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COVID-19 has certainly given people a lot to be anxious over, but your green card application doesn’t have to be one of them. USCIS put out a statement which said that immigrants who get tested or treated for COVID-19 will not be penalized and should feel free to seek out medical treatment.
This is despite Trump’s public charge rule, which received the green light from the Supreme Court and took effect on February 24, 2020. In fact, the rule seems to be suspended in COVID-19 cases. The purpose may be to protect public health by removing barriers to seeking care.
The amnesty includes testing, preventative care, and seeking care for the virus itself.
The amnesty applies to other benefits. According to The New York Post: “Immigrants who can’t work or attend school and must use public benefits during the virus outbreak and recovery will be given a chance to explain and provide documentation later.” This includes taking advantage of SNAP benefits and Section 8 benefits.
Save documentation such as layoff letters, pink slips, medical records to help you explain and prove your case later if you feel this does or could apply to you in the future.
Keep in mind that many immigration categories are exempt from the public charge law in the first place. It impacts people seeking permanent residency status through family member petitions more than any other category. It also applies to people who are seeking entry at the borders. U-visa holders, T-visa holders, immigrants who are granted asylum, refugees, and many other categories are exempt from this law. They also do not apply to the naturalization process.
The rules never applied to taking advantage of benefits for a short period of time, but rather to people who were likely to receive them for 12 months in any 36 month period. Taking SNAP to tide you over for 4 months while seeking new employment wouldn’t have created problems under the new rule to begin with, though being ready to document and explain is always a good idea.
Immigration officers could also consider other factors like your education, English proficiency, and other factors which could make a positive impact on your ability to become self-sufficient. Public charge is a grounds for denial but does not trigger automatic denial.
In addition, applications received prior to February 23, 2020 are adjudicated according to the prior rules, not to the new rule.
If you are undocumented and are looking for a place to go where you will not be reported then you should look to community health centers, which are often safe spaces and which generally do not ask about immigration status before offering treatment.
If you were already following the legal immigration process you should be able to seek care at any medical facility in the United States that would take any other patient.
A global pandemic is a scary time and injects uncertainty into everything, including immigration. If you have legal questions or concerns about your immigration status or application consider calling Hykel Law for help.
See also:
How to Get a Visitor’s Visa Extension
New Laws for Green Card Holders in 2020
How to Get a Green Card for Your Fiancee
Denaturalization. It’s a word that’s suddenly on everyone’s lips now that President Trump has created a task force to “pursue those who unlawfully obtained citizenship.”
Yet how does it work, and how worried should you be?
It’s just that we don’t pursue it very much. In the past there have been 107 successful denaturalizations…few enough to fit on a Wikipedia page.
A person may be denaturalized in one of the following scenarios:
When you are denaturalized the Department of Justice may either initiate a civil proceeding against you (called a revocation of naturalization case) or a criminal proceeding. If the DoJ is successful your status is downgraded to “legal permanent resident,” or Green Card holder. At that point you may be eligible for deportation, especially if you violated the terms of the green card holder’s status by committing certain crimes.
For example, small fibs, mistakes, or slip-ups on your citizenship application may not be valid grounds for removing your citizenship. According to the Supreme Court Case Maslenjak v. United States the lie must be “material.” It has to be relevant to the naturalization decision.
Thus, an immigration attorney can make the argument that if an application lie exists it is not at all material.
The misrepresentation of fact must also be a “willful” one. Your attorney may be able to show that your misrepresentation was not, in fact, willful. For example, many of the questions are very broad and vague. Your best effort attempt to answer may seem to be factually wrong when in fact it was correct to the best of your ability to understand the question.
It’s natural to be concerned that the DoJ will be overzealous in pursuing these cases. The best thing you can do is to choose an immigration attorney now, so that you know who you want to call if you find yourself embroiled in a lawsuit. You might also check for certain vulnerabilities. For example, if you’ve been making charitable donations it’s a good idea to check that these organizations aren’t affiliated with terrorist organizations in any way, and to consult with an attorney right away if you discover a problem.
Keep in mind the burden of proof is still high. In the civil case the DoJ must present “clear, convincing, and unequivocal evidence which does not leave the issue in doubt.” In a criminal case they must still meet the usual standard: “evidence beyond a reasonable doubt.”
You must still be prepared to fight hard. Your family members can be impacted if you are denaturalized (see this fact sheet) and of course you could find yourself a person without a nation if the DoJ targets you and is successful in bringing a suit against you.
While this new task force is undoubtedly part of the Trump Administration’s continued efforts to crack down on immigrants, it may not be time to panic yet.
Got questions? Reach out to Hykel Law to get answers.
See also:
Tax Time for Immigrants: What You Should Know
New Laws for Green Card Holders in 2020
What Are The Grounds for Cancellation of Removal?
A visitor’s visa allows you to enter the country for business or pleasure purposes for six months. When you come into the country you must provide evidence that you intend to legitimately pursue one of these two purposes.
The US monitors your conduct while you’re in the country and looks for signs that you’re trying to establish residency, or that you’re trying to work or study while you’re in the country on your visa. They also look for signs that you’re trying to engage in “birth tourism,” that is, entering the country for the intent of having a child here, thus turning that child into a citizen.
It is very important that you get the right type of visa for your intended stay. Consult with an immigration attorney if you aren’t sure. Immigration is difficult enough without creating the impression that you attempted to do anything under false pretenses.
There are lots of legitimate reasons why someone would need to extend such a visa, and the government recognizes them. These include:
If you want to extend your stay you should make the application at least 45 days before your visa expires. This can be difficult if the unforeseen circumstance arises at near the six month mark, perhaps just a few days before you plan to go home.
For that reason, a prudent traveler might plan to stay for 135 days instead of 180, creating a solid cushion of time to get a visa extension approved should an unforeseen circumstance arise.
What if you want to change your visa type? If you are offered a job or an academic opportunity there is also room to file for a change of status. You might want to file for an extension for the purpose of remaining in the country legally while waiting for your change of status application to be processed.
Keep in mind that students are facing difficulties getting their visas renewed, which means if you do intend to stay in the United States you may want to get legal help right from the start. Many students are missing their classes thanks to delays by the US State Department.
Need help? Contact Hykel Law today. We can help you get the right visa for your needs and can help you avoid trouble with immigration authorities.
See also:
How to Found a Company in the United States
Remote Work and US Immigration Law
What Happens When You Lose Your Job on an H-1B Visa?
April is coming fast, and for Americans, that means tax time is coming, too. It may be tax time for you, too.
Millions of immigrants pay taxes every year, even if they’re undocumented. If you’re not yet one of them, you should consider doing so.
Tax documentation can be extremely helpful either when you apply for your green card or when you apply for permanent citizenship. It can help you:
You should file even if you are working under the table or are otherwise undocumented. We’ve even seen cases where filing taxes helps with Cancellation of Removal proceedings.
Yes, your returns can show you’re working without a permit, but if you’re already an undocumented immigrant the completed tax filings tend to help you more than they tend to hurt you.
In addition, your tax information is privileged. The IRS cannot give it to USCIS, to ICE, to law enforcement, or to the Department of Homeland Security. It can’t be used against you to initiate removal of any kind, which means it’s a safe way to create the evidence you’ll need to pave the way towards a legal presence in the country.
Paying taxes can be quite expensive for some immigrant families, so it’s a good idea to start saving up now. If you have been “paid under the table” then you haven’t been receiving income tax withholding throughout the year. This means the bill can be quite large.
In addition, you won’t be eligible for certain tax breaks like the earned income credit, which can drive your tax bill all the higher.
Another disadvantage is that mistakes can be very costly, which means you should consider working with a tax professional. For example, if you are already a green card holder you’ll want to be careful to disclose your immigration status on your tax return. Laws have been proposed which would make an omission of this information grounds for the revocation of your green card should the omission be discovered.
You’ll need to file for an Individual Taxpayer Identification Number, or ITIN. You do this simply by filing a form with the IRS.
You will have to include documentation which substantiates your status as an immigrant, as well as documentation which substantiates your identity. Supporting documents include:
At least one of these documents needs to contain your photograph, and the IRS may require you to provide certified translations of documents that are in a foreign language. If you mail these documents in they’ll return them to you. You can also walk them into the local IRS office, or find an Acceptance Agent who can help you.
You’ll attach your W-7 to your first tax return while leaving the SSN area blank on the return.
Nobody loves filing taxes or paying them, but there’s no denying it’s part of being a citizen of the United States of America.
See also:
New Laws for Green Card Holders in 2020
How to Get a Green Card for Your Fiancee
Is It A Crime to Encourage Undocumented Immigrants?
Achieving permanent resident status isn’t easy. It can be tempting to relax once you finally achieve the coveted green card.
Still, it’s important to remember that obtaining a green card isn’t the same thing as securing citizenship. Nowhere is that more obvious than in the new laws taking effect in 2020.
Failing to adhere to these laws can result in deportation.
You should always declare all of your income. Failing to declare income is a crime for US Citizens too, but for green card holders this failure carries the additional threat of deportation, as well.
If you are a male green card holder between the ages of 18 and 25 you must register for the selective service system (aka, the “draft.”) The chances you’ll be drafted are relatively low, but the chances you’ll be deported for failing to sign up are quite high.
According to a new Department of Justice draft regulation, using or applying for food stamps, medicaid, TANF, or for any other welfare program within five years of becoming a permanent resident can threaten your status and make you eligible for deportation. The government will be trying to determine if your condition or reason for seeking help was a problem before you entered the country.
The most common failure would be the failure to disclose a health condition which could keep you from earning an income.
The plan has not gone into effect yet: it has to go through a public comment period, and the Attorney General will have to sign off on it. Given the hostility the current administration has towards those who use public benefits it’s likely the rule will go into effect, which may make it a good idea to steer clear of public benefits.
Of course, here in Pennsylvania many green card holders aren’t eligible for benefits in the first place. Still, it’s a good issue to keep an eye on.
Leaving the country can put your green card status at risk. Stay too long, and your green card could be treated as an “abandoned” card.
USCIS doesn’t give specific lengths of time. Instead, they evaluate the reason for your trip, how long you intend to be absent, other circumstances, and events which may prolong your absence.
If you’re going to go, it’s a good idea to obtain a re-entry permit from USCIS prior to leaving the country. If you fail to do that you can also obtain an SB-1 returning resident visa from a US Consulate.
Got an upcoming trip? Not sure whether you can apply for benefits?
Contact Hykel Law today so you can protect your permanent resident status.
See also:
How to Get a Green Card for Your Fiancee
What Are the Grounds for Cancellation of Removal?
Avoid These 3 Green Card Sponsorship Mistakes
Popular television show depictions of “green card marriages” make it seem like turning the love of your life into a permanent citizen is the easiest thing in the world. In reality, marriage or the intent to marry is not necessarily a “free pass.” There are still lots of hoops you have to jump through, and visa issues you’ll have to navigate.
All of this means you’ll have to have a strategy. Will you get married in the United States or will you do it overseas? What do you do if you’ve been denied?
While this is obviously an issue that requires the help of a qualified immigration attorney, this post will offer you a broad overview of your options and the implications of each of them. Keep in mind there is no direct path straight to a green card no matter what you do.
There are certain requirements you and your fiancee will have to meet before you can apply for any of the appropriate visas.
A whole host of issues can make your intended ineligible. Certain diseases, like tuberculosis, can make it impossible to enter the country. So can a criminal record of any kind, a failure to receive certain vaccinations, and past violations of immigration law.
If you get married in your spouse’s home country you can either have them apply for a (immigration) permanent resident visa or a K-3 visa. If you apply for an immigration visa your spouse will have to wait in their home country before coming over to the United States.
If your spouse does not want to wait the K-3 visa offers a pathway for entering the United States legally. You can then work on adjustment of status after you and your spouse are settled in the United States.
If you want to get married in the United States this visa is your only option. You will be eligible for this visa if:
Once your spouse can prove you got married within the 90 day window they may apply for adjustment of status. You’ll need to submit the appropriate forms. Your spouse will also have to take a medical exam, submit to a background check, and attend an interview.
This process will require some additional planning and legal help if you want to bring over your spouse’s children as well.
This visa allows your spouse to come into the US while awaiting permanent residency status. It will start with an application abroad, and an interview at the appropriate US embassy within your spouse’s country.
This visa will require you to provide an Affidavit of Support. This proves you have enough income to keep your spouse off public assistance. Your spouse will also have to attend an adjustment interview and submit to a background check.
Your spouse will receive a 2-year conditional green card when the status has been adjusted. This is a “test period” for your marriage and is designed to help prevent marriage fraud. Your spouse will then have to apply to get the conditions removed before your visa can become permanent.
Sadly, K-1 and K-3 denials happen, even when you do everything right. If you receive a denial you should reach out to your immigration attorney right away so you can begin correcting the issues raised in the denial letter. You can submit a new application, or you can get married overseas and go straight to applying for an immigrant visa.
See also:
Avoid These 3 Green Card Sponsorship Mistakes
5 Things Same Sex-Couples Should Know About Immigration
Are you an immigrant who is interested in coming to found a start-up here in the US? While the immigration climate in America has been, of late, frustrating, confusing, and frightening, it’s certainly still possible to do just that.
Of course, before you begin you’ll want to make sure you have a viable business idea that will work in America. To that end you might want to look into a short-term visa, at least long enough to make contacts and do market research.
If you’re sure you’re ready to get started, you’ll still need a Visa, but there are several options. The one that’s right for you will depend on a number of factors, including the funds in your bank account and whether or not you’re trying to open up a path to citizenship.
This is the visa for immigrants who don’t have a ton of cash to invest. It’s a good visa for someone who wants to work as a freelancer, independent contractor, or consultant.
These visas aren’t available to everyone. A Master’s degree is the minimum barrier for entry. If you don’t have a Master’s you have to prove immense talent in your field, and that’s a little subjective. You also have to prove that granting the visa is in the best interests of the United States, also subjective.
You’ll want a lawyer to help you make the case.
If you have at least $100,000 to invest then this is the right visa for you. You have to invest all of it into a new business opened in the US.
This visa is only open to treaty countries, but the list of eligible countries is long. Mexico’s on the list, as are many South and Central American countries. Sadly, neither India nor China are on the list, so immigrants from these nations will need another option.
If you have $500,000 and are willing to start your business in a rural area then you can invest it into this visa, which will immediately make you a lawful permanent resident of the United States. If you don’t want to live in a rural area, you can get it done for $1 million.
You can do this regardless of your educational background, country of origin, or current employment status. It’s expensive, but it’s worth it.
Some immigrants have made other types of visas work for them while starting their business. For example, you can start a business with the help of investors, hire a board of directors, and have them hire you in on an H1B visa. If you have extraordinary abilities in the arts, sciences, athletics, or in business then you might be able to make a case for an O1 visa.
It’s a good idea to use an attorney anyway, but you’ll definitely need one if you plan to use one of these “workaround” visas.
Contact Hykel Law if you’re looking at opening your new business in Pennsylvania.
See also:
What Happens When You Lose Your Job on An H-1B Visa?
Immigrants Bolster the USA Economy – A Fresh Look
Last month this blog reported on the Trump Administration’s attempts to stymie family-based migration by introducing a new health insurance mandate. The mandate required visa applicants to identify a specific health-insurance plan they had purchased and would be covered by within thirty days of entering the country.
Under the policy, immigrants were not allowed to use Medicaid, nor were they allowed to use Affordable Care Act subsidies, both of which are considered to be “government funds.”
Recently, US District Judge Michael Simon, a Federal Judge in Oregon, issued a preliminary injunction blocking this policy. This was the result of a law suit filed by the American Immigration Lawyers Association, Innovation Law Lab, and the Justice Action Center, among others, as a class action complaint.
In the complaint, Plaintiffs noted: “The Proclamation seeks to unilaterally rewrite this country’s immigration laws, imposing a new ground of inadmissibility that Congress has expressly rejected, and creating requirements that will be extremely difficult, or impossible, for most otherwise qualified immigrant visa applicants to satisfy. In so doing, the Proclamation contravenes well-established and duly enacted immigration and healthcare laws, exceeds the scope of the President’s statutory authority, and violates Constitutional separation of powers and equal protection principles.”
They also noted that the ruling in fact “undermined its own stated goal of cutting some of the uncompensated care costs from the U.S. health care system.“
A preliminary injunction doesn’t put a permanent end to the policy. It does ensure that the policy can’t be active while it’s moving through the courts.
In his opinion, Simon ruled this was “the sort of decision that fell to Congress to make, not the president, and that the administration’s rule conflicted with the Immigration and Naturalization Act.” Simon also noted that this proclamation would have affected approximately 60% of all visa applicants. Finally, he said, “the president offers no national security or foreign relations justification for this sweeping change in immigration law.”
The law already prevents lawful permanent residents from getting Medicaid for their first five years in the country, though refugees, asylum seekers, and other types of non-citizens may take advantage of Medicaid. The ACA does make subsidies available to non-citizens who are in the country legally.
In the previous blog post we suggested it might be a good idea to reschedule visa interviews in the hopes that something like this would happen. Now that it has, it’s a good time to schedule an appointment with your immigration attorney to try to get your visa application pushed through and completed, before the administration tries anything else.
See also:
Is It A Crime to Encourage Undocumented Immigrants?
Three Legal Wins for Immigration
The Supreme Court made headlines today when it announced it would hear The United States v. Sineneng-Smith.
The Sineneng-Smith case has two parts, one of which is settled and one of which is not. Sineneng-Smith ran an immigration help business out of California. She defrauded immigrants by charging them an excessive amount of money to apply to a program she knew was no longer in effect. That Sineneng-Smith committed fraud is not in dispute.
What is in dispute is a conviction for a violation of Section 1324 of the Immigration and Nationality Act, which makes it a crime to “encourage or induce an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of the law.”
The 9th Circuit Court of Appeals upheld the fraud conviction but overturned the encouragement conviction. The government responded by filing a writ of certiorari. The Supreme Court granted cert. in early October.
The question presented: “Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(1)(1)(A)(iv) is facially unconstitutional.”
This isn’t the first time this law has been in the news. Last year, the Trump Administration began using these laws against uncooperative officials in sanctuary cities.
Advocates fear upholding this law as unconstitutional could have a chilling effect on the ability of immigration lawyers, advocacy organizations, and others on providing normal services to their clients.
The ACLU filed an amicus brief citing instances of innocent behavior, like Kamala Harris’ tweet which encouraged immigrants to find safety from the California wildfires regardless of immigration status, would be illegal under this broadly written law. So could an immigration lawyer’s routine advice to client.
The brief cites a litany of case law and precedent to uphold its conclusions. It also neatly outlines the problems with using the law in the way it has been used in the Sineneng-Smith case.
“The 1st Amendment does not permit the government to punish advocacy of unlawful acts save in two narrow circumstances. Neither circumstance applies to Section 1324(a)(1)(A)(iv). First, the incitement doctrine permits the government to regulate speech that is intended and likely to elicit imminent violence. But section 1324(a)(1)(A)(iv)’s prohibition on speech involves no violence, and broadly criminalizes all speech regardless of the likelihood and timing of such violation actually occurring. Second, the government may criminalize ‘speech integral to criminal conduct,’ but only when this speech is closely related and necessary to the commission of a crime, such as guiding an individual step-by-step through a false case filing.”
Good arguments, joined by many other voices who are filing briefs of their own.
Now all we have to find out is whether the Supreme Court agrees.
See also:
In The News: Supreme Court to Hear Asylum Case
In The News: The Supreme Court Decision You Need to Know About
What is the Current Law on Claiming Asylum in the United States?
We look forward to helping you with your immigration case. We have the experience, knowledge and staff to handle your matter swiftly. Reach out today to discuss your needs for representation.