We recently wrote about the Trump Administration’s policy change regarding how U.S. immigration officials will determine who could be deemed “inadmissible” on “public charge” grounds. Now that the policy shift has been published, we provide some more information here.
Please note that the rule is very long and contains lots of details and complexities. This posting is meant to provide a general overview. This posting is not legal advice.
Trump’s new rule is set to take effect on October 15, 2019. Lawsuits challenging the new policy have already been filed, and more lawsuits are likely. So, we don’t know yet whether the policy change will actually take effect on October 15, 2019 or not. For now, it’s fair to say that it might take effect on that date, and we need to be prepared for it.
Who is affected?
Let’s discuss who is affected by the new rule, and who is not. The new rule applies to persons who are applying for permanent resident status, otherwise known as “green card” status. Persons apply either inside the United States or at a U.S. consulate in a country outside the United States. The new rule also applies to persons who have a non-immigrant visa and who are seeking to extend their non-immigrant status or change it from one category to another.
The rule does not apply to persons who are already permanent residents (including permanent residents on a conditional basis who have a permanent resident card valid for two years).
It appears that the new rule could apply to permanent residents who are returning to the United States after a trip and who are deemed to be applicants for admission to the United States. This situation could occur if a permanent resident takes a trip that lasts more than 180 days, or commits a crime either before or after taking a trip outside the United States, and certain other circumstances.
The rule also does not apply to asylees and refugees. The rule also does not apply to U.S. citizens.
Trump’s new rule states that U.S. immigration officials will only consider public benefits received directly by the person applying for permanent resident status, or where that person is listed as a beneficiary of the public benefit. If there are others in the household who are receiving public benefits, that will not cause a problem for the person applying for permanent resident status, unless he or she is listed as a beneficiary of the public benefit.
How does the new rule change things?
Under the new rule, a person is designated as a “public charge” if he or she receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period. If a person receives two different benefits in one month, that counts as two months. “Public benefits” include:
- Cash benefits for income maintenance, including any federal state, or local program such as SSI (Supplemental Security Income) and TANF (Temporary Assistance for Needy Families)
- SNAP (Supplemental Nutrition Assistance Program) (known as “food stamps”)
- Most forms of Medicaid
- Section 8 Housing Assistance
- Certain other forms of subsidized housing
The new rule will determine whether an applicant for permanent residence is likely to become a public charge at any time in the future. At a minimum, U.S. immigration officials must consider:
- Age: People under 18 or over 62 are considered to be more likely to become a public charge.
- Health: People diagnosed with a medical condition likely to require extensive treatment will be considered more likely to become a public charge.
- Education and Skills: History of employment in the last 3 years; education level, occupational skills, proficiency in English.
- Assets, Resources, and Financial Status: U.S. immigration officials will consider:
- the applicant’s credit history and credit score in the United States.
- mortgages, car loans, unpaid child or spousal support, unpaid taxes, credit card debt.
- ability to pay for medical costs associated with medical conditions.
What are the most important factors?
The new rule describes certain factors that will “weigh heavily” in the decision of whether a person is likely to become a public charge.
Heavily weighted negative factors:
- The applicant is no a full-time student and is authorized to work, but is not able to show current employment, recent employment, or a reasonable prospect of future employment.
- The applicant has received or been approved to receive one or more public benefits for more than 12 months in the aggregate within the most recent 36 months.
- The applicant has been diagnosed with a medical condition that is likely to require extensive medical treatment that will interfere with the ability to provide for oneself, attend school, or attend work, and the applicant is uninsured and is not likely to obtain insurance or to pay for medical care.
Heavily weighted positive factors:
- The applicant’s household has income and/or assets that amount to at least 250 percent of the Federal Poverty Guidelines for the household size.
- The applicant is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for the household size.
- The applicant has private health insurance, which does not include insurance for which the applicant “receives subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act.”
Public Charge Bonds
U.S. immigration officials may, in some cases, allow applicants to submit a public charge bond of at least $8,100, to be kept until USCIS grants a request to cancel the bond.
Bonds may be cancelled after the applicant:
- becomes a U.S. citizen,
- permanently departs the United States,
- dies, or
- completes 5 years as a permanent resident.
We are here for you.
The new rule is likely to mean significant changes to the process of applying for permanent resident status. As noted above, lawsuits challenging the new rule might delay or even prevent implementation of the new rule. We will continue to study the situation and we will work with you to provide high quality legal services for your immigration matter.
The term “public charge” is used in immigration law to refer to an individual who is likely to become primarily dependent on the government for support by receipt of cash assistance or long-term care at the government’s expense.
Whether someone is likely to become a public charge is considered when a person applies for a nonimmigrant or immigrant visa to enter the United States and when they apply for adjustment of status (to obtain a green card). An immigration officer must look at the totality of circumstances when deciding whether a person will become a public charge. They can consider factors such as age, health, family status, assets, resources, financial status, and education and skills in their overall analysis. Any persons who are deemed to become a public charge will not be able to obtain the immigration benefit that they are seeking.
On October 10, 2018, the Department of Homeland Security (DHS) introduced a new rule regarding public charge. The rule will soon take effect. The rule is likely to negatively affect many immigrants by expanding the list of publicly funded programs that officers can consider when deciding if someone will become a public charge. Under the proposed rule, past and current use of Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance, and the Low-Income Subsidy for the Medicare Part D prescription drug benefit can be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.
The DHS proposal would also allow immigration officers to consider English proficiency as well as use of all cash aid including state and local cash assistance programs.
Under the DHS rule, consideration would be given not only to whether an applicant was so poor that they were likely to receive certain U.S. government benefits, but also to whether the applicant received these benefits already.
While the DHS proposed rule remains under development, the Department of State has already revised the Foreign Affairs Manual to tighten the public charge analysis. U.S. consulates around the world have already been applying these new policies, which have led to an increase in visa denials. From October 2018 through July 2019, the State Department has denied 5,343 immigrant visa applications for Mexican nationals based on public charge grounds. That is up from only seven denials in 2016!
U.S. consulates in other countries have also begun denying more visa applicants on the public charge ground. For example, the U.S. consulates in Bangladesh and Pakistan refused more than 2,700 applicants in the most recent fiscal year, a sharp increase over previous years.
This new change to the public charge assessment is just one of numerous actions that the Administration has taken and will continue to pursue in order to restrict immigration to the United States. Sadly, many immigrant families are suffering the effects.