Need to know more about the public charge rule?

Source: Chris Setz-Kelly

Historically, the U.S. government has not permitted individuals who are likely to become public charges to be granted permanent residency and other forms of lawful status, if in the opinion of an immigration officer, it is likely that the applicant will become a public charge. On October 15, 2019, the U.S. Citizenship and Immigration Services (USCIS) published a new rule detailing how immigration officers will now determine if an applicant is inadmissible, meaning ineligible, for permanent residency and some other forms of status.  Although implementation of the rule was initially blocked by an injunction, the injunction was lifted by a recent Supreme Court decision.  As a result, USCIS is now enforcing the new rule.

The rule significantly complicates the decision-making process for determining who is a public charge.  At its core, the rule now increases the focus on the current age, employment, finances, health, and other factors of the applicant.  Whereas before, applicants could typically avoid a public charge determination if a family member or friend could document sufficient income on an affidavit support, the filing of an affidavit of support no longer in itself prevents an applicant from being denied a benefit as a public charge.

The rule defines a public charge as one who receives a public benefit “for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).  It is important to know that USCIS will only consider some public benefits when determining if an applicant is a likely to become public charge.  Those benefits are:

1. Supplemental Security Income (SSI);
2. Temporary Assistance for Needy Families (TANF);
3. Any other federal, state or local cash benefit programs (i.e., general assistance);
4. Supplemental Nutrition Assistance Program (SNAP, i.e., food stamps);
5. Section 8 Housing Assistance under the Housing Choice Voucher Program;
6. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
7. Medicaid; and
8. Public Housing under Section 9 of the U.S. Housing Act of 1937.

Additionally, USCIS will not count public benefits that the applicant receives on behalf of their children such as SNAP or Medicaid; so parents intending to apply for their green card should not give up these benefits that they receive for their children.  Additionally, benefits such as Emergency Medicaid and Unemployment Compensation are not counted towards the public charge determination.  For immigration applicants under 21 years of age, benefits that they personally receive are also not considered.

The new rule also requires that USCIS evaluate the “totality of the circumstances” to determine if the applicant will become a public charge in the future.  Please note that the rule is prospective, meaning USCIS will determine if you are more likely than not to become a public charge by receiving more than 12 months of public benefits in a future 36-month period.  The rule specifically lists seven factors that will be afforded some weight.  They include: 1) the age; 2) health; 3) household size; 4) assets, resources, and finances of the applicant; 5) education and skills of the applicant; 6) the length of status sought; and 7) the filing of an affidavit of support.  How the rule applies each of these factors is nuanced, and will differ depending on whether one is applying for a green card as opposed to merely changing from one non-immigrant status to another.  As a result, it will benefit any potential applicant to consult with an immigration attorney before applying for permanent residency and other statuses within the United States.

Importantly, the rule also identifies four (4) negative factors and three (3) positive factors that it will heavily weigh in making public charge decisions.  The four negative factors are:

• The applicant is not a full-time student and is authorized to work, but is unable to demonstrate recent employment history, or a reasonable prospect of future employment;
• The applicant has received 12 months of any of the above mentioned public benefits in the aggregate in the preceding 36 months;
• The applicant has been diagnosed with a medical condition that is likely to require extensive medical treatment, or institutionalization, or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work; and… The applicant 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 such medical condition; or
• The applicant has previously been found inadmissible or deportable by an Immigration Judge or the Board of Immigration Appeals.

The three (3) positive factors are:

• The applicant has household income, assets, resources, and support of at least 250% of the federal poverty guidelines;
• The applicant is work-authorized and currently employed at or above 250% of the federal poverty guidelines for her household size; or
• The applicant will have private health insurance for the period of law status they are seeking (note: this does not include government subsidized insurance under the Affordable Care Act).

USCIS instructs that no one single factor is outcome determinative so even if your case presents a heavily weighted negative factor, there will often be the opportunity to present evidence of positive factors to show that you will not be a public charge.

It is important to understand that the new public charge rule only applies to decisions made by USCIS.  This means that those applying for a visa from a consulate abroad through the Department of State, as well as those adjusting status with the Immigration Courts will not have their applications adjudicated under this rule.  However, both the Department of State and the Department of Justice, the agency that controls the Immigration Courts, have indicated that they will likely implement similar rules in the future.

Even if you are applying for your green card with USCIS, there are several types of applications that are exempt from public charge determinations altogether, and so applicants do not have to meet this rule’s requirements.  For example those adjusting status as asylees, refugees, special immigrant juveniles, U Visa, and T Visa holders are exempt from the public charge ground of inadmissibility.

If you are going to apply for your green card, or a change of non-immigrant status, with USCIS in the future there are several things you can do to increase the likelihood that you will not be found to be a public charge.

First, most applicants will have to submit an affidavit of support from their petitioning family member.  Determine now if your petitioning family member has sufficient income to meet the 125% federal poverty guideline threshold to serve as your sole sponsor.  If they do not, try to identify another family member or friend who makes at least 125% of the federal poverty guideline for their household size (including yourself as a family member).  Secondly, if you have not regularly filed taxes in the United States, and have a work history in the U.S., contact a tax preparer and file a tax return for each year that you were required to do so.  Please note that even those who are paid in cash have a legal obligation to self-report their income, file a tax return, and pay the appropriate amount of tax based on their income.  Third, if you are receiving public benefits on your own behalf, consider terminating them now if they are not crucial to maintaining a basic standard of living, so as to avoid a public charge finding when you apply to USCIS.  This is particularly important if you are receiving a benefit now by mistake that you should not have qualified for.

Although this new rule has made the process for applying for a green card and other types of status in the United States more difficult, it will still be feasible for a majority of potential applicants to be approved by USCIS if they properly document how they will not become dependent on public benefits in the future.  For additional information, or assistance in obtaining lawful status in the United States, please contact our office to schedule a consultation today.