Public Charge Rule Increases Hurdles for Legal Immigration

 

The U.S. Department of Homeland Security (DHS) published the final rule titled “Inadmissibility on Public Charge Grounds” this week, changing how DHS determines if an individual is “likely at any time to become a public charge.” Thirteen states have joined to file a federal lawsuit, claiming that the rule has unlawfully expanded “the term ‘public charge’ – a previously rare designation that triggers exclusion from the United States – in a manner that is contrary to congressional intent and agency interpretation that has prevailed for nearly 70 years, and contrary to two 1996 federal statutes.” If the federal courts don’t take action within the next 60 days, the rule is set to become effective on October 15, 2019. Applications and petitions filed prior to October 15, 2019 will be adjudicated using the current regulations and guidance.

The new rule redefines many of the terms associated with the previous public charge standards. In an interview with NPR’s Morning Edition, acting USCIS Director Ken Cuccinelli undertook his own revisions to the famous Emma Lazarus poem engraved on a bronze plaque at the Statue of Liberty, stating “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”

The current regulations interpret a public charge to be “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.” The new rule acknowledges that non-cash benefits were not previously included and in order to be self-sufficient, the rule redefines public charge:

“to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months.) This rule defines the term ‘public benefit’ to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.”

What does this mean for individuals seeking permanent residence?

While some categories, such as asylees, refugees, or other vulnerable populations (including T and U visa recipients) are exempted from the inadmissibility, other individuals applying for green cards, whether family or employment-based, may be scrutinized under the new public charge rule. The rule outlines a number of positive and negative factors that DHS will consider when determining if an alien is inadmissible.

Example: It is a positive factor if the alien is between the ages of 18 and 61, but negative if he or she is younger than 18 or older than 61. A heavily weighted negative factor is when an individual has work authorization, but cannot demonstrate current employment, recent employment history, or a reasonable prospect of future employment.

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)

What are some examples of benefits not considered by the new standards?

  • 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.

Stay tuned for more information and tips on how to prepare for the rule’s effective date of October 15, 2019.