Under the Affordable Care Act (ACA), also known as Obamacare, individuals seeking coverage under a qualified health plan offered on a Health Insurance Marketplace or through an insurance affordability program are required to provide information regarding their immigration status and certain information about their household members to determine eligibility for such coverage. In an October memo, U.S. Immigration and Customs Enforcement (ICE) clarified that it does not use this information as the basis for pursuing a civil immigration enforcement action.
Posts Tagged ‘Immigration’
Now is a good time for foreign nationals who will be departing the United States for travel abroad over the holidays to review their travel documents to ensure that their re-entry into the U.S. is as seamless as possible. Depending on an individual’s current status and whether he or she is “in process” for another status, different documentation may be required upon return to the United States. For example, certain foreign nationals who are currently in status but whose visa has expired will be required to apply for a new visa at a U.S. consulate in their home country. (Wait times for visa appointments at U.S. consulates vary and tend to swell during the holiday season, as do processing times.) For other foreign nationals, an advance parole travel document may be required to preserve a pending green card application. And yet for others, changed circumstances (such as change in work, change in relationship, arrests, and criminal matters) may have immigration consequences. Even travelers on the Visa Waiver Program should ensure that their ESTA authorization is still valid; if re-authorization is required and the individual is denied and a visa becomes required for re-entry, sufficient time will be necessary for that individual to make an application.
Foreign nationals planning to travel outside the United States within the next few weeks and who have questions about their documents are encouraged to contact our office.
A new study by the Institute on Taxation and Economic Policy (ITEP) finds that undocumented immigrants who live and work in the United States pay billions of dollars in taxes every year to state and local governments. Given the chance to earn legal status, they would pay even more. According to ITEP, undocumented immigrants paid an estimated total of $10.6 billion in state and local taxes in 2010. ITEP also notes that allowing undocumented immigrants to work in the U.S. legally would increase their state and local tax contributions by an estimated $2 billion a year. Simply stated, legalization pays.
As previously announced, on June 26 the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional, permitting bi-national, same-sex married couples to petition for the same immigration benefits offered to heterosexual couples. These benefits include family-based petitions, employment-based dependent petitions, nonimmigrant visa petitions, and waivers from deportation such as Cancellation of Removal. More recently, USCIS has confirmed that same-sex couples who legally married in a state that recognizes same-sex marriages, but do not reside in a state that does, are still eligible for immigration benefits. The U.S. Department of State also has confirmed that it will begin processing marriage-based cases for same sex couples. Under the Immigration and Nationality Act, to be a legal marriage for immigration purposes, the marriage must only be legal in the jurisdiction in which the marriage occurred.
In its recent report, the Congressional Budget Office (CBO) provides various data on the foreign national population residing in the United States:
- The number of foreign residents in the United States without legal authorization — estimated to be about 11 million — increased by about 3,000 since 2000. Most of that increase was due to an increase in the unauthorized population from Mexico. According to DHS, of the 11+ million undocumented, about 6.8 million came from Mexico.
- From 1860 to 1910, between 13 percent and 15 percent of people in the United States were born in another country. After 1910, the share of the population composed of the foreign born began a steady decline, falling to less than 5 percent by 1970. That share has increased rapidly since 1970; currently, about 40 million U.S. residents are foreign born, making up about 13 percent of the U.S. population — the largest share since 1920.
- In 2012, three states that account for more than one-fifth of the nation’s population — California, New York, and New Jersey — had a foreign-born population that exceeded 20 percent of each state’s total population.
Maintaining lawful permanent resident status and avoiding abandonment of it by long absences abroad can be tricky. There is a common misunderstanding that simply returning to the United States once every six months will preclude a finding that one has abandoned his or her lawful permanent residency. Whether an LPR has abandoned permanent residency, however, is not based solely upon the length of time spent outside of the U.S., but, rather, on a totality of circumstances and a number of various factors.
The CBP Inspector’s Field Manual (IFM) explains that the length of time spent abroad is not the sole indicator of abandonment. The IFM notes that other indicators of possible abandonment are “employment abroad, immediate family members who are not permanent residents, arrival on a charter flight where most passengers are nonresidents with return passage, lack of a fixed address in the U.S., or frequent prolonged absences from the U.S.” In questionable cases, the IFM advises officers “to ask for other documentation to substantiate residence, such as a driver’s license and employer identification cards.”
CBP representatives in Baltimore, for example, have said that its officers are focused less on the length of time abroad and more on where the person actually lives. They also look at how many years the person has lived in the U.S., whether the person is employed in the U.S. or abroad, where family members live, and whether U.S. taxes have been paid. For CBP representatives at Washington (Dulles), domicile is the major issue.
Foreign nationals who expect to be absent from the United States for prolonged periods of time are advised to discuss their circumstances with an immigration lawyer who can thoroughly review all the facts of the situation and provide guidance on how best to avoid abandonment. Filing an application for a Re-entry Permit may be one of several solutions to amassing indicia of one’s permanent intent to remain a U.S. resident.
We have periodically reported on new studies and reports that support the notion that immigrants and immigration stimulate the economy and create new jobs for U.S. business. Here are some more:
- A Kauffman Foundation report (February 2013), “Give Me Your Entrepreneurs, Your Innovators: Estimating the Employment Impact of a Startup Visa” states that between 500,000 and 1.6 million new jobs could be created over the next 10 years as a result of a “Startup” visa, a proposal to make 75,000 visas available for current holders of H-1B and F-1 visas.
- The Center for American Progress (March 2013) reports that granting undocumented immigrants immediate citizenship would add $1.4 trillion to economic growth, increase tax revenues by $184 billion and create 203,000 jobs over the next decade.
- A May 2012 report of The Partnership for a New American Economy and the Partnership for New York, concludes that America’s position as the global magnet for the world most talented and hardest-working is in jeopardy. In the report, entitled “Not Coming to America: Why the U.S. Is Falling Behind in the Global Race for Talent,” the authors compare America’s immigration policies with those of other nations — and finds our policies irrational and undirected, in sharp contrast with the targeted, strategic approaches seen elsewhere. They outline six specific immigration reforms that the country should adopt to continue to attract the most talented, innovative, and necessary workers: (1) Provide visas to the STEM graduates educated in American universities. (2) Award more green cards based on economic needs. (3) Create a visa program to allow foreign entrepreneurs to build their firms in the US. (4) Let American companies hire the highly educated workers they need. (5) Give seasonal and labor-intensive industries access to foreign workers when they cannot find Americans to fill jobs. (6) Allow local governments to recruit more immigrants to meet regional needs. These are expected to be the main tenets of the new reform proposal.
- And finally, National Economic Council Director Gene Sperling added his voice to the choir in a recent White House blog, stating that common-sense immigration reform is good for the economy, and describing how it would grow America’s GDP, stimulate small business growth, create more jobs, boost demand for consumer goods, and more.
In a recent policy memo, USCIS announced that it is limiting the response time to 30 days for a request for additional evidence (RFE) issued in response to a I-601A provisional unlawful presence waiver application, rather than the normal 84 days for RFE responses. When an applicant receives an RFE by mail, three additional days are provided for the response.
USCIS and the Department of State (DOS) closely coordinate the implementation of the provisional unlawful presence waiver process, thus the 30-day RFE timeframe, states USCIS, will help streamline USCIS processing, prevent delays at the National Visa Center (NVC) and at consular posts, and allow applicants to complete immigrant processing in a more timely manner. Currently, the agencies act simultaneously, with USCIS adjudicating the Form I-601A at the same time DOS collects required information from the applicant to complete the immigrant visa packet. DOS holds the scheduling of the immigrant visa interview until USCIS has notified the NVC of its decision on the Form I-601A. Adjudicators may, however, increase the response time for the Form I-601A after obtaining supervisory concurrence and when warranted by circumstances.
USCIS announced that commencing on May 6, 2013, foreign nationals will be required to submit fingerprints and photographs when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. This new biometrics requirement is called Customer Identity Verification (CIV). Currently, USCIS requires applicants and petitioners requesting immigration or naturalization benefits to visit an Application Support Center (ASC) to provide biometric data. This requirement will not change. Instead, USCIS will add another round of fingerprinting and photographing. For CIV, an individual appearing at a USCIS field office for an interview or to be issued evidence of an immigration benefit will have his or her identity biometrically re-verified. Examples of evidence include temporary travel documents, parole authorizations, temporary extensions of Form I-90, and temporary I-551 stamps on passports or on Forms I-94 to evidence lawful permanent resident status.
An individual coming to USCIS for an InfoPass appointment or as the guest of an applicant or petitioner will not be required to submit biometric data.
The individual’s experience under this new process will be similar to that of an ASC appointment. USCIS will take two fingerprints and a photograph of the individual and input this information into the US-VISIT (U.S. Visitor and Immigrant Status Indicator Technology) Secondary Inspections Tool (SIT), a Web-based application that processes, displays and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security. After identity verification is satisfactorily completed, individuals will proceed to their interviews or be issued their immigration documents. In instances where biometrics don’t produce a verification, other steps will be taken, which may include reprocessing at an ASC or even further questioning if an identity is suspicious.
Why is this second round of biometrics being implemented? USCIS says to protect against identity fraud and defend against threats to national security.
News In Brief: E Visa Processing Now Available in Calgary; DACA Statistical Update; TPS Extended for Eligible Nationals from Honduras, Nicaragua; DED Extended for Liberians Khartoum, Sudan Resumes Full Consular ServicesFriday, May 3rd, 2013
E Visa Processing Now Available in Calgary: The Calgary Consulate General has introduced E visa processing services from businesses in Alberta, Saskatchewan, and the Northwest Territories of Canada. The consulate also has streamlined its procedures in an effort to encourage more cross-border trade and investment. First-time E visa applicants can schedule a visa appointment in 10 business days; employees of registered E visa enterprises and dependents of E visa holders can schedule appointments the next business day and will need only to provide minimal documentation at the time of their visa interview. Qualified applicants will generally receive their visa in three to five business days after the interview. E visa processing is also available (and remains unchanged) at the U.S. consulates in Toronto and Vancouver serving businesses in those regions of Canada.
DACA Statistical Update: As of March 14, 2013, USCIS reports that more than 450,000 DACA (Deferred Action for Childhood Arrivals) applications have been received by the agency and almost 250,000 cases have been approved.
TPS Extended for Eligible Nationals from Honduras, Nicaragua; DED Extended for Liberians: USCIS has extended the designation of Honduras and Nicaragua for Temporary Protected Status (TPS) for 18 months from July 6, 2013, through January 5, 2015. Deferred Enforced Departure (DED) and work authorization of certain Liberians has been extended from April 1, 2013, through September 30, 2014.
Khartoum Resumes Full Consular Services: As of March 25, 2013, the U.S. Embassy in Khartoum, Sudan, will resume full consular services, including nonimmigrant visa (NIV) processing, and follow-to-join refugee/asylee processing.