2018 was a year of lengthy debates regarding immigration policy in the U.S. and a fight to make significant changes to that could impact thousands of people. While the topic of the wall at the southern border is the most frequently discussed, it actually has little impact on how you can seek to acquire legal status in the U.S.
Real changes that may have an impact on those who seek to reside legally in the U.S. or retain their legal status are rarely discussed on cable news like the border wall but are extremely important.
There has been a lot of discussion about public benefits and how it will negatively affect a person who seeks to acquire permanent residency or U.S. citizenship. The I-485 application to Register Permanent Residence or Adjust Status was updated recently to include questions about receipt of public benefits. However, this only applies to the applicant. For example, if a person who is ready to file form I-485 has a US citizen child who receives Medicaid and food stamps, it does not impact their eligibility for permanent residency. The child is a U.S. citizen and has every right to the benefits for which he/she qualifies. The question refers only to the applicant themselves.
There is also a lot of confusion as to what actually qualifies as a public benefit under these changes. It includes those benefits which are considered to be a “means tested” benefit, or those that are supported by the federal government. Medicaid and food stamps are the most common, but could also include housing assistance and other similar programs. However, there are other programs that benefit certain individuals that are not considered public benefits. For example, unemployment or workers compensation are not considered public benefits for immigration purposes because they are funded by the employers themselves who pay into the unemployment system and also have a policy covering workers comp cases.
Many people believe that they are no longer eligible for permanent residency or citizenship because of benefits they or their family received. However, rarely will an applicant be affected by this because someone who does not have permanent residency is not eligible to receive such benefits to begin with. For example, if someone with no legal status applies for food stamps for themselves and their US citizen children, the children could be approved, but not the parent who has no legal status fraudulently obtained benefits are, however, a problem.
DENIAL OF APPLICATIONS WITHOUT AN OPPORTUNITY TO RESPOND
Until recently, immigration officers reviewing applications had a specific way to handle applications they felt were lacking sufficient evidence to approve; first, they would issue a Request for Evidence (RFE) which detailed the concerns and what was allegedly missing from the application or what needed clarification. Then the applicant had typically 90 days to respond and provide all evidence and explanations requested by the officer.
If the response to the RFE was determined to not be sufficient, then typically the officer would issue a Notice of Intent to Deny (NOID) again explaining the issues with the application and outlining the reasons why they were denying the case. However, the applicant was also given a chance to respond to the NOID, and if they could obtain sufficient evidence to overcome the problem, then the application could still be approved.
Now it is within the discretion of the officer whether to issue an RFE, a NOID, or to simply deny the case immediately outright for failure to have made a proper case. This is a major departure from the previous policy and requires all applications to be correctly completed from the start and all required documentation included. If something is missing, they could simply deny the case. The result is a loss of not only the fees paid to the government, but the possibility of being placed in removal proceedings, or denial of future immigration benefits.
Having the discretion to simply reject or outright deny an application, without the opportunity to respond to their concerns makes it more important than ever to consult an experienced and knowledgeable immigration attorney prior to submitting anything to USCIS.
It is important to remember that these are not changes to the immigration laws themselves. Rather, these are changes to policy and procedure of how to process immigration cases. Anyone who was previously eligible for permanent residency, naturalization, or any other type of immigration status is still eligible to apply and be approved. With expert legal assistance you can navigate these changes and reach your immigration goals.
If you have additional questions about these changes or anything else related to U.S. Immigration Law, please do not hesitate to contact our office. At Wilner & O’Reilly we practice immigration law exclusively and continue to see our clients approved in spite of the recent changes. We offer free, in-person consultations at our offices in Orange, Fresno, Riverside, Sacramento, and San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho. Please contact us today to start navigating the complex immigration system.
SEAN T. CARPENTER – MANAGING ATTORNEY – SALT LAKE CITY
Mr. Carpenter is the Managing Attorney of the Salt Lake City office of Wilner & O’Reilly. He is admitted to the Utah State Bar and the United States District Court for the District of Utah. Proficient in all areas of immigration law, Mr. Carpenter currently focuses on family-based immigration, employment-based, as well as U-Visas, 601 waivers, and investment-based immigration cases. Mr. Carpenter previously received his bachelor’s degree from Brigham Young University in Spanish Translation. He attended the Sandra Day O’Connor College of Law at Arizona State University where he graduated Magna Cum Laude, where he was a member of the Law Journal and served as an associate editor.
KELLY S. O’REILLY – FOUNDING PARTNER
Kelly O’Reilly is a founding partner with Wilner & O’Reilly, APLC, and a former Immigration Officer with Citizenship and Immigration Services in Los Angeles and Orange County. With over 18 years working as an immigration attorney, he is an expert in all facets of Immigration Law and one of the best immigration attorneys serving Orange County and Riverside County. A native of Fresno, California, Mr. O’Reilly received his law degree from the University of La Verne, College of Law and his Bachelor of Science degree from Brigham Young University. A former missionary in Hong Kong, Mr. O’Reilly has a great love of Chinese culture and is conversant in Cantonese.