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Author: Christopher Richardson

On Monday, the Department of Homeland Security (DHS) announced its final changes to the public charge ground of inadmissibility.  The regulations are over 800 pages long and represent a vast expansion of the public charge ineligibility.

SUMMARY/BOTTOM LINE:  Do Not Panic.  First, the rules do not go into effect until October 15, 2019 so anyone who used these services prior to that date or has a current application in the system is unaffected.  Second, mere use of the benefits does not lead to an automatic denial.  Instead, use of these programs is considered a “negative factor” in a long list of positive and negative factors to be analyzed by officers.  Third, there will be a wave of lawsuits, challenges, and likely injunctions against all or part of this new regulation.  That is ultimately why the last USCIS Director was fired (because he was dragging his feet and knew this likely wasn’t going to survive in its current form).  Fourth, please do not read the newspapers or listen to the media on this.  The people who write these stories have no, or limited background knowledge of immigration and their goal is always click bait and panic.

What Is The Public Charge?

“Likely at any time to become a public charge” is ground for USCIS officers domestically and Visa officers abroad to block entry of a visa applicant who they believe will use government benefits.  The law is in the Immigration and Nationality Act § 212(a)(4).  The law itself is hundreds of years old but after a 1999 regulation by USCIS, it has largely been dormant. Prior to the 1999 regulation, upwards of 15-20% of all immigrant petitions were rejected due to the public charge inadmissibility.

Under the law, officers look at the ‘totality of the circumstances” – (your age, your income, your personal financial situation) to determine whether you are likely to come to the U.S. and use government benefits.  Before the new regulation, prior use of three cash assistance programs – Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF) (welfare), and state general relief or general assistance—as well as a Medicaid program that covers institutionalization for long-term car, were seen as the only “negative” factors in the “totality of the circumstances” test.

What Are the Rules Now?

The term “likely at any time to become a public charge” has been expanded and new positive and negative factors have been added to the “Totality of the circumstances” test.  First, it is to be applied to those who are more likely than not to receive any of these benefits for more than 12 months in the aggregate within any 36-month period.   Second, DHS has expanded the list of identified programs that can be considered when applying the public charge “totality of the circumstances” test.  Use of non-emergency Medicaid; Supplemental Nutrition and Assistance Program (SNAP, formerly food stamps); Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing AFTER October 15, 2019 will now be considered.  Benefits received by the applicant’s U.S. citizens children or other family members are not considered in determining whether the applicant is likely to become a public charge.

How Will the Officer Analyze My Situation?

In determining public charge inadmissibility, the regulation shifts attention away from the petitioning sponsor’s income as reported on the affidavit of support and re-directs it to the five statutory factors: the applicant’s age, health, family status, assets/resources/financial status, and education/skills. Adjudicators will assign weight—negative and positive, as well as heavily negative and heavily positive—to these five factors to determine whether the applicant passes the public charge test.  However, to overcome this, USCIS and State Department will allow an applicant to post a bond and if, after a certain number of years, you do not use government services, the money will be paid back.

Are There New Forms?

Yes, all adjustment of status applicants will need to be complete a declaration of self-sufficiency form and support it with documentary evidence called a Form I-944.

When Does This Go Into Effect?

The new public charge rule and procedure will affect applications filed or postmarked (or, if applicable, submitted electronically) on October 15, 2019. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the current public charge standard.  So for cases and people who used these services prior to October 15, 2019, it will have no effect. Further, several groups plan to sue and seek injunction block all or parts of it and that might effect timing.

Will This Effect Both Adjustment of Status and Consular Processing?

Although the published rules refer to public charge inadmissibility adjudications by USCIS, the Department of State is expected to adopt these same standards to apply to those applying for immigrant and nonimmigrant visas abroad.  In fact, the Department of State in several posts have already been using the public charge.

So If Use One of These Government Programs, Will I Be Rejected as a Public Charge?

Not necessarily.  This is about the “Totality of the circumstances.”  If you, for example, used Medicaid, that would count as a point against you BUT if you spoke English, only used it for a brief period, and have other evidence that you are “self-sufficient” those will be points in your favor to overcome your use of Medicaid.  If you have a strong credit score, are authorized to work, and have strong savings, those will be points in your favor.  Each case will be unique in how it is analyzed and our law firm partners will ensure that all applicants are well-prepared.

I used Obamacare or had an emergency and received medical assistance.  Does this count against me? 

No.  The final rule does not include receipt or potential receipt of the following benefit programs:

  • Emergency medical assistance
  • Disaster relief
  • National school lunch or school breakfast programs
  • Foster care and adoption
  • Head Start
  • Child Health Insurance Program
  • Earned Income Tax Credit or Child Tax Credit

As time goes on and the program further develops, we’ll be able to provide more answers to more questions.  In the meantime, we ask that you be patient.

 

Chris Richardson & the BDV Solutions Team