms qualify for a fee waiver, it also adjusts the income restriction from 150 percent of the Federal Poverty Guideline (FPG) to 125 percent of FPG. To see what the federal poverty guideline means in 2020, click here.

USCIS is also changing the language in its fee waivers from “inability to pay” to clearly defined requirements, such as requiring W2 wage statements, federal income returns, or IRS certificate of non-filing to prove income. This removes the “means-tested benefit” as proof of low income, meaning proof of qualifying for benefits intended for low income recipients would not be enough to prove fee waiver eligibility, e.g. submitting Medi-Cal benefit card or food stamps statement.

Here’s a list of forms and their fee waivers for your convenience:

4. Applying Online is $10 Cheaper

To encourage online application filing, USCIS will lower the online application fee by $10.00 compared to the fee for the same paper form.

5. Biometrics Fees Changed

Overall finger print fees are reduced from $85 to $30, except for DACA applicants.

 

6. No Refunds for Fees

While we weren’t aware this was an issue, but the rule clarifies that all USCIS fees are “generally” non-refundable. This includes adjudication fees, H-1B registration, DACA, etc.

 

7. DACA Fees Remain the Same

Contrary to the proposal, USCIS will not be increasing DACA application and renewal fees, but will maintain the fees that were in effect before September 5, 2017 (no change).

 

Do you have questions about USCIS new rule regarding fees and benefits? Was there something specific you had expected to read about, but was not highlighted? We would like to hear from you! Leave us a comment or send us an email.

public charge rule and covid-19

By Jessica Suotmaa 0

The “Public Charge” rule in a nutshell is how new green card applicants will be judged based on how financially self-sufficient they are, and consequently how likely they are to become reliant on welfare.  We have previously covered the new Public Charge Rule that was to be enforced since February 24, 2020:

With our current situation due to COVID-19, at least our home state of California has widened the reach of unemployment benefits and even announced an eviction moratorium until September 30, 2020, it’s hard to imagine the possibility of a long-time awaiting immigrant to lose the opportunity of permanent residence in the United States due to coronavirus induced financial difficulties.

Many have suffered job losses, illness, and other hardships as a result of the COVID-19 pandemic, which was declared a public health emergency on January 31st, 2020.  Here’s what we know:

On July 29th, 2020, a federal judge blocked the “Public Charge” rule from being enforced.  This block also applies to the rules regarding private health insurance for visa applicants.

United States Citizenship and Immigration Services (USCIS) announced the following:

  • USCIS will not reject or deny any green card application (form I-485) based on the public charge rule, even if it was filed after February 24, 2020;
  • USCIS will not reject or deny any green card application that is missing the new public charge form (I-944) or includes incomplete information;
  • USCIS will continue to process permanent residence applications according to rules prior to the release of the Public Charge Rule;

In the same announcement, USCIS stated that it would apply the Public Charge Rule to applicants applying from abroad after February 24, 2020.

 

If you have any questions regarding your green card application or the Public Charge Rule, please contact our office to speak with an experienced immigration specialist.

attending and scheduling an immigration appointment during COVID19

By Jessica Suotmaa 0

During the novel COVID-19 pandemic, we are all trying our best to stay safe, stay home, and keep our distances.  However, with United States Citizenship and Immigration (USCIS) offices opening up starting June 4, 2020, some of us may need to make a visit.

A few reasons why you may need to visit USCIS include:

Generally, if your appointment was cancelled due to office closures, you do not need to do anything. You will receive a new appointment notice in the mail.  This also applies to biometrics appointments for finger printing.

If you need an appointment for some other purpose, e.g. an INFOPASS, then you can make one through the USCIS contact center if your local office is open. Not all offices will be open, so check the USCIS office closures page to see if your nearest office is on the list. If it is, it’s closed.

If you need assistance with an application or petition, scheduling an appointment, or cancelling a scheduled appointment, feel free to contact our office for support.

When visiting USCIS offices, be sure to be prepared in the following ways:

Remember to follow the general coronavirus guidelines in moving outdoors, which is to stay home if you’re feeling unwell.  If you are sick, have symptoms, or have been in contact with someone who is sick, please cancel your appointment immediately according to the instructions on your appointment notice.  Your appointment will be rescheduled without penalty.

 

How to request extension of stay due to coronavirus

By Jessica Suotmaa 0

Our office has received numerous inquiries on extensions of stays for those who are in the country on non-immigrant visas.  For some, flights were cancelled by the airline, by their home country, or by other restrictions on travel.  For others, it could be an illness, an imposed quarantine, or a sick family member. Regardless of what the reasons behind the need for extension, the procedure for visa extension is the same for non-immigrant visa holders during the COVID-19 global pandemic.

Non-immigrant Visa

Non-immigrant visa holders needing to extend their stays can apply online on the United States Citizenship and Immigration Services (USCIS) website or by filing a paper copy of the form I-539 Application to Extend/Change Nonimmigrant Status.

Note: The form I-539 now includes questions related to the Public Charge rule as announced on the USCIS alert:

“The final rule requires certain applicants and petitioners seeking extension of stay and change of status to report certain information related to public benefits. Due to litigation-related delays in the final rule’s implementation, USCIS is applying this requirement as though it refers to Feb. 24, 2020, rather than Oct. 15, 2019. Please read all references to Oct. 15, 2019 as though they refer to Feb. 24, 2020.

USCIS will not consider, and applicants and petitioners submitting applications and petitions for extension of stay and change of status do not need to report the receipt of any public benefits received before Feb. 24, 2020.

Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the final rule.”

If you have further questions or are in need of assistance with extending your non-immigrant visa stay, feel free to contact our experienced immigration attorneys.

Visa Waiver Program (ESTA)

If you did not enter the U.S. on a non-immigrant visa, but are nonetheless stuck here due to the coronavirus, we’ll explain the process of how to request an extension of stay.

U.S. visitors who entered through the Visa Waiver Program (ESTA) have ninety days to leave the country. However, if your flight was cancelled due to COVID-19, or if you have other circumstances that require you to extend your stay, you can request approval for Satisfactory Departure through U.S. Customs and Border Protection (CBP).

On April 17, 2020, CBP announced it is offering flexibility for ESTA holders to return home past the initial 90-days if their travel is affected by COVID-19.  ESTA holders can request up to 30-day extensions by either:

  1. Contacting the CBP office at the Port of Entry or Deferred Inspection Site
  2. Contacting USCIS Contact Center (1-800-375-5283)

The “port of entry” refers to where you entered the United States, e.g. Los Angeles International Airport (LAX). The deferred inspection site is usually at an airport or U.S. border as well.

We contacted LAX CBP to determine how to apply for an Extension of Stay and here’s the response we received:

  • You must apply within 14 days of your visa expiration (not earlier)
  • Your extension must be based on a “serious emergency“, such as hospitalization, conditions that require flights to be delayed or cancelled for more than 24 hours
  • If your extension of stay request is based on COVID-19, you’ll have to attach relevant documentation such as flight cancellation notices, positive test results, medical records
  • For ESTA holders, you must include a Extension of Stay request form, signed Affidavit (form), copy of passport biographical page, copy of U.S. nonimmigrant visa (ESTA), and copy of admission stamp in passport

Please note that if you emailed your submission without all necessary documents, your request will be ignored (not denied). You will have to resubmit a new request.

Others who may use this method to request an extension of stay include:

    • F-1 Visa International Students
    • J-1 Visa Exchange Visitors
    • Work visa holders
    • L-1 Visa Holders
    • Adjustment of Status Applicants
    • Refugees

The Extension of Stay request can be completed by an attorney as well. Please contact our office if you would like a consultation, guidance, or assistance with your Request for Extension of Stay.

Do I need proof of residence/citizenship to get tested for COVID-19?

By Jessica Suotmaa 0

If you think about the documents you need to obtain healthcare in the U.S., you might wonder if you need the same set of documents to get tested for the new coronavirus.  Any trip to the doctor would require filling out forms, some sort of identification, and a health insurance card (if you have one).  The forms will often request a social security number or other questions regarding your citizenship.  As such, it’s natural to wonder what forms (if any) you would have to fill out to obtain free COVID-19 testing in Los Angeles county.

It doesn’t hurt to try. We put it to the test, and made an appointment through the local Los Angeles county website. We read the FAQs, just to be sure, and we scheduled an appointment for a drive-through appointment not too far from where we’re located in Pasadena.

To be clear, there is a requirement that you are resident of Los Angeles county for Los Angeles county testing.  Each county will require an address that is within the county. Certain cities have their own tests, such as Alhambra city’s recent announcement, which would require you to be a resident of their cities.

However, you are not required to show proof that you are a resident, like an utility bill or lease.

As far as we know, all free testing sites currently require an appointment.

You fill out the form online and it requires:

  • your name
  • your date of birth
  • your home address
  • your phone number
  • your email (optional for results)

Note: It asks for your email so it can provide you negative test results via email and your phone number for positive test results. If you do not have an email, either will be provided via phone. 

Then, you choose a testing location closest to you. Site locations range from Los Angeles city to Long Beach to Pacoima.

Available testing dates depend on the location. For example, in San Gabriel Valley, the soonest appointment was four days away, but in Los Angeles city we were able to find a next day appointment.

After you schedule the appointment, there webpage provides a confirmation number which you should copy, print, or note down for your visit.

You will need to bring an ID to verify, but it can be a passport, or any form of identification that will allow the medical staff to ensure you are given the correct test results.  Your information is kept private and is protected.

Do you have other questions about COVID-19 and your immigration status? Contact Lum Law Group today. We’re here to help!

Your Immigration Status and Unemployment Benefits in California during the COVID 19 Crisis

By Lum Law Group 0

Your Immigration Status and Unemployment Benefits in California during the COVID 19 Crisis (and can your medical care during the COVID 19 crisis make you inadmissible)

As we are all aware, California is under lockdown and stay safe provisions whereby only essential workers, such as healthcare and supermarket employees, are allowed to work. As a result, our economy has entered a recession with a record number of employees being laid off or furloughed leading to a record number of unemployment claims.

The question is, if I am not a U.S. citizen, can I claim unemployment? Will it affect my ability to become a permanent resident and/or a U.S. citizen even if I can claim unemployment? Does unemployment constitute a public charge under immigration laws?

1. Can I claim unemployment?

In California, in order to claim unemployment, one central question is can you be employed if you were offered a job? If the answer is “yes,” you can receive unemployment compensation.

What this practically means is that you are either a permanent resident (who automatically has a legal right to work), or you otherwise have legal status to work, i.e., have a work permit, although you are not a citizen, or permanent resident. Examples would be asylees, refugees, individuals who have been granted withholding of removal; people awaiting adjudication in Immigration Court who have qualified for a work permit. These individuals have a right to work, but must obtain a work permit to do so.

Therefore, these individuals can receive unemployment benefits. So long as the work permit is valid, they would be able to be employed and therefore can obtain unemployment benefits.

Unfortunately, this also means that if an individual is out of status, even if the individual managed to hold a job despite not having a work permit, she will not be able to make a claim for unemployment because she does not have a legal right to work and could not work in the future.

2. Will receiving unemployment benefits prevent you from becoming a permanent resident or U.S. citizen? No.

In February 2020, this year, the present administration passed a new rule, stating that anyone who is classified as a “public charge” is inadmissible for certain immigration benefits. This includes individuals applying for permanent residence under a relative, or individuals attempting to enter the United States under an immigrant or nonimmigrant status. First of all, the public charge disqualification does not apply to permanent residents applying for citizenship.

Although this blog is not discussing all the ways someone can be classified a public charge, one often misunderstood condition is the use of public money. This can be in the form of Medicaid, food stamps, SNAP benefits, among others. However, what has been determined is that unemployment benefits are not classified as “public money” that would disqualify an individual as a “public charge”. Therefore, those individuals eligible to claim unemployment should do so. Unemployment benefits are not a public charge for immigration purposes.

3. Public Charge and COVID 19 medical care – Medical care under such circumstances is not a Public Charge

As stated above, typically use of services like Medicare would be considered in determining an individual’s inadmissibility as a “public charge”, however, USCIS has stated that any individuals who receiving testing, treatment and preventive care (including a vaccine if one becomes available) for COVID-19 will not be considered in the public charge test, even if the treatment is provided or paid for by one or more public benefits, such as Medicaid, for example. Therefore, medical care paid for by public funds is not a Public Charge where individuals can show medical care was related to COVID 19 testing, treatment, or medical care.

Can I get a covid-19 stimulus check if I'm undocumented?

By Jessica Suotmaa 0

On April 15, 2020, California Governor Newsom announced that undocumented adult immigrants will receive a $500 stimulus cash payment from the State. As previously discussed, many undocumented immigrants do not qualify for the federal CARES ACT stimulus check.  Undocumented immigrants also do not qualify for unemployment insurance benefits.  As a result, California will distribute $500 dollar stimulus checks, up to $1000 per household, to undocumented Californian immigrants.  This money will come from the state’s 75 million dollar disaster fund and supplemented by a 50 million dollar donation by philanthropists for a total of 125 million dollars.

The announcement states that the fund will begin accepting applications in May 2020, and approximately 150,000 undocumented immigrants will receive the cash payment.

It was not clear to us exactly how these 500 dollar cash payments will be distributed, but with some digging, we found a list of “relief funds” for undocumented immigrants. The list is in English, Spanish, and Chinese.  According to the list, there are national relief funds and local relief funds available to undocumented immigrants who meet the listed requirements. We are not sure at this time if these funds are one of the avenues for the California relief payments, but they may be worth checking out regardless.

If you have questions about California’s guidelines and regulations on shelter-in-place, essential work, staying safe, etc., you can refer to California’s Immigrant Guide.  The guide includes information on the public charge determination, which has been translated into several languages, including Chinese, Korean, and Tagalog.

Some key notes we identified from the California immigration guide include:

If you need COVID-19 testing but don’t have private health insurance…

“Even if you are undocumented and/or don’t have insurance, you can get necessary testing and treatment for COVID-19 through Medi-Cal emergency services, even at a local clinic.”

If you have Medi-Cal, but aren’t sure what’s covered…

“Emergency services are free for enrolled Medi-Cal beneficiaries which includes COVID-19 testing, evaluation and treatment services.”

If you don’t qualify for unemployment insurance benefits because you’re undocumented but you tested positive for COVID-19, are caring for a family member who is sick, and so forth…

“Undocumented immigrants may be eligible for State Disability Insurance (SDI) and Paid Family Leave.”

If you cannot afford to pay rent due to the COVID-19 pandemic…

“Under the Executive Order, you are still required to eventually make up rental payments you miss, but you will not be evicted for nonpayment of rent until at least June.

In order to qualify for the eviction protections, you must notify your landlord in writing within 7 days of your nonpayment that you cannot pay all or part of your rent due to COVID-19. For example, if your rent is due April 1st, then by April 8th.”

How has COVID-19 affected U.S. immigration? Are you a small business owner with questions on how to manage it during the pandemic? Do you have other questions regarding COVID-19 and how we can assist you? Contact us today. We’re here to help.

US Census 2020

By Jessica Suotmaa 0

You might think the US census, a survey of the living population, has nothing to do with you if you’re undocumented, or just not a citizen. You would be wrong.

The census is organized by the government government to survey current population by state. Citizens, permanent residents, long-term visitors, work visa recipients, and undocumented immigrants are encouraged to participate in the census. The reason is that the results of the survey determine federally funding for the state, as well as state representation in the federal government.

In an immigrant-heavy state like California, a large portion of the population may not be citizens, but they should still be counted in order for California to be properly represented. Otherwise California could end up being underrepresented in Congress.

Funding for federal sponsored programs for healthcare, education, childcare, and food subsidies are also based on census results.

So, if a government employee knocks on your door, or a census survey comes in the mail, be sure to answer the questions.  Answer honestly, and don’t worry about the data. The census bureau does not share information with ICE.  The census does not have a nationality or citizenship question so whether you are documented should not come up in the survey.

Do you have questions or concerns regarding the survey? Or perhaps your immigration status? Contact Lum Law Group to speak to an experienced immigration attorney

Who and What is exempt from the Public Charge rule

By Jessica Suotmaa 0

On Monday, February 24, 2020, the new United States Citizenship and Immigration Services (USCIS) Public Charge rule goes into effect. While we’ve written about it in-depth before, we would like to assure our readers which services and benefits are exempt from the rule, and who the rule does not affect. This article serves to clearly summarize all the public benefits you do not need to be worried about.

Let’s start with who needn’t be worried about the a Public Charge rule:

  1. Asylees and Refugees
  2. Victims of Trafficking
  3. Victims of Domestic Violence
  4. Anyone granted relief under the Cuban Adjustment Act, the Nicaraguan and Central American Relief Act and the Haitian Refugee Immigration Fairness Act

Also, please note that the Public Charge rule applies to individuals trying to enter the U.S , adjust status, or apply for permanent residence. It does not affect your green card renewal (unless you’re absent for 6 months or longer) or citizenship application (naturalization).

Holders of U-visas, T-visas, or those who have TPS, or Special Immigrant Juvenile Status also need not worry about the public charge rule affecting their visas.

Next, let’s look at which benefits are exempt from the rule:

  1. State or local health plans (e.g. Medi-Cal)
  2. Children’s Health Insurance Program (CHIP)
  3. Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
  4. School lunch programs
  5. Shelters
  6. Food banks

In other words, the Public Charge Rule looks at the age, health and income of the incoming immigrant and checks for the following public assistance programs:

  • Supplemental Nutrition Assistance Program (SNAP, EBT, Food Stamps)
  • Federal Public Housing Program or Section 8 Housing
  • Medicaid (except emergency services, children under 21 years of age, pregnant women, and new mothers)
  • Cash Assistance Programs

Any benefit or assistance program not listed above will not be counted towards the public charge. If you’re not sure though, ask us!

Immigration and the Internet

By Lum Law Group 0

Immigration and the Internet

We live in interesting times. Our current government appears to be stressing preventing people from abusing our immigration system over helping people to legitimately immigrate, or even visit. As such, people planning on coming to the United States, and visitors and green card holders here in the United States must be aware of their presence on the Internet.

In the latest news, several news outlets are reporting that Immigration and Customs Enforcement of the Department of Homeland Security has purchased marketing information in order to locate phone numbers and individuals whom it suspects are out of status. Here are a few of those reports:

https://www.wsj.com/articles/federal-agencies-use-cellphone-location-data-for-immigration-enforcement-11581078600

https://www.vox.com/recode/2020/2/7/21127911/ice-border-cellphone-data-tracking-department-homeland-security-immigration

Of course, those individuals here should follow U.S. laws regarding immigrant and visitor status. Here at Lum Law Group, with our over 50 years experience, we are doing our best to help individuals and companies here and abroad navigate these waters in these turbulent times to insure they are compliant with the current laws, and to understand their alternatives based on each individual’s circumstances, whether that arises in a family or business setting.

Entry into the US during coronavirus

By Lum Law Group 0

As most people know by now, the United States has issued a temporary travel ban on individuals entering the United States, which took effect yesterday (Sunday) at 5 pm. Any U.S. citizens and permanent residents who have been to the Hubei Province (which includes the city of Wuhan) face a 14-day quarantine on return. Any U.S. citizens and permanent residents who have been to China within the past 14 days from their return will be tested at the airport and are asked to isolate themselves for 14 days, subject to heightened monitoring. Foreign nationals who have traveled to China within the last 14 days will be barred entry into the United States, regardless of country of origin. The only exception for foreign nationals is immediate family of U.S. citizens and permanent residents who otherwise have a legal right to enter the United States.

Under U.S. Immigration law “Immediate relatives” are defined as spouses, parents and children under 21 of the U.S. citizen or permanent resident. Assuming this is what the U.S. Government means when it says “immediate family”, only these foreign nationals who have been to China in the last 14 days will be allowed entry in the United States on the conditions set forth above.

What this means is that wives and children under 21 and parents of U.S. citizens and permanent residents can still enter the U.S. under strict guidelines, the same as for citizens and permanent residents. However, they must still have a legal basis for entry, i.e., they have visas or travel documents allowing travel to the U.S.

An important side effect of this is that entering foreign nationals, whether permanent residents or people who can otherwise enter, should under no circumstances withhold information on their travels to China. Health concerns (which are paramount) aside, lying for obtaining an immigration benefit, in this case to avoid quarantine, could result in dire effects to future attempts to enter the United States and/or retain permanent resident status. It will not be worth the risk just to avoid heightened observation or quarantine for 14 days.

Telling your story to immigration

By Jessica Suotmaa 0

Storytelling might not be the first thing that comes to mind when planning your immigrant or non immigrant benefit application or petition, but it is worth considering.  The United States Citizenship & Immigration Services (USCIS) forms request a great number of facts while leaving little room for explanation. As such, many self-applicants may believe they should summarize their story into a short “blurb”.  We’re here to tell you this is not the case.

Regardless whether you’re trying to immigrate through family or asylum, petitioning for benefits based on hardship, or if you’re seeking nonimmigrant status via employment or investment, you should share your story.  Many of our clients submitted short summaries at the beginning, expecting the chance to expand and share their narrative later at the interview—only to find the interview is based on what was submitted. The interviewer will question new information that was not initially submitted as it suggests that you fabricated additional details to your story. This may not be true, but it’s cause for suspicion.

On the opposite spectrum, you have applicants and petitions who provide too much information, drowning the reviewing officer in data and evidence. How much time do you think a USCIS employee has to review and adjudicate on your application? It’s probably less than you’d think. Hence our suggestion to submit organized and clear submission packages. Not only is there limited time to review your submission, but it might be reviewed by several people, to varying extents.  Without a clear link, or narrative, to string your evidence together, your submission can be confusing at best; overwhelming at worst.

What immigration attorneys and paralegals do for you is they listen to understand your story, apply it to USCIS standards, request relevant evidence, draft your narrative for you, and organize the evidence to match your story.  The result is a clear and persuasive essay.  You can request to review this essay prior to submission, but it will become the “cover sheet” the attorney puts on his letterhead for your submission package. The coversheet is like the table of contents and introduction to your request, and is especially influential in long, complex cases, where the officer will exercise discretion.

If you’re not sure how your narrative can be supported, organized, and argued, don’t try to submit on your own. Don’t let your application become a question mark or headache for the reviewing officer. Hire an experienced immigration attorney to review, prepare, and organize your USCIS submission for increased clarity!

4 Common Mistakes On Immigration Applications and Petitions

By Jessica Suotmaa 0

Immigration clients often come to us with botched cases. Either they tried to do it themselves and failed, or they hired a less-than-reliable paralegal office that mishandled their case. Some mistakes are made even in our care. Here are the four most common immigration application/petition mistakes we hope you’ll avoid.

Submitting an incomplete or erroneous application/petition

Clients often rush through the forms, and by mistake leave out a detail from a decade or two ago. Our office, like any office, can only help you ensure your form is filled out completely and matches the information you provided us. We do not know if you had a DUI 20 years ago. We do not know if you have a criminal record that was expunged 15 years ago. These are facts that we may be able to verify and obtain records to support your case, but without a client request we would not think to look for it.

It is the client’s responsibility to think through their past and ensure the forms reflect complete and accurate data.

Failing to pay the complete and exact fee

Often clients will write a check for the wrong amount, such as in the case when the application fee has recently changed. Sometimes clients fail to account for biometrics fees (finger prints for background check), and other times they expect to pay fees separately when they should all be submitted at once.  We have even clients whose applications were significantly delayed because they did not have enough funds in their bank account when the funds were cashed. Don’t be like them; check the fees and use a credit card, money order, or savings account to pay your immigration application or petition fees.

Failing to submit sufficient evidence

If only we had a nickel for every client who hired us after they received their Request for Evidence (RFE). It’s very common for clients to follow generic checklists they found online, or the advice of a friend or an acquaintance who did it themselves without considering their individual cases. Based on your individual circumstances, your application or petition may require different supporting documents or additional evidence.  Immigration used to always request that information from you after you file using an RFE. Nowadays it is not guaranteed.

Failing to respond to a request for evidence or additional information by the deadline

Clients can still receive a request for additional documentation at the interview. An immigration officer may determine after speaking with you that they need more data. They will set a deadline and you will have to produce that information either in person or by mail before the deadline.  If you miss the deadline, your case will likely be denied.

While everyone makes mistakes, don’t let your mistake delay your immigrant or non-immigrant status.  Talk to an experienced immigration today about how we can help you avoid delay!

If I marry a US Citizen, will I avoid deportation?

By Jessica Suotmaa 0

Many of our non-status clients believe marrying a U.S. citizen will solve their immigration problems.  Undocumented clients will either jump into a marriage head first for a chance at a marriage green card, or they’d wait until they’re detained to marry their beloved.  Then, they’ll come to us and expect the marriage certificate to solve all of their problems. We’re here to tell you it’s not as simple as that; if you’re an undocumented immigrant married to a U.S. citizen, you can still be deported.

Unfortunately, qualifying for a marriage-based green card requires more than just a marriage certificate proving marriage to a U.S. Citizen.

Here are the four other questions to ask yourself if you’re considering a marriage-based green card:

1. Is your marriage legitimate?

Not only does your marriage to a U.S. citizen have to be genuine, but you also need to be able to prove it.

Many clients believe a few photos and a lovey dicey appearance will suffice at the interview, but it’s more complicated than your romance narrative. For immigration purposes you need to show proof of joint residence and shared finances in addition to documents showing your love.

A good immigration lawyer can review your case and existing documents or help you prepare your petition and application.

2. Did you enter the U.S. legally?

Although after marriage you’re now an “immediate relative of a U.S. citizen”, how you entered the U.S. still matters. In order to adjust your status after your Petition for Alien Relative (Form I-130) is granted, you have to be eligible.  Part of being eligible is having entered the U.S. legally (e.g., with a valid visa) and being in status at the time of adjustment.

If you did not enter the U.S. legally, are undocumented, or have overstayed your allotted time, you may be ineligible to obtain permanent residence. Consult an experienced immigration attorney to see if you are banned from re-entry and if you qualify for any ineligibility waivers.

3. Do you and your spouse have enough money?

To obtain a green card, the applicant must be financially secure and/or sponsored by a relative or other U.S. Citizen or Legal Permanent Resident. To qualify for adjustment of status, you’ll have to show pay stubs, tax returns, and other documents proving financial independence.

Applicants are now required to file an additional form, I-944 Declaration of Self-Sufficiency which requires even more detailed financial information to prove you won’t require government assistance in the future.

4. Are you healthy?

All adjustment of status applicants have to undergo a medical examination to prove they are in good health. You will also be required to see an immigration-approved doctor for a full physical. You’ll be required to have received certain vaccinations and even prove you’ll have health insurance to cover any medical issues you may have.

See our article on Public Charge and the Healthcare Ban for more information.

If you’re concerned about your answers to any of the above questions, or if you just want to be certain, give us a call and we’ll review your situation to see how we can help you in your marriage-based adjustment.

7 Most Frequently Asked Questions about the EB-5 Visa

By Jessica Suotmaa 0

With the upcoming EB-5 investor visa changes underway, many clients have been asking about the EB-5 visa.  If you’re interested, we encourage you to apply for the EB-5 investor program before November 21, 2019. By applying before the deadline, you can take advantage of current investment thresholds ($1 million, $500,000). If you reach the end of this list and still have questions, do reach out to us as soon as possible!

1. Who can apply for the EB-5 investment visa?

Unlike family-based or employment-visas, the EB-5 investor visa is available to anyone with the funds to invest. An EB-5 investor does not need special relations, education, or skill set—only money.

 

2. How much money do I need to apply for the EB-5 investor visa?

Starting November 21, 2019, the minimum investment is 1.8 million dollars—or 900,000 dollars for targeted employment areas. The EB-5 petition fee is $3,675.

 

3. Can I use retained earnings as part of my initial investment?

USCIS does not consider the company’s retained earnings as part of the your investment.

 

4. Can a promissory note be used as investment capital?

If the promissory note is unsecured, then no it cannot be used as part of your investment. However, a secured promissory note can be used as part of your investment capital as long as you can show that the capital securing the note belongs to you.

 

5. Can someone gift me the funds for my EB-5 investment?

In order for the gift to be counted towards your investment, you would have to pay all applicable gift taxes. In addition, you’d have to show proof of transaction and demonstrate that the funds will not be returned to the gifted after you’re granted your EB-5 visa.

 

6. Do funds from a joint bank account qualify for my EB-5 investment?

As long as the joint bank account is yours and meets general joint bank account requirements, then yes.  You would have to show proof the account is held between you and your spouse, and it is under your name.

 

7. How long does it take for an EB-5 investor to obtain a US green card (permanent residence)?

The answer depends on the applicant’s country of origin. See the USCIS visa bulletin for a specific timeframe as it applies to your country of origin.

Generally, it takes about 1.5-2 years to receive your conditional green card. This time estimate includes the initial EB-5 petition process, which can take about six months. Once you have your I-526 approval, you would apply for an adjustment of status (if in the US), or an immigrant visa (if abroad).

 

Do you have additional questions about the EB-5 investor visa program? Comment them below or send us a message!

Healthcare Ban

By Jessica Suotmaa 0

Starting November 3rd, 2019, the new “Healthcare Ban” will affect incoming lawful immigrants.  This ban is similar to the travel ban in that the same Immigration Nationality Act section that upheld the travel ban also serves as the basis for the Healthcare Ban.

The President announced that the influx of incoming immigrants without access to private health insurance are a burden to America.  Since the US healthcare system is already in distress, we are banning immigrants without private insurance from entering the US.

Most importantly, any immigrant who cannot afford private insurance within 30 days of entry will not be issued a visa.  The lack of private healthcare can also impact an immigrant’s ability to obtain permanent residence.

What counts as “private health insurance”?

Private health insurance providers are non-subsidized private health plans that can be purchased through your employer (employer-subsidized) or from the insurance company directly (non-subsidized).  Immigrants who qualify for publicly subsidized health insurance plans do not qualify. Any health insurance bought with Covered California, for example, would not qualify since they’re taxpayer-subsidized.

Migration Policy reported 34 percent of lawful immigrants do not have health insurance while another 31 percent rely on publicly funded or subsidized health insurance, meaning the new Healthcare Ban can severely reduce lawful immigration.

Note: Under the Public Charge regulation, Medicare recipients could be denied immigration benefits.

How much medical coverage does the insurance have to cover?

The announcement states the health insurance policy should cover to a reasonable degree, which we can only assume means it depends on your health condition.  We can safely guess this from the Public Charge guidelines, but we won’t know until further guidance is released.

How soon do I have to have health insurance coverage?

Incoming lawful immigrants would have to be able to obtain private health insurance within 30 days of entrance. Not only that, but they would have to be able to prove that they can afford to purchase health insurance within the next 30 days.

Migration Policy estimates the new Healthcare Ban will reduce legal immigration by two-thirds.

Who is excluded from the Healthcare Ban?

Lawful permanent residents, refugees, asylum seekers, and children will not be impacted by the Healthcare Ban.

What if I’m staying short-term and I don’t want to purchase health insurance?

The announcement states that if you can prove that you can afford reasonable future healthcare costs, then you do not necessarily need to purchase health insurance.  What this may mean on a case-by-case situation we do not know.

 

If you are concerned about how the Healthcare Ban may affect your loved ones, including spouses, parents, and adult children of U.S. citizens, contact Lum Law Group today!

 

Don’t overlook the truth when you talk to an immigration officer

By Lum Law Group 0

Always tell the truth to an immigration officer. It seems like a simple rule. But sometimes for whatever reason, someone appearing for an immigration officer gets scared. “If I tell them the truth, then bad things will happen.” There have been situations where clients were truthful, but neglected a fact in an area that they thought would be unimportant. Don’t make that mistake.

Although it is true that if an applicant has been convicted of a criminal offense, it may bar the applicant from entering or remaining in the U.S., but lying to an immigration officer is considered fraud to get an immigration benefit will bar the applicant, and will be a red flag that makes any future entry difficult or impossible. But it’s not just the important facts, but basic facts that an applicant might feel doesn’t matter. For example, not providing a list of any other names you’ve used in the past. It may not matter for your visitor’s visa to not include these items. It may, however, impact a later application for a permanent resident card. Be safe and tell the truth.

If you have questions about your situation, then consult with an experienced immigration attorney before you ever submit anything to immigration that will be part of your permanent record.