Public Charge Rule

Public Charge Rule

Sat, 07/25/2020 - 14:46
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The Trump administration has expanded its anti-immigration policies. The Department of Homeland Security (DHS) has been instructed to broaden the definition of who is a “public charge”. The intent being to make it tougher for an immigrant to gain permanent residency.

On January 27, 2020, the U.S. Supreme Court (by a 5 to 4 decision) lifted the last remaining nationwide injunction which was preventing the rule from going into effect. DHS will implement the new public charge rule, except for in the state of Illinois.

• February 21, 2020, the U.S. Supreme court (by a 5 to 4 vote) invalidated the injunction blocking the new rules from going into effect in the state of Illinois.

Further legal challenges will continue in lower courts.

♦ The new rule will go into effect on February 24, 2020.

Adjustment of Status applications postmarked before February 24, 2020 will be decided under policies in place before the new rule.

Fewer legal immigrants will receive approvals. DHS admits that the rule change will have this effect — indeed, it is the purpose of the rule — but it declines to estimate it. Fewer legal immigrants will come legally to the United States.

U.S. citizens will be separated from their spouses and children.

• Nearly 370,000 immigrants who received permanent residence in the United States in 2017 were spouses or minor children of U.S. citizens. The new rule could ban about half of the spouses of U.S. citizens receiving permanent residence.

The Trump administration is redefining the historical meaning of the term “public charge,” which will result in far more immigrants not receiving status in the United States based on a bureaucrat’s suspicions that they could use public funds such as welfare.

The new rule states, “Any alien who, in the opinion of the consular [or immigration] officer…. is likely at any time to become a public charge is inadmissible.” Someone who is inadmissible cannot receive a visa to travel to the country, be granted admission to it, or receive status in it.

• The process to identify someone’s likelihood to use benefits is skewed to create denials.

Simply put, more people will now be denied a Green Card based on the feelings of an immigration officer.

The law as it used to be

The law which has existed largely in its current form since 1891 refers to but does not define “public charge.” Rather, it requires officers to consider at a minimum the person’s age, health, family status, finances, and education or skills.

• The law also requires that family members and employer‐sponsored immigrants provide an “affidavit of support.” They need a sponsor in the United States who will guarantee the immigrant does not receive public funds like welfare.

In 1999, INS guidance defined a public charge as someone who is “primarily dependent” on the government for subsistence.

Non‐cash benefits, such as food stamps or Medicaid, were not considered. Cash benefits receipt would not have automatically resulted in a public charge denial.

Some of that is changing.

Trump’s rule changes

Until now, the use of most public benefits was not a barrier to legal status in the United States, which has been the policy for at least two decades.

• Most immigrants who are on the path to a green card don’t actually have access to these benefits.

• Many lawfully present immigrants are ineligible for Medicaid during their first five years of legal residency, while undocumented immigrants are largely barred from public coverage.

The rule will likely deter many lawful immigrants from seeking insurance through Medicaid and other public benefits for which they may be legally entitled to.

The new rule directs immigration officers to consider several factors related to an immigrant’s economic situation, education, and health.

Officers are encouraged to use their own discretion in making important decisions about whether a person can immigrate to the United States. The discretionary consideration of these factors under the new rule will impact green card applicants from low-income families.

♦ The rule expands the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge.

Under the new rule, federally-funded Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as food stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.

Specific changes

Like the old rule, the test is future-looking. The new rule redefines what it means to be a “public charge.”

Now, instead of assessing whether an applicant is likely to become “primarily dependent” on the government for income support, the new rule defines a public charge as a person who is likely to receive any number of public benefits for more than an total of 12 months over any 36-month period of time.

Each benefit used counts toward the 12-month calculation. For instance, if an applicant is likely to receive two different benefits in one month, that counts as two months’ use of benefits.

As before, all use of cash aid including TANF and SSI is considered. But now state and local cash assistance programs could make an individual inadmissible under the public charge ground.

♦ As before, benefits received by an immigrant’s family members will not be considered in the public charge determination. Additionally, Medicaid received by applicants while under age 21, while pregnant (and up to 60 days after a pregnancy), or during an emergency are not considered.

• Non-emergency Medicaid for non-pregnant adults over age 21 would be considered.

Prior receipt of benefits is also one factor in the public charge test.

The new rule sets out criteria for considering several factors in assessing the likelihood that a person will need more than 12 months of public benefits in the aggregate over a 36-month period in the future.

The rule expands on criteria for other factors such as the applicant’s age, health, household size, education, employment, and financial resources.

• The rule allows immigration officers to consider English proficiency (positive) or lack of English proficiency (negative), a person’s credit score, medical conditions and whether the person has access to private health insurance.

The rule will require immigrants to attach a new form, I-944, Declaration of Self-Sufficiency, when applying for a green card in addition to the many other forms already required as part of an adjustment application.

Negative and positive factors

The rule creates “heavily weighted” factors, both negative and positive.

It is a heavy negative mark if the immigration officer believes there is - no reasonable prospect of future employment.

It is a heavy negative to receive more than 12 months of public benefits in the aggregate over the 36-month period of time before submitting the application for adjustment or admission.

• It would be a heavy negative if someone has a serious medical condition, is uninsured and does not have sufficient resources to pay for medical cost.

Heavy positive factors would include having a household income of at least 250% of the federal poverty level.

English speaking ability counts as a skill and would be weighed positively or negatively.

It is not clear how an immigration officer should decide a case that has both some heavy negative factors and some heavy positive factors. If there is a scale of importance that seems to be at the discretion of the immigration officer reviewing the application.

• The process to identify someone’s likelihood to use benefits is flawed.

It is inaccurate to say that someone who doesn’t speak English and who lacks a high school degree is twice as likely to use benefits compared to someone who has a high school degree but doesn’t speak English.

USCIS Common questions

For purposes of determining inadmissibility, “public charge” means 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.

A number of factors must be considered when making a determination that a person is likely to become a public charge.

♦ An individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (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."

• Public charge does not apply in naturalization proceedings.

If an individual is inadmissible, admission to the United States or adjustment of status is not granted.

Cash assistance for income maintenance and institutionalization for long-term care at government expense may be considered for public charge purposes.

However, receipt of such benefits must still be considered in the context of the totality of the circumstances before a person will be deemed inadmissible on public charge grounds.

♦ Public benefits that are received by one member of a family are also not attributed to other family members for public charge purposes unless the cash benefits amount to the sole support of the family.

Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:

Supplemental Security Income (SSI) under Title XVI of Social Security Act

  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act--the successor to the AFDC program)
  • Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge
  • Federal, state and local cash benefits for income maintenance (often called "General Assistance" programs)
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution).
  • Non-emergency Medicaid for non-pregnant adults over age 21
  • Section 8 Project-Based Rental Assistance
  • Subsidized public housing
  • Will consider whether an individual has applied for, been approved for, or received public benefits
  • Note: costs of incarceration for prison are not considered for public charge determinations

Non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination.

Special-purpose cash assistance is also generally not taken into account for purposes of public charge determination.

Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination.

Non-cash or special purpose cash benefits that are not considered for public charge purposes include:

  • Medicaid ⇔ New rules will consider non-emergency Medicaid for non-pregnant adults over age 21
  • 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, and emergency medical services) other than support for long-term institutional care
  • Children's Health Insurance Program (CHIP)
  • Will not consider benefits received by or applied for on behalf of other family member
  • Will not consider benefits received by active duty or reserve members and their families
  • Nutrition programs, including Food Stamps ⇔ New rules will consider 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 ⇔ New rules will consider Section 8 housing assistance and subsidized housing
  • 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)

State and local programs that are similar to the federal programs listed above are also generally not considered for public charge purposes. ⇔ New rule will consider state and local cash benefits programs for income maintenance.

Please be aware that states may adopt different names for the same or similar publicly funded programs. It is the underlying nature of the program, not the name adopted in a particular state, which determines whether or not it should be considered for public charge purposes.

In California, for example, Medicaid is called "Medi-Cal" and CHIP is called "Healthy Families." These benefits are not considered for public charge purposes.

♦ In addition, and consistent with existing practice, cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, among other forms of earned benefits, do not support a public charge determination.

Unemployment compensation is also not considered for public charge purposes.

Form I-864, Affidavit of Support, is a form that a qualified individual (a sponsor) files on your behalf when you are applying for a Green Card or immigrant visa under certain family-related provisions.

• The purpose of the form is to show that you have the financial means to live in the United States without needing welfare or financial benefits from the U.S. government.

The law requires that the sponsor demonstrate that he or she is able to assist you financially.

The sponsor must show that he or she has an annual income of not less than 125 percent of the federal poverty level. The federal poverty guidelines are set once a year, and can be found on Form I-864P, Poverty Guidelines.

The following individuals are required to file an Affidavit of Support completed by their sponsor:

Immediate relatives of U.S. citizens (including orphans)

All family based preference categories:

  • First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
  • Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
  • Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
  • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
  • Employment based immigrants who will work for a relative or for a firm in which a U.S. citizen or a permanent resident relative holds a 5 percent or more ownership interest

Failure to file a qualifying Affidavit of Support showing sufficient income levels, when required, makes you inadmissible.

Note: Individuals whom the USCIS has approved as self-petitioning widows or widowers or battered spouses and children are exempt from filing an Affidavit of Support but must still file Form I-864W, Intending Immigrant’s Affidavit of Support Exemption.

Whether a person is likely to become a public charge is usually considered when someone is trying to become a permanent resident (get a Green Card).

• It is also considered when someone applies for certain non-immigrant or other temporary benefits, for example by extending non-immigrant status within the United States.

There are certain groups of people who are either exempt from public charge, or may get a waiver for public charge when applying for a Green Card or other benefits with USCIS. These include:

  1. Refugees
  2. Asylum applicants
  3. Refugees and asylees applying for adjustment to permanent resident status
  4. Amerasian Immigrants (for their initial admission)
  5. Individuals granted relief under the Cuban Adjustment Act (CAA)
  6. Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
  7. Individuals granted relief under the Haitian Refugee
  8. Immigration Fairness Act (HRIFA)
  9. Individuals applying for a T Visa
  10. Individuals applying for a U Visa
  11. Individuals who possess a T visa and are trying to become a permanent resident (get a Green Card)
  12. Individuals who possess a U visa and are trying to become a permanent resident (get a Green Card)
  13. Applicants for Temporary Protected Status (TPS) Certain applicants under the LIFE Act Provisions

• Has received one or more public benefits for more than 12 months in the aggregate within the prior 36 months.

• Not a full-time student and is authorized to work, but is unable to demonstrate employment, recent employment, or a reasonable prospect of future employment.

• Has a medical condition that requires extensive treatment or institutionalization and is uninsured and does not have sufficient resources to pay for medical costs related to the condition.

• Previously found inadmissible or deportable on public charge grounds.

• Household has financial assets/resources of at least 250% of the FPL.

• Authorized to work or employed with an income of at least 250% of FPL.

• Individual has private insurance that is not subsidized by the Affordable Care Act tax credits.

USCIS Public Charge Revised Forms and Updated Policy Manual

♦ Note: The information on this page has not been updated by USCIS. However, some of the content may still be useful for gaining a better understanding of this policy change.

Source: USCIS