Labor Immigration Law

The concept of a “public charge” has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation.  The idea is that the U.S. taxpayer should not support new immigrants, at least for an initial period of their admission into the U.S.   An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.   As a result, there is some confusion as to what kind of benefits do constitute a public charge and what kind of benefits do not.   With USCIS guidance, we seek to provide guidance.

Public Charge – Definition

USCIS defines “public charge” as

an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs.   Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.   Each determination is made on a case-by-case basis in the context of the totality of the circumstances.  See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the USCIS guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
• Job training programs
• In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non-cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
• Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.   Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

Conclusion

As described above, a public charge can have very serious consequences on one’s immigration process.  As a result, we caution that the information provided above is based on general USCIS guidance which can vary based on individual case facts.   We urge our clients and readers to conduct extensive research (and/or consult us) before accepting benefits which may be deemed to be public charge.

The Pew Hispanic Center has released its most recent report on the unauthorized immigrant population.  As of March 2010, there were an estimated 11.2 unauthorized immigrants in the U.S., a number unchanged from the year prior.   This lack of change follows two years of decline from a high of an estimated 12 million in 2007.  According to the report, unauthorized immigrants were 3.7% of the nation’s population in 2010 and 5.2% of the labor force (down from the peak of 8.4% in 2007).

Additional key points of the report include:

• The number of unauthorized immigrants decreased from 2007 to 2010 in Colorado, Florida, New York and Virginia. The combined population in three contiguous Mountain West states-Arizona, Nevada and Utah-also declined.
• In contrast to the national trend, the combined unauthorized immigrant population in three contiguous West South Central states-Louisiana, Oklahoma and Texas-grew from 2007 to 2010.
• Although the number of unauthorized immigrants in the U.S. is below 2007 levels, it has tripled since 1990, when it was 3.5 million and grown by a third since 2000, when it was 8.4 million.

The complete report is available online in PDF format.

The Government Accountability Office (GAO) has published a January 2011 report on the H-1B program.    The GAO has produced a a comprehensive, 118-page, report which is intended to provide guidance to Congress with respect to amending or tweaking parts of the H-1B program.

The conclusion of the report is that certain reforms are needed for the H-1B program in order to minimize the risks and costs of the current program.    The main conclusions of the report are as follows.

Most interviewed companies said the H-1B cap and program created costs, but were not factors in their decisions to move R&D overseas.   GAO reports that employers generally indicate that the H-1B program and the cap adds additional costs; however, most large companies, if faced with H-1B cap shortage, find ways to employ talented foreign workers in the U.S., albeit at a higher cost.   On the other hand, small firms were more likely to fill their positions with different candidates, which they said resulted in delays and sometimes economic losses, particularly for firms in rapidly changing technology fields. Interviewed employers also cited costs due to the H-1B lottery process employed when the cap is reached—noting that it does not allow them to prioritize their candidates if they have submitted more than one petition or to make timely hires in response to business needs.

Agency data and systems hinder tracking the cap and H-1B workers over time. The total number of H-1B workers in the U.S. at any one time—and information about the length of their stay—is unknown, because (1) data systems among the various agencies that process such individuals are not linked so individuals cannot be readily tracked, and (2) H-1B workers are not assigned a unique identifier that would allow for tracking them over time—particularly if and when their visa status changes. Although information on the total H-1B workforce is lacking, data on approved petitions show that, since 2000, most people that were approved to be H-1B workers were born in China or India, were hired for technology positions, and increasingly held advanced degrees. System limitations also hinder the Department of Homeland Security from knowing precisely when and whether the annual cap has been reached each year, although this problem might be remedied through the agency’s data-modernization plan. Finally, data limitations, along with complex economic relationships, hinder our ability to estimate the potential impact raising the cap would have on U.S. worker wages and employment.

Staffing (Consulting) Companies Model and Employ of H-1B Workers Weakens Protections for U.S. Workers.   Elements of the H-1B program that could serve as worker protections—such as the requirement to pay prevailing wages, the visa’s temporary status, and the cap itself—are weakened by several factors. First, program oversight is fragmented and restricted. For example, the Department of Labor’s review of H-1B applications from employers is cursory and limited by law to only looking for missing information and obvious inaccuracies. Yet a recent Department of Homeland Security study reported that 21 percent of the H-1B petitions they examined involved fraud or technical violations.

Second, the H-1B program lacks a legal provision for holding employers accountable to program requirements when they obtain H-1B workers through a staffing company (see fig. 2). Officials from the Department of Labor’s investigative office reported receiving the bulk of their complaints from H-1B workers contracted by staffing companies.

Third, statutory changes made to the H-1B program have, in combination and in effect, increased the pool of H-1B workers beyond the cap and lowered the bar for eligibility. Specifically, these changes have increased the available exemptions to the cap; offered unlimited extensions on the visa while holders apply for permanent residency; and broadened the job and skill categories for eligibility. Regarding the latter, over 50 percent of employers requesting H-1B workers between June 2009 and July 2010 categorized their prospective H-1B workers as receiving entry-level wages, although we cannot tell whether this trend reflects lower skill levels or other factors.

Conclusion.   The GAO report concludes that the H-1B program, as currently structured, may not be used to its full potential and may be detrimental in some cases. Although executive agencies overseeing the program can take steps to improve tracking, administration, and enforcement, the data presented in the GAO raises important questions, including the adequacy of the qualifications of foreign workers the U.S. admits through the program, the appropriateness of H-1B hiring by staffing companies, and the role of the program with respect to permanent residency.

U.S. Citizenship and Immigration Service (“USCIS”) has proposed a change to the relevant regulations requiring all employers who wish to file for an initial H-1B cap petition to preregister with USCIS.    The proposal is for an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification.  In the future, other classifications may be added as needed.

The drive behind this proposed rule change is that the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation.  As a result, the preregistration system would allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions.  It would also allow employers to electronically register for consideration of available H-1B cap numbers eliminating the need to prepare and file H-1B petitions without any certainty that an H-1B cap number will ultimately be allocated to the beneficiary named on that petition.

Benefits to USCIS and Employers

To ensure a fair and orderly distribution of H-1B cap numbers, USCIS has evaluated its current random selection process, and has found that when it receives a significant number of H-1B petitions within the first few days of the H-1B filing period, it is extremely difficult to handle the volume of petitions received in advance of the H-1B random selection process. Further, the current petition process of preparing and mailing H-1B petitions, with the required filing fee, can be burdensome and costly for employers, if the petition is returned because the cap was reached and the petition was not selected in the random selection process. Accordingly, this rule proposes to implement a new process to allow U.S. employers to electronically register for consideration of available H-1B cap numbers without having to first prepare and submit the petition.

The new mandatory, Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers. The new system will also relieve a significant administrative burden and expense from USCIS. This rule will reduce costs for some employers and increase them for others. For employers that are not allocated a cap number and therefore do not ultimately file a petition, there will be a significant cost savings. Employers that are allocated a cap number and ultimately file a petition will experience the new and additional cost of filing the registration. Additionally, USCIS will incur additional costs to implement and maintain the registration system. USCIS has weighed the benefits and costs associated with this rule and determined that the benefits to society outweigh the costs.

Timeline of Proposal

Please note that this is only a proposal at this point.  The proposed rule change is subject to a comment period until March 30, 2011.  At this point, it is not certain whether the rule will be implemented, and if so, when the system would become operational and effective.  We will continue monitoring developments on this subject and report to our readers and clients as early in advance as possible to allow H-1B employers to adjust their processes accordingly to match any new USCIS registration requirements.

It is normal that during recession, western economies are not so attractive to any kind of immigration as they are during boom times.  The U.S. is no exception.  A recent report by the Brookings Institution has confirmed that the number of immigrants in the U.S. was estimated to have risen by about a half a million in the year that ended in 2009, a jump over the year prior when inbound immigration almost stopped during the recession.

According to the report,

The foreign-born population in the United States increased by 4.5 million in the decade ending in 1980. In the decade ending in 2000, it increased by 11.3 million, bringing the foreign-born population to about 13 percent of the total. In the early 20th century, after the last big wave of immigration to the United States, immigrants had reached 15 percent of the population.

In 2008, immigration came to a standstill, the first big slowdown in decades of surging numbers, according to the report, which was based on estimates by the Census Bureau. The foreign-born population increased by 7.4 million between 2000 and 2009.

Naturally, the geographic impact of the recession can explain the impact in terms of immigration.  The biggest immigration losses were in cities that had boomed in recent years, particularly in the housing industry, including Phoenix, Riverside and San Bernardino in California and Tampa, Fla.

Cities where the recession had less of an effect, including Austin, Tex., Houston, Raleigh, N.C., and Seattle, continued to gain immigrants.  The biggest increases came in smaller metropolitan areas that had little or no immigrant populations before.  Among them were Jackson, Miss., whose foreign-born population grew by half in the two years ending in 2009, Birmingham, Ala., where immigrants increased by a quarter, and Worcester, Mass., and Omaha, which both experienced growth of about 20 percent, according to the report.

While the report does not present any dramatic revelations, it confirms that the U.S. is not as desirable immigration destination during recessions as it is during boom times.  As the U.S. economy picks up steam again, a renewed interest and flow of immigrants is expected.

In the last hours before the mid-term elections in the United States, it is possible to draw on the conclusions of the political experts that the Republicans are likely to seize control of the House of Representatives in the U.S. Congress.

How is this related to immigration?  Our office has been consistently asked to provide thoughts on the political mood here in Washington for an immigration reform.  We have written in the past about certain proposals which, as of today, remain just that – proposals.   Over the last few months the political climate in Washington, DC has not permitted the Obama administration to focus and tackle one of its stated priorities – comprehensive immigration reform.  We do not expect anything to happen with respect to a comprehensive immigration reform even after a new Congress takes office.

However, with a new (more business-oriented) party in control of the House, there may be some chance of  a skilled immigration reform.  Since most of our individual and corporate clients and readers are keenly interested in skilled U.S. immigration, we thought that we would share some thoughts on the political climate and a recent article by the Economist about the possibility of a skilled immigration reform.

According to the Economist article, which cites research by the Hamilton Project (a liberal-leaning group), the number of foreign workers in America has been declining for some time and this decline might reflect America’s diminished appeal to the world’s most sought-after workers, as well as brightening prospects in their own countries.   However, as the U.S. comes out of recession over the next months (hopefully) or year, the demand of U.S. highly skilled visas is likely to increase.  The problem standing in front of any immigration reform is illegal immigration.

Legislators from both parties have at various times advanced proposals that would smooth the way for skilled migrants, but they have usually foundered on the more intractable problem of dealing with illegal immigration. “These two issues can and should be separate,” says Michael Greenstone of the Hamilton Project. “We are giving up economic growth by putting the two issues together.”

The reality is that some proponents of immigration reform are afraid to separate skilled immigration from comprehensive immigration reform because the push for comprehensive immigration can lose momentum (and congressional support) very quickly if the skilled immigration is tackled independently.

A Republican takeover of the House might increase the chance of a bill on skilled immigration.  That, however, is not the Republicans’ priority.  According to the Economist, Lamar Smith, the Republican who would probably become chairman of the House judiciary committee, is more focused on deporting illegal immigrants and strengthening the border than on proposing skilled immigration solutions.  The business-friendly republicans may still push for skilled immigration bills and if President Obama is to accomplish anything in the next Congress, he needs to find common ground with Republicans on something.

Social networks such as Facebook, MySpace and LinkedIn are great and very popluar tools for sharing information with friends, relatives and colleagues.  Their popularity is, partially, due to the fact that people are free to disclose personal information to their groups of friends, family or colleagues.

Many privacy advocates are urging a more careful use of such social networking sites because of the danger of identity theft and unintended consequences of “oversharing.”   One such unintended consequence may be that it seems to be USCIS’ official policy to check such social networking sites for information which may indicate fraud.  A recently obtained memorandum from USCIS suggests that its FDNS (Office of Fraud Detection and National Security) is encouraged to seek information about a target of their investigation on social networking sites.  FDNS may run searches on various social networks and obtain information on their subject which they deem “public.”

From the memo,

“Narcissistic tendencies in many people fuels a need to have a large group of “friends” link to their pages and many of these people accept cyber-friends that they don’t even know. This provides an excellent vantage point for FDNS to observe the daily life of beneficiaries and petitioners who are suspected of fraudulent activities.”

It should also be noted that often adjudicators of USCIS petitions resort to using “public records” to adjudicate or to seek relevant information to a petition.   It is not clear whether adjudicators are allowed or encouraged to seek information on social networking sites; however, if USCIS, in its FDNS memo deems social networking information as “public record,” then it is possible that such information may be also used by adjudicators (and not only by FDNS) when reviewing benefit petitions and applications.

We have previously written extensively about the January 2010 Neufeld Memorandum and the lawsuit filed earlier this year challenging its validity.   This lawsuit has been of great interest to most of our clients as the Neufeld memorandum created some new requirements applicable not only to IT consulting companies but to most, if not all, H-1B employers.

After an exchange of arguments about dismissal of the suit in July, the District Court for the District of Columbia sided with the government and dismissed the lawsuit.   The court ruled that the Neufeld Memo did not constitute “final agency action” that might be subject to judicial review.

Background of the Neufeld Memo Lawsuit

The complaint was filed earlier this year by a coalition of staffing companies and representative trade associations. USCIS was asked to stop temporarily and permanently from applying the Neufeld Memo in H-1B adjudications.

The complaint alleged that the Neufeld Memo abruptly altered long-standing agency policy which has permitted companies from placing H-1B workers at third-party job sites.  The plaintiffs claimed that the Neufeld Memo constitutes a legislative regulation because it sets forth new binding standards that prevent employers that place employees at third-party worksites, but which otherwise meet the regulatory definition, from sponsoring H-1B nonimmigrants.

Specifically, the complaint alleged that the new policy (i) is contrary to existing law and regulations, (ii) is arbitrary and capricious because the government failed to articulate a policy justification, (iii) violates the Administrative Procedure Act notice-and-comment requirements, and (iv) should have been issued following a certification under the Regulatory Flexibility Act (which requires regulators to consider the potential impact of regulations on small business).

The Federal District Court Dismissal of the Broadgate Case

Judge Kessler dismissed the case because the Neufeld Memo is not legislative rule.  The court ruled that the Memo merely provides “interpretive guidelines” for the implementation of the relevant regulations and does not providing binding instructions to USCIS adjudicators in their review of H-1B petitions.

Judge Kessler determined that “the evidence demonstrates that the Memorandum is intended to provide only guidance for application of the Regulation”, somewhat based on the fact that four petitions submitted by the plaintiffs had been approved while the lawsuit was pending.    By failing to show immediate harm, the plaintiffs could not show harm in an injunction case.

Additionally, Judge Kessler found that the Administrative Procedures Act does not apply in this case.

Additional Notes from the Dismissal of the Neufeld Memo Lawsuit

There is some silver lining for consulting companies.  In the proceedings, USCIS has acknowledged that that joint employment, or staffing, is permissible under the H-1B program and that the Neufeld Memo is not binding to adjudicators.  Judge Kessler agreed and wrote that adjudicators can consider a number of factors when weighing an H-1B application,

“The memorandum instructs USCIS adjudicators to look to the totality of the circumstances in each case to determine whether there is an employer-employee relationship,” Kessler wrote.

However, Kessler added, they have “considerable discretion”  in interpreting H-1B rules.

Conclusion

Seems like this may be the end of the Neufeld Memo lawsuit as the plaintiffs do not seem likely to appeal Judge Kessler’s decision.   The Neufeld Memo lawsuit failed to accomplish its mail goal — the repeal of the Neufeld Memo; however, as a result of the lawsuit, there may be a little bit more clarity that the adjudicators are not required to follow the Neufeld Memo regulations.  Consulting companies should continue to follow the guidelines set forth by the Neufeld Memo with respect to proving employer-employee relationship.

Our office has received a number of “Neufeld Memo” requests for evidence (RFEs) and we have been able to successfully respond and address USCIS’ concerns.   Our expectation is that such RFEs will continue (if not intensify now that the Neufeld Memo lawsuit has been dismissed).   We have also shifted our filing practice towards filing upfront more evidence showing the employer-employee relationship to try and avoid RFEs.  Please feel free to contact us if we can help you respond to a Neufeld Memo RFE (on existing case) or prepare a new filing.

In a report released yesterday, the non-partisan Pew Hispanic Center provides a revised estimate of the unauthorized immigrants in the U.S.  According to the report, the annual inflow of unauthorized immigrants to the United States was nearly two-thirds smaller in the March 2007 to March 2009 period than it had been from March 2000 to March 2005.

This significant decline has contributed to an overall reduction of 8% in the number of unauthorized immigrants currently living in the U.S.-to 11.1 million in March 2009 from a peak of 12 million in March 2007, according to the report.

The data is obtained mainly through U.S. Census data.  It is interesting that the most significant decrease in the population of unauthorized immigrants has been among those who come from Latin American countries other than Mexico.  From 2007 to 2009, the size of this group from the Caribbean, Central America and South America decreased 22%.  The numbers of unauthorized immigrants from Mexico  (which accounts for about 60% of all unauthorized immigrants) peaked in 2007 at 7 million and has since remained mainly unchanged.  The study notes that the inflow of unauthorized immigrants from Mexico has decreased, which seems to suggest that unauthorized immigrants from Mexico have settled in the U.S. and are not going back even in an economic crisis.

The recent decrease in the unauthorized population has been especially notable along the nation’s Southeast coast and in its Mountain West, according to the new estimates. The number of unauthorized immigrants in Florida, Nevada and Virginia shrank from 2008 to 2009.  Other states may have had declines, but they fell within the margin of error for these estimates.  These states have been severely affected by the housing crisis which resulted in a significant decrease in construction jobs.

The report estimates that over the past two years, the annual inflow of unauthorized immigrants is 300,000 per year, down from about 550,000 per year between 2005 and 2007.

On Tuesday, July 20th, AILA filed a lawsuit against the Department of Homeland Security (DHS) and Citizenship and Immigration Service (USCIS) seeking the release of records concerning agency policies and procedures for the H-1B visa program.  AILA had attempted to obtain these documents under a Freedom of Information Act (FOIA) request which had been denied in full by USCIS.

This lawsuit focuses on the government’s H-1B visa review and processing procedures.  Since 2008, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced worksite inspections – expected to reach 25,000 visits in 2010 alone – in connection with H-1B cases.  At the same time, USCIS has kept under secret the rules and guidelines related to the review process.   The lack of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.

The lawsuit seeks the release of policy and other agency memoranda regarding H-1B adjudication and enforcement.   Considering the full denial of AILA’s earlier FOIA request, it may be expected that the government will fight this lawsuit to prevent this disclosure.  We will continue providing updates and developments on this case.  Please stay tuned.