A large component of U.S. immigration law since its inception has been the idea that immigrants seeking to become legal permanent residents and citizens must demonstrate their ability to care for themselves without becoming public charges of the State. In the past, this rule has been quite ambiguous. To combat this, DHS recently clarified the rules of inadmissibility of public charges.
On August 14, 2019, the U.S. Department of Homeland Security (DHS) clarified it’s rules on Inadmissibility of Public Charge Grounds, which codified regulations governing the application of the public charge inadmissibility ground under INA section 212(a)(4).
The rule changes the definitions of public charge and public benefits and changes the standard that DHS uses when determining whether an immigrant is likely to become a “public charge” and thus inadmissible and ineligible for admission or adjustment of status.
When does this new rule apply?
This rule change specifically applies in the following three scenarios:
- When an immigrant is seeking to adjust his or her status to become a lawful permanent resident (green card holder) in the U.S.
- When an immigrant holds a nonimmigrant visa and seeks to extend their stay in the same nonimmigrant classification.
- When an immigrant holds a nonimmigrant visa and seeks to change their status to a different nonimmigrant classification.
What will DHS consider to be public benefits when considering eligibility?
As part of its determination, DHS will consider the following public benefits when considering eligibility:
- Any federal, state, local, or tribal cash assistance for income maintenance
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
- Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
- Section 8 Housing Assistance under the Housing Choice Voucher Program
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
- Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
- Federally funded Medicaid (with certain exclusions)
Note that DHS has stated that non-cash benefits are generally not taken into account for the public of a public charge determination.
What are some examples of non-cash benefits that are NOT CONSIDERED public charge under this new rule?
Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination. Non-cash or special-purpose cash benefits that are not considered for public charge purposes include:
- Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care
- Children’s Health Insurance Program (CHIP)
- Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
- Housing benefits
- Child care services
- Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
- Emergency disaster relief
- Foster care and adoption assistance
- Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education
- Job training programs
- In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
State and local programs that are similar to the federal programs listed above are also generally not considered for public charge purposes.
What has DHS said it will not consider when determining eligibility?
DHS clarified it will only apply the rule when the applicant received the benefit him or herself or where the applicant is the listed beneficiary of the public benefit. DHS will not attribute receipt of public benefit by one or more members of the applicant’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit.
In other words, if your family member is participating in Medicaid, if your child is receiving Medicaid, or if your family members is receiving supplemental security income, this will not be counted against you in your application. This rule only applies if you receive this public benefit as well.
In making this determination, DHS stated it will not consider:
- The receipt of Medicaid for the treatment of an emergency medical condition;
- Services or benefits funded by Medicaid 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; or
- Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.
What time period must an immigrant receive public assistance for them to become ineligible under this rule?
DHS has stated that if the immigrant receives public benefits for more than 12 months in aggregate in any 36-month period, such that receipt of two benefits in one month counts as two months.
How will DHS determine if someone is “likely to become a public charge”?
DHS stated that it must weigh the negative and positive factors that may contribute to an immigrant’s potential to “likely at any time become a public charge”. Thus, DHS must consider the applicant’s:
- Family Status
- Assets, resources, and financial status;
- Education and skills;
- Prospective immigration status;
- Expected period of admission; and
- Sufficient form I-864.
Finally, DHS said the following factors weigh heavily in favor of finding an immigrant likely at the time to become a public charge:
- The immigrant is not a full-time student is authorized to work but cannot show current employment, recent employment history, and a reasonable prospect of future employment
- The immigrant 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 immigrant 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 immigrant 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 factors help an immigrant demonstrate he or she is not likely to become a public charge?
- The immigrant 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 immigrant 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 immigrant 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.
Are there any exempt parties to the rule?
There are certain groups of people who are either exempt from public charge, or may get a waiver for public charge when applying for a Green Card or other benefits with USCIS. These include:
- Asylum applicants
- Refugees and asylees applying for adjustment to permanent resident status
- Amerasian Immigrants (for their initial admission)
- Individuals granted relief under the Cuban Adjustment Act (CAA)
- Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA)
- Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA)
- Individuals applying for a T Visa
- Individuals applying for a U Visa
- Individuals who possess a T visa and are trying to become a permanent resident (get a Green Card)
- Individuals who possess a U visa and are trying to become a permanent resident (get a Green Card)
- Applicants for Temporary Protected Status (TPS)
- Certain applicants under the LIFE Act Provisions
Are military service members who are actively enlisted or serving in the U.S. armed forces subject to this rule?
No. DHS clarified that this rule does not consider the receipt of designated public benefits received by an immigrant who is serving actively in the U.S. armed forces or in any Read Reserve component of the U.S. armed forces to be part of the group who receives public benefits by spouse and children.
If you are considering adjusting your status or extending or changing your nonimmigrant visa, you should be sure to have an experienced immigration attorney by your side to help advise you on the public charge rule change and ensure your application and the process goes smoothly for you. To set up an appointment or meet with an experienced immigration attorney, contact our office at 512-474-4445.