Judge: 'Rubber-stamped' petitions for foreign workers can't continue

USCIS: The U.S. Citizenship and Immigration Services office in Tiyan is pictured in May 2018. A federal judge on Monday said she can't order USCIS to continue its past practice of rubber stamping petitions for foreign workers. Post file photo

The Trump administration’s new rule barring new immigrants from entering the United States if they’re unable to sustain themselves financially might apply to citizens from the Federated States of Micronesia, Palau and Republic of Marshall Islands, the U.S. Department of Homeland Security has stated.

Compact immigrants who are already in the United States might not be affected, states DHS, the umbrella department for the U.S. Citizenship and Immigration Services, which published the new rule on Aug. 14 on uscis.gov.

USCIS' new rule further defines immigrants who might become ineligible to enter the United States if they are at risk of becoming a “public charge” or a burden on federal government services.

The final rule goes into effect on Oct. 15.

In the public comment process, before the rule became final, DHS was asked if immigrants from the Compact of Free Association nations of FSM, Palau and the Marshall Islands – would be affected.

DHS states, in part: “Congress did not exempt foreign nationals entering the United States under COFA from the public charge ground of inadmissibility, or otherwise modify the applicability of such ground of inadmissibility with respect to COFA migrants.”

“DHS acknowledges that COFA migrants may be affected by this rulemaking when applying for admission at a port of entry or when applying for adjustment of status before USCIS, but respectfully submits that Congress never exempted COFA nonimmigrants from the public charge ground of inadmissibility.”

DHS issued the response after a comment was posted when the rule was still a proposal. “One commenter stated that ‘[t]his rule could be used to deny COFA entry and ability to live in the [United States] thereby abandoning our nation's commitment to our Pacific allies, including the more than 61,000 COFA persons currently residing in the United States.’”

DHS countered, "Congress expressly reiterated DHS's authority 'to provide that admission as a nonimmigrant shall be for such time and under such conditions as the government of the United States may – by regulations – prescribe.'”  

The new rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period. For instance, the receipt of two benefits in one month counts as two months. The rule further defines the term “public benefit” to include any cash benefits for income maintenance, including from Supplemental Security Income, Temporary Assistance to Needy Families, Supplemental Nutritional Assistance Program, most forms of Medicaid, and certain housing programs including the Section 8 rent voucher program.

GHURA seeks guidance

DHS adds that immigrants from the FSM, Palau and the Marshall Islands who are already in the United States “are unlikely to be affected by public benefits condition applicable to extension of stay applications.” Immigrants from the Compact nations don't need to apply for an extension of stay in the United States once they have arrived.

In the meantime, the Guam Housing and Urban Renewal Authority is seeking clarification from the federal government on households from the Federated States of Micronesia, Palau and the Marshall Islands who are on public housing assistance programs funded by the federal government and being run by GHURA.

“We are monitoring USCIS’ decision as 39% of our families are COFA citizens. We aren’t certain at this time what HUD’s position would be on this matter. We will cross that bridge when or if we get there,” stated GHURA Executive Director Ray Topasna.

More than 3,370 households in GHURA’s housing programs are from the Compact nations, he said.

The National Immigration Law Center has filed a lawsuit challenging the new rule.

Marielena Hincapié, executive director of the center, stated in a news release, “This news is a cruel new step toward weaponizing programs that are intended to help people by making them, instead, a means of separating families and sending immigrants and communities of color one message: You are not welcome here.

“It will have a dire humanitarian impact, forcing some families to forgo critical lifesaving health care and nutrition. The damage will be felt for decades to come,” she added, in part.

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