Public Charge Rule and Health Insurance Proclamation Remain on Hold by Courts

Last year we reported that a nationwide injunction temporarily placed the public charge rule on hold. The rule is being challenged in several lawsuits based on its potential to discriminate against immigrants from poorer nations. While we cannot predict the timeline for implementation, we can give you a sneak peek at the types of information we may be collecting in the future if the public charge rule remains unchanged and is eventually implemented.

On October 11, 2019 the Department of State issued an interim final rule to align with the Department of Homeland Security version of the public charge rule. The new rule expands on how consular officers determine whether an alien is ineligible for a visa because of his or her likelihood to become a charge and updates definitions of public charge, public benefit, household and receipt of a public benefit. The DOS rule was also developed “to avoid situations where a consular officer will evaluate an alien’s circumstances and conclude that the alien is not likely at any time to become a public charge, only for the Department of Homeland Security to evaluate the same alien when he seeks admission to the United States on the visa issued by the Department of State and finds the alien inadmissible on public charge grounds under the same facts.”

With this alignment of rules, hypothetically immigrants applying for visas abroad should be subjected to the same standards as those applying from within the United States. However, the Department of State is first seeking approval to utilize a new form before implementing any changes to internal processes and advises visa applicants to attend visa interviews as scheduled.

New Forms

USCIS released new editions of forms for H-1B workers, green card applicants, and their dependents only a few days ahead of the October 15th effective date of the public charge rule. The forms were released without allowing time for review, nor a grace period for the new forms to be implemented. Prior to the forms release, the American Immigration Lawyers Association (AILA) filed a separate lawsuit on Monday attempting to “ensure a workable transition over to new forms.” AILA President Marketa Lindt stated that the lack of notice “places unacceptable and unnecessary burdens on our communities and the workforce.” All forms are on hold due to the nationwide injunction.

The Department of State has not released any draft forms to-date, but USCIS released new versions of the following forms:

  • I-129 Petition for a Nonimmigrant Worker
  • I-539 Application to Extend/Change Nonimmigrant Status
  • I-539A Supplemental Information for Application to Extend/Change Nonimmigrant Status
  • I-485 Application to Register Permanent Residence or Adjust Status
  • I-944 Declaration of Self-Sufficiency (NEW)
  • I-912 Request for Fee Waiver

Under the new statute, DOS and DHS will consider age, health, family status, assets, resources, and financial status, and education and skills to determine whether an individual is likely to become a public charge. When DHS was enjoined from enforcing the rule, all updated public charge forms were removed from the USCIS website.

A new form, Form I-944, will be utilized for green card applicants filing Form I-485 (Application to Register Permanent Residence or Adjust Status) to prove they are not subject to the public charge ground of inadmissibility. The form will collect information based on the positive and negative factors related to an individual’s age, health, family status, assets, resources and financial status, education and skills, prospective immigration status and period of stay. The draft form instructions also state that USCIS could request certain individuals filing Form I-539 (Application to Extend/Change Nonimmigrant Status) or Form I-129 (Petition for a Nonimmigrant Worker) to also file the I-944 form, whether a principal or derivative beneficiary.

What are the negative factors that would weigh heavily in the determination that an individual is likely to become a public charge (and therefore inadmissible or ineligible to adjust or extend status)?

  • The alien is not a full-time student and is authorized to work but cannot show current employment, recent employment history, or a reasonable prospect of future employment.
  • The alien has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15, 2019.
  • The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition.
  • The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.

What are the positive factors that would weigh heavily against a public charge determination?

  • The alien has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for his or her household size.
  • The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of his or her household size.
  • The alien has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.

What benefits are exempted from the rule?

  • Emergency medical assistance
  • Disaster relief
  • National school lunch programs
  • Foster care and adoption
  • Student and mortgage loans
  • Energy assistance
  • Food pantries and homeless shelters
  • Head Start
  • Benefits received by noncitizen members of the U.S. armed forces serving in active duty or in Ready Reserve components (and by service member’s spouse and children)

Examples of benefits not considered:

  • Receipt of Medicaid for the treatment of an emergency medical condition
  • Services or benefits funded byMedicaid but provided under the Individuals with Disabilities Education Act
  • School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law
  • Medicaid benefits received by an alien under 21 years of age
  • Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

 Tips for Visa Applicants to Avoid Classification as a Public Charge

As mentioned above, the public charge rule outlines some positive and negative factors in determining whether an individual is likely to become a public charge. Immigrants can take steps to improve their applications and petitions by evaluating where they may fall short of the new government standards. Below are some tips to prepare for the rule’s implementation:

  1. Maintain unsubsidized health coverage. Existing medical conditions without proof of insurance could be a red flag on your application. Maintain private health insurance or coverage through your employer to demonstrate you can pay for treatment if required. We also recently reported on a new Presidential Proclamation that requires proof of health coverage for immigrants entering the U.S. While this could also be challenged in court, individuals traveling abroad should carry a copy of their insurance card as a precautionary measure.
  2. Minimize financial liabilities. Individuals should carefully review all bills and financial obligations, as well as check their credit reports for accuracy. The public charge rule considers mortgages, car payments, school loans, credit card debt, and other liabilities that may influence an individual’s ability to cover all of their obligations.
  3. Obtain higher education or professional skills. One of the determining factors USCIS may use to determine public charge likelihood is the level of education and professional skills of an individual. Earning a degree at a higher education institution or working in a professional position helps demonstrate your continued economic and academic contributions to the United States.
  4. Increase household income to 250% of the Federal Poverty Guidelines. It may be difficult to boost your household income in the short-term, but it is worth taking time to review your professional and financial goals and consider strategies to exceed the federal poverty levels for your household size.
  5. Improve English language proficiency. Obtaining a completion certificate for an English as a Second Language (ESL) or otherwise demonstrating English proficiency is recommended prior to reaching the green card stage.

Stay tuned for more tips on improving your immigrant and nonimmigrant visa applications and petitions in preparation for the public charge rule.

Presidential Proclamation: Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System

An October 2019 presidential proclamation claims to protect the U.S. healthcare system and American taxpayers from the “burdens of uncompensated care” by preventing entry into the United States of “certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare.” The proclamation claims that an immigrant alien will financially burden the U.S. healthcare system unless covered by approved health insurance within 30 days of entry in the United States or unless the individual can prove he or she has the financial resources to pay for “reasonably foreseeable medical costs.”

Approved healthcare coverage includes:

  • An employer-sponsored plan, including a retiree plan, association health plan, and coverage provided by the Consolidated Omnibus Budget Reconciliation Act of 1985;
  • An unsubsidized health plan offered in the individual market within a State;
  • A short-term limited duration health policy effective for a minimum of 364 days or until the beginning of planned, extended travel outside the United States;
  • A catastrophic plan;
  • A family member’s plan’
  • A medical plan under chapter 55 of title 10, United States Code, including coverage under the TRICARE program;
  • A visitor health insurance plan that provides adequate coverage for medical care for a minimum of 364 days, or until the beginning of planned, extended travel outside of the United States;
  • A medical plan under the Medicare program; or
  • Any other health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee.

For immigrants over the age of 18, Medicaid coverage is not considered an approved healthcare plan. It’s also important to note that only unsubsidized plans offered in the individual market are approved under the proclamation. Subsidized coverage such as Medicaid, Children’s Health Insurance Program (CHIP), or other insurance plans with premium tax credits may be not be approved under the proclamation’s terms.

While this proclamation was set to become effective on November 3, 2019, like the public charge rule it faces legal scrutiny and court challenges just as other immigration policy announcements have encountered over the past couple of years. We could see court action on the proclamation in 2020. We will keep you posted as any new developments occur.