COLUMN: OPINION ON IMMIGRATION- What the (f)

EACH country has its own set of laws and regulations identifying who may be admitted either as immigrants (permanent residents) or nonimmigrants (temporary visitors).

The United States has the Immigration and Nationality Act of 1965 which replaced the Act of 1952 and abolished the earlier quota system based on national origin.

The 1965 Act defines who may be admitted or refused entry into the US – and we shall get to the (f) part later.

Australia has the Migration Act of 1958, the complete title of which is “An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.”

The 1958 Act remained virtually unchanged even with certain amendments in 1966 requiring “decimalization and identity documents of crew members of foreign vessels,” and in December 2014 when visa applicants were required to undergo character tests.

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Since then the Migration Act underwent modifications only through ministerial decree for matters related to visas and migration; the Minister of Immigration, currently David Coleman, holds the responsibility or ministerial portfolio.

Canada’s Minister of Immigration, Refugee and Citizenship is Ahmed Hussen (in charge of implementing the Immigration and Refugee Protection Act) whose counterpart in New Zealand is Iain Lees-Galloway, the guardian and implementor of the Immigration Act 2009, New Zealand’s fundamental source of immigration law.

The UK, mirroring the Brexit turmoil has a new immigration minister—Caroline Nokes—who was appointed Minister of State for Immigration on Jan. 8, 2018. There were four other members of the parliament who held the post for just a year each since 2014.

The ministers or secretary (in the case of the United States) are part of the Executive Department, one of three co-equal branches of government – the other two being the Legislative and the Judiciary.

Laws are by nature legislated. The Executive branch implements the laws through regulations issued by the Department of Homeland Security through the three main agencies – Customs and Border Protection, Immigration and Customs Enforcement and the US Citizenship and Immigration Services

Even if a current President of the United States wants to prevent foreign nationals from entering the US, he or she cannot single-handedly change the applicable laws.

Given the fact that the Democrats now hold the majority in the House of Representatives, President Donald J. Trump and a Republican majority in the Senate would find it extremely difficult to navigate the legislative waters and change, for example, the total number of immigrant visas to be issued or the family-sponsored or employment-based visa categories.

The Executive Branch, however, could make it difficult for applicants to get their immigrant or nonimmigrant visas through executive orders (EOs) or presidential proclamations (PPs).

President Trump’s EO 13780 of March 6, 2017, for instance, stressed the current US policy “to protect its citizens from terrorist attacks and other public-safety threats” that may be from immigrant and nonimmigrant visa applicants seeking entry into the United States.

The Executive Order’s legal anchor is Section 212 (f)of the Immigration and Nationality Act which states that “whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

What got the attention of advocacy groups and immigrant advocates is equating public charge inadmissibility to that of a national security threat ineligibility: applicants without sufficient financial resources are placed in the same category as terrorists.

The intent to keep out applicants who are perceived to become public charges (those who could or may receive benefits from the federal, state or local governments) became the rule when the Notice of Proposed Rulemaking was published on Oct. 10, 2018.

The rules became final after elicitig public reaction within the required 60-day comment period. As currently published in the USCIS’ Public Charge Inadmissibility page, acceptance of the following types of assistance may lead to the determination that the individual (visa applicant at a consular post or an applicant seeking to adjust status in the US), is likely to become a public charge:

Supplemental Security Income (SSI) under Title XVI of Social Security Act Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act – the successor to the AFDC program) State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs) Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution). (Note: costs of incarceration for prison are not considered for public charge determinations.)

The basic requirement to avoid being refused on the public charge issue is through the submission of an affidavit of support by the petitioner/sponsor. If the petitioner does not have income or insufficient financial resources, the sponsor may submit the affidavit of support of a joint sponsor.

The good news comes from a recently published Q&A from a meeting between the State Department and the American Immigration Lawyers Association (courtesy of lawyer Matthey Insoo Oh) which clarifies the following:

A joint sponsor does not have to be related to the petitioning sponsor or the intending

immigrant. Consular officers must consider an applicant’s age, health, family status,

assets, resources, and financial status, and education and skills when making a public charge determination.

A joint sponsor can be a friend or third party who is not necessarily financially connected to the sponsor’s household. However, such a joint sponsor must still meet the citizenship, residence, age, domicile, and household income requirements

Petitioner’s domicile

Even if affidavits of support have been submitted with the required documents, a visa application may still be refused if the petitioner is no longer residing or domiciled in the US.

Domicile as defined in the State Department’s website “is the place where a sponsor has his or her principal “residence” with the intention to maintain that residence for the foreseeable future.”

Some petitioners from the Philippines have obtained dual-citizenship status to be able to stay in the country with the visa applicant for more than a year. In such cases, the petitioner’s domicile could be in question.

This concern is exacerbated by the “confusing language” of the State Department’s website on the issue:

“[i]f the sponsor establishes US domicile, he or she must return to the US to live before the sponsored immigrant may enter the United States. The sponsored immigrant must enter the United States with or after the sponsor.” (Emphasis supplied)

Accordingly, the State Department representatives issued the following clarification:

“A petitioner-sponsor may meet the domicile requirement by establishing that he or she intends in good faith to establish his or her domicile in the United States no later than the date of the intending immigrant’s admission. The sponsor does not have to precede the applicant to the United States but, if he or she does not do so, he or she must arrive in the United States concurrently with the applicant.

Moral of the story?

If a proposed rule is published for public comments, it is best to make your position known. Learn the ABCs of responsible commenting – and do not stop at F.

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