IMMIGRATION: Red flags for the green card

LAST week, the US Department of Homeland Security published a final rule on why and how a green card applicant’s use of public benefits results in the

denial of an immigrant visa application or adjustment of status.

The green card is the document that an immigrant visa applicant receives after being admitted into the US with a valid immigrant visa, usually through a family-based petition or employment-based sponsorship.

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A tourist, student or work visa holder in the US may be issued a green card after successfully applying for adjustment of status — from the nonimmigrant category to that of a lawful permanent resident.

Whether applying for a visa at a consular post or seeking adjustment of status in the US, the green card applicant would have to prove eligibility and admissibility.

The rule was published in the Federal Register on Aug.14, 2019 after the DHS received, reviewed and released the final rule.

The rule takes effect on Oct. 13, 2019.

All immigrant visa applicants and those applying for adjustment of status shall be covered by this public charge final rule.

This rule redefines the term “public charge” to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The term “public benefit” in turn has been determined to include cash benefits for income maintenance, SNAP (supplemental nutrition assistance program), most forms of Medicaid, Section 8 housing assistance under the Housing Choice Voucher (HCV) program, Section 8 project-based rental assistance, and certain other forms of subsidized housing. Certain active duty military members and their families have been exempted.

 

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Visa application landmines
Individuals with approved family or employment-based petitions must complete the form DS 260 immigrant visa and alien registration application as part of the visa application process with the National Visa Center (NVC).

The DS 260 form reflects the policy thrusts of the administration. The current form includes several questions that would determine whether an immigrant visa would be issued or refused.

The public charge rule has been part of the form for decades — under the previous name as DS 230 — especially after the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. It is codified under Section 212(a)(4) of the Immigration and Nationality Act.

While this specific section has been in the books, the manner by which an immigration or a consular officer would decide is new. Throughout the rule, the alien referred to is the applicant for permanent residency in or outside the US.

Most immigrant visa applicants have not set foot in the US and would not have applied for public benefits. Those in the US in lawful or unlawful status, on the other hand, would be more exposed to and affected by the final rule.

 

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Feliciano,for example, was issued a tourist visa in 2006. Left behind were his wife Letty and three children, all minor at the time: Tony, 19, Maricar, 17 and Felizette 15.

Feliciano divorced Letty, and remarried. His US citizen wife, Sandy, petitioned him. On April 8, 2008, Feliciano filed a petition for all his children after getting his green card. At the time, they were still minors under the F2A category — minor children of a green card holder.

Aware of the education and living expenses that they would have to face in the US — not to mention being with a stepmother — Tony, Maricar and Felizette decided to pursue their studies in the Philippines.

In 2010,Tony and Maricar turned 21. Their preference category changed from F2A to F2B (over 21 unmarried son/daughter of a lawful permanent resident). Their priority dates remained the same. But they would have to wait longer under the changed F2B category. In June 2010, the cut-off date for F2B was March 8, 1999. Visas were not yet available.

Only Felizette remained as an F2A beneficiary. She was still below 21 years old. She was also pregnant by a married OFW who, after finding out that she was carrying a child, left hastily to renew his contract in the Middle East.

Devastated, Feliciano paid a travel agent to help Felizette get a US visa. She applied under a different name. Lady Luck smiled and Felizette got a single entry annotated visa under a different name. She initially stayed with Feliciano and her stepmom. With a social worker friend, Sandy was able to get Felizette medical healthcare coverage. Felizette gave birth to a baby girl who acquired US citizenship by birth. She named her Angela.

 

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In July 2010, the priority date for F2A visa applicants from the Philippines became current. Fearful of being found out for having entered under a fraudulent name, Felizette did not apply for adjustment of status. She remained an undocumented alien with a documented US citizen baby girl, working as a caregiver in a nursing home. Charlie, a widower resident twice her age, offered to help Felizette with marriage. She refused but continued to be Charlie’s caregiver.

Felizette has two options to apply for a green card: pursue her new F2B visa category or accept the decent marriage proposal of Charlie.

If she gets married, Felizette’s F2B petition by her father would be revoked. However, she would be able to apply for adjustment of status as the spouse of a US citizen. In both cases, Felizette would still be refused her green card application on at least three counts: having committed fraud for entering the US under a different name; for receiving public benefits; and inability of the US citizen widower petitioner to submit an affidavit of support document.

The new, final rule on public charge allows applicants to claim positive or negative factors. Felizette’s age — between 18 and 61 is on the positive side. So is having a job and reasonable prospect of future employment.

Receipt of public benefits and inability to present the financial ability of the US citizen husband (widower-resident of a nursing home) weigh heavier on the negative side.

 

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Felizettte had limited contact in the outside world and remained in her comfort zone by choice.

Angela continued to receive her benefits as a US citizen child. She was also enrolled in a public school. Felizette had been a live-in caregiver with free room and board. Angela lived with her in the nursing home. Charlie helps out with her homework and they celebrate US public holidays together, including Thanksgiving and Christmas.

Charlie was the only father figure for Angela. Felizette is now contemplating accepting Charlie’s proposal of marriage.

But the vow of President Donald Trump and the Republican party to get rid of illegal immigrants, reduce legal migration in half, stop the chain migration cycle make Felizette pause and consider..

Last week, Acting Director of the US Citizenship and Immigration Services Ken Cuccinelli emphasized his intention to enforce the new public charge rule.

Cuccinelli said that until Aug. 14, 2019, there has never been specific congressional action to address the public charge issue. The decision to grant the change of status and issue green cards remained under the discretion of a USCIS adjudication officer who has the sole authority to decide whether a green card applicant is inadmissible as someone who is more likely than not to be dependent on the government based on present and prospective determination.

The prospective determination is based on “the totality of circumstances by weighing all factors that are relevant to whether the alien is more likely than not at any time in the future to receive one or more public benefits, for more than 12 months in the aggregate within any 36-month period.”

The minimum factors to consider are the alien’s age; health; family status; education and skills; and assets, resources and financial status.

Cuccinelli said that the inscription on the base of the Statue of Liberty — welcoming immigrants — must change.

 

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Appearing on National Public Radio, Cuccinelli answered a question whether the portion of Emma Lazarus’ The New Colossus, (“Give me your tired, your poor”) etched onto a plaque at the base of the statue are still part of the American Dream.

“They certainly are. ‘Give me your tired and your poor who can stand on their own two feet and who will not become a public charge,.’”

The current inscription applied to the poor, uneducated, uninsured huddled masses from Europe yearning to breathe free — including the grandparents of President Trump from Germany and the Italian grandparents of the acting USCIS chief.

According to the family tree on ancestry.com, “Cuccinelli’s great-grandfather Dominic Cuccinelli was born in 1875 in the south of the newly formed nation of Italy and came to the United States in 1896. On his 1930 census form, Dominic, then a 54-year-old US citizen, stated that he was a laborer and homeowner in Hoboken, New Jersey. At the time, the census gauged Americans’ wealth and status by asking whether they owned a radio; Dominic did not.”

 

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Dominic would not have been allowed entry into the US and Kevin Cuccinelli would not have been named acting director of the agency that allows or refuses immigrants from coming to America.

Felizette is not from Europe. She fits the bill of an unwanted, undocumented, illegal alien and prospective candidate to be government dependent.

She is caught in the midst of an anti-immigrant crusade personified by the current White House occupant catering to his supporters’ persecuted feeling of being invaded and displaced by immigrants.

Cucinelli is simply echoing the Republicans’ cry to change the inscription on the base of the Lady Liberty statue to please their base.

The acting USCIS chief was given this authority by a President acting on his guts as a stable genius.

Such is the final rule to take effect on Oct. 13, 2019, a Sunday.

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