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The Proposed “Public Charge” Rule: What Has Changed

Dollars Labelled Government Assistance for Public Charges

On September 22, 2018, the Department of Homeland Security issued a notice of proposed rulemaking that got very little attention in the media, but which could seriously affect immigrants to the United States, as well as employers and temporary visa holders. This proposed “public charge” rule would be possibly the most extensive change to immigration policy during the Trump administration to date.

What is the public charge rule? It has long been the law that the United States can deny temporary visas and lawful permanent resident (green card) status to any person who “is likely at any time to become a public charge;”—in other words, if you are likely to pose a financial burden to the country, you can be denied admission or the right to stay.

Initially, “public charge” wasn’t defined, but a sworn affidavit of financial support could be required from a sponsor in order to assure that a foreign national would not become a public charge. In 1999, the government clarified that a public charge is a foreign national who was likely to become “primarily dependent on the government for subsistence,” such as government benefits like welfare, SSI, or financial assistance for long-term care in a facility.

As a practical matter, the likelihood of becoming a public charge has not prevented a large number of people from being granted visas or green cards. There are two reasons for this. The first is that under federal law, non-citizens are already barred from accessing welfare, SSI, and non-emergency Medicaid. The second reason is that most applicants for a green card must, by law, have a sponsor who attests to their own willingness to give the applicant financial support and prevent them from becoming a public charge. Currently, so long as you have a sponsor with income greater than 125% of the federal poverty guidelines (at present, $20,575 for most couples without children), you will not be denied a green card or visa for being “likely to become a public charge.”

Proposed Changes to the Public Charge Rule

Under the proposed changes to the public charge rule, the Department of Homeland Security (DHS) would deny temporary visas and green cards to any foreign national who is deemed likely at any time in the future to receive any of an expanded list of government benefits, including:

  • Food stamps
  • Federal housing and rental assistance
  • Non-emergency Medicaid
  • Medicaid Part D healthcare subsidies
  • Welfare
  • SSI

Even if you are eligible for these programs, using them means that DHS might, in the future, deny your visa application or green card application.

What’s worse for foreign nationals is that this is not the only criterion an immigration officer can use to determine if someone is likely to become a public charge. The following potential “negative factors” could be used to deny you a visa or green card, if you:

  • Previously or currently use certain public benefits
  • Are older than 61
  • Are younger than 18
  • Have any medical condition that could interfere with work or schooling
  • Do not have sufficient resources to cover your medical condition
  • Do not have private health insurance
  • Have several children or other dependents
  • Have financial liabilities
  • Have a low credit score or bad credit
  • Have no employment history
  • Do not speak English
  • Did not graduate from high school
  • Do not have “adequate education and skills” to get and keep a job
  • Have received an application fee waiver from DHS
  • Have a sworn financial sponsor, but DHS feels your sponsor is unlikely to follow through on their obligations.

If you are reading this list, and thinking that almost everyone you know has one or more of these criteria that apply to them, you are beginning to understand how sweeping the changes to this long-standing law are, and what it could mean for foreign nationals who want to come to the United States, or stay here.

Under these criteria, for instance, about half of current applications for a green card by a foreign national married to a U.S. citizen could be denied. Married couples could be forced to live outside of this country, or to live apart, not to mention the separation of other family members.

If You Are Concerned About the New Public Charge Rule

If you are concerned that the proposed public charge rule will affect your status or that of a family member, it is better to plan early than to wait until you are in a crisis. We encourage you to contact our law office to consult with an experienced Maryland immigration attorney about any questions you may have about the proposed law and how it could affect you and your loved ones.

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Categories: Immigration Law