Several months ago, we published a blog post raising the alarm about a new proposed public charge rule that would allow the Department of Homeland Security (DHS) to deny green cards or temporary visas to foreign nationals who were determined to be likely to receive certain government benefits in the future—in other words, to become a “public charge.” On August 14, 2019, DHS published a final rule regarding this matter, which is scheduled to take effect on October 15, 2019. Here’s what you need to know about the new public charge rule.
First, one piece of good news. The concept of being a “public charge” and the new rule do not apply to those in the naturalization process, the process by which lawful permanent residents (green card holders) become citizens of the United States. The public charge rule does address the issue of inadmissibility. U.S. law says that a person who is “likely to become a public charge” is inadmissible to the country. This law applies to people who are looking to be admitted to the United States or seeking an adjustment of their immigration status.
Immigration officials currently decide whether someone is likely to become a public charge by looking at whether there is a likelihood that they will become “primarily dependent” on government support, such as cash assistance or long-term medical care.
The Immigration and Naturalization Act (INA) sets forth a number of factors for making this determination. Officials must also rely on an affidavit of support signed by the immigrant’s sponsor, who states that they will provide financial support for the immigrant. Immigration officials also look at whether the immigrant has already used government support such as Temporary Assistance for Needy Families (TANF, commonly called “welfare”), Supplemental Security Income (SSI), or received long-term institutional care at government expense. Immigrants who have received these types of government aid need to show they are unlikely to need them in the future.
Under current policy. Use of publicly-funded nutrition, housing, or health care do not negatively affect the public charge analysis. However, as of October 15, 2019, that is due to change for adjustment of status applications postmarked on or after that date (existing policy will still be in effect for previously pending or postmarked applications).
People currently living abroad who are looking to enter the United States apply to do so at consulates in their countries. The officers at the consulates consult the Foreign Affairs Manual for guidance as to how to make decisions regarding entry into the United States. This process includes investigation into the ability of the applicant’s sponsor to provide support as promised under the affidavit of support.
The test for whether an immigrant is likely to become a public charge will still be forward-looking, but the new rule defines what a public charge is. Rather than determining whether a person is likely to be “primarily dependent” on the government in the future for income support, a public charge is redefined as someone who receives any number of public benefits for more than a total of twelve months over a thirty six month time period. Furthermore, an applicant who receives two different types of benefits in one month is considered to have received two months’ worth of benefits.
The new rule also includes more publicly-funded programs for consideration when determining whether someone is likely to become a public charge. These programs include:
In addition, any type of cash aid, including state and local programs, can count against an applicant in a public charge determination—not just TANF and SSI, as previously.
There is some good news, or at least the news isn’t as bad as it could be: Medicaid benefits received by applicants while they are pregnant, or under age 21, are not considered in the public charge determination. Likewise, benefits received by an applicant’s family members are not considered against the applicant. Immigrants may also continue to access emergency medical care and disaster relief without it counting against them.
Although the public charge determination looks at whether a person is likely to be a public charge in the future, past receipt of benefits is one factor in the determination. There are both positive and negative factors considered in the public charge determination, with some being weighted more heavily than others. A lack of proficiency in the English language, a history of medical conditions, and past use of immigration fee waivers are all negative factors. Proficiency in English and availability of private health insurance are positive factors. A history of receiving more than twelve months’ worth of public benefits in the thirty six months prior to the application is a heavily-weighted negative factor.
If you or a loved one needs to apply for an adjustment of status, you should be aware of the new public charge rule and how it could affect you. Before applying for adjustment of status, you should speak with an experienced Maryland immigration attorney. We invite you to contact our law office to schedule a consultation.