You Should Be Concerned About the New Public Charge Rule

The USCIS has released notice of a new public charge rule set to become effective on October 15, 2019. On October 11, 2019, the rule was temporarily blocked pending litigation. In the meantime, it is important to understand the rule, the implications of the rule, and avoid delaying your application for permanent residence. The new rule has spurred a panicked reaction among immigrants and their families, which has caused many to withdraw from benefits that they are eligible for. This threatens the welfare, health and wellbeing of immigrants and their families. It is important to understand exactly what benefits will not be included in the rule to avoid making decisions that in the long run, would not have affected your immigration benefit. Here’s what you need to know about the rule.

What is the Public Charge Rule?

The Public Charge Rule As It Was

Pursuant to INA 212(a)(4) an individual is inadmissible if likely to become a public charge. Furthermore, under the statute INA 237(a)(5) an individual is deportable if they become a public charge within five (5) years of their admission into the United States. Before notice of the new public charge rule, public charge only included means tested government benefits. Such benefits included Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program, long term care or institutionalization through medicaid and state or local cash assistance programs for income maintenance. In summary, enrollment in any public welfare programs could implicate a public charge if used as an immigrant’s main support. Whether a benefit is a public charge has traditionally been considered on a case by case basis.  The circumstances of the particular individual has played a large role in determining a public charge. For instance, there were certain exceptions to the public charge rule. Such exceptions to the public charge rule included medicaid and emergency medicaid (except for long term care medicaid), health insurance, children’s health insurance programs (CHIP), food and housing assistance programs, education and childcare assistance, earned cash assistance and unemployment.

Traditionally, when an individual was applying for an immigrant visa or admission to the United States, the Affidavit of Support was a way to prove sufficient financial support and to avoid a public charge determination. The Affidavit of Support is usually signed by the sponsoring relative of the applicant and/or a joint sponsor. The Affidavit of Support is a document which lays out the household number, income and assets of the sponsor showing whether or not the income level is below or above 125% of the poverty guidelines. When signed by the sponsor, it is also a contract between the sponsor and the government promising to support the applicant for the next ten (10) years or until the applicant gains U.S. citizenship.

Generally, inadmissibility and deportability on the basis of the public charge rule has been a rare occurrence. However, the new regulation which expands the public charge definition may change this in a substantial way. The number of individuals approved for permanent residence will decline. There is another disturbing aspect of this expanded rule. The public charge rule has caused many to drop out of programs that they qualify for or decline enrollment in assistance programs, which threatens the safety, welfare and health of families. This article will also relieve some of the fear and panic by clarifying the rule and the benefits included.

The Public Charge Rule as It Will Be

On October 15, 2019, the new public charge rule will become effective. The same rule will be implemented by the Department of State at U.S. embassies abroad. The new rule changes the public charge determination to include a more expansive definition of public charge. The deciding officer must now consider whether an individual is likely to become a public charge at any time, including in the future based on a list of benefits and factors. Some applicants will need to prove financial support above and beyond the I-864 Affidavit of Support because of the addition of the expanded definition.

The new regulation will define terms related to a public charge determination. The terms specifically defined are “public charge” and “public benefit”. The new rule also implements the new “totality of the circumstances” test to determine whether an individual is likely to become a public charge at any time. The new rule applies to individuals seeking immigrant and non-immigrant visas, as well as those who seek to extend or change their status in the U.S. The likelihood of being a public charge means that an individual will become inadmissible to enter the United States, will be ineligible for a visa or adjustment of status and may become deportable if an exception does not apply.

Public Charge is now specifically defined as the receipt of public benefits for more than 12 months within any 36 month period. The receipt of two benefits within one month, counts as two months. Now public benefits not previously considered under the rule, are included under this new rule. Such benefits include:

  •  Cash Support for Income Maintenance (which was in the old public charge rule)
  •  Non-Emergency Medicaid
  •  Supplemental Nutrition Assistance Program (SNAP or Food Stamps)
  •  Housing Assistance (Public Housing or Section 8 Housing Vouchers and Rental Assistance)

It is important to note that the public charge rule will not apply to only those on public benefits. If the officer does an evaluation of all the circumstances in the applicant’s life, and determines that based on these factors, the applicant is likely to become a public charge at any time in the future, the officer can deny the admission or the adjustment of status. For example, the officer may even consider having Obamacare as a negative factor and as an indication that an applicant is likely to become a public charge. Let’s take a closer look at the “totality of the circumstances” test.

the Totality of the Circumstances Evaluation in the new rule

The officer can use their discretion to determine under the totality of the circumstances, if an individual is likely to become a public charge at any time. What does this mean exactly? It means that the officer will not only consider whether the I-864 Affidavit of Support provides sufficient evidence of financial support. The officer will review many different factors of the applicant’s life to determine whether any circumstance weighs heavily for or against being a public charge.

Totality of Circumstances Factors

  • Age
  • Health
  • Family status
  • Income and resources
  • Education and skills
  • Validity of an Affidavit of Support

The officer will look at each of the above factors to determine whether there are more positive factors that weigh against the negative factors. For instance negative factors include a prior history of benefits receipt, income that falls below 125% of the federal poverty level, unemployed dependents and elderly family members, certain expensive health conditions, lack of private health insurance, lack of proficiency in English, lack of a basic secondary education, a poor credit history etc. 

Positive factors include If one can show sufficient household income, assets and the availability of private health insurance to cover health issues, these are weighed in a positive light. The officer may also use their discretion to impose a bond, which must be paid as a condition to gain admission to the United States.

Changes to the Bond Amount and Duration

If an officer approves the immigration benefit under the condition of a bond payment, such a bond will be of unlimited duration, at a minimum of $8100 (which would be adjusted for inflation). This raises more concerns because the bond would be another barrier to individuals and families gaining admission to the United States.

Who Will the New Public Charge Rule affect

If you are applying for an immigrant benefit, then you must be aware of this new public charge rule. Each immigrant seeking temporary or permanent entry has to meet the requirements of sufficient income to avoid the public charge determination. This new rule will disproportionately affect low and middle income families, those facing health issues and those who want to take dependent derivatives (other family members such as their elderly parents, spouse and minor children). It is important to consult an experienced immigration attorney such as myself to review your and your sponsor’s public benefits, employment, income, assets, past tax returns and health expenses to come up with a plan to meet the requirements of this new rule. Even non-immigrants seeking an extension or adjustment of status to another non-immigrant status will face more scrutiny regarding the public charge rule.

Who is Exempt from the New Public Charge Rule

Certain immigrants may not be subject to the new public charge rule. Such individuals who are exempt from this new rule include:

  • Individuals who receive benefits not listed in the new rule such as CHIP, Special Supplemental Nutrition for Women Infants and Children (WIC), Free or Reduced School Breakfast and Lunch, Energy Assistance (LIHEAP), Transportation vouchers and non cash transportation services, Non-cash TANF benefits, Tax credits, such as Earned Income Tax Credit and Child Tax Credit, Advance premium tax credits under the Affordable Care Act, Pell grants and student loans, disaster relief, and emergency medical assistance.
  • Individuals who have family members who receive benefits but are not applicants. 
  • Individuals who receive non-cash programs funded entirely by states, localities or tribes.
  • Individuals who are active duty servicemembers, military reservists, their spouses and children. (Note: Does not exclude benefits received by veterans or their families).
  • Individuals who have an immigration status that is exempt from a public charge determination such as a asylee, refugee, VAWA self-petitioner, U and T visa recipients. 
  • Individuals who received benefits before the effective date of October 15, 2019, other than cash or long-term care at government expense. (Since the 
  • Individuals on emergency Medicaid or Medicaid received for services provided under the Individuals with Disabilities Education Act (IDEA).
  • Individuals who receive school-based benefits at the high school and below.
  • Children of U.S. citizens, who are adopted, or who are permanent residents and will automatically become U.S. citizens.
  • Children entering the U.S. to attend a citizenship interview pursuant to the hild Citizenship Act of 2000.
  • Individuals under age twenty-one (21) who receive Medicaid.
  • Pregnant women until 60 days after the last day of pregnancy.

As of October 11, 2019, federal court judges blocked the new rule from becoming effective until the lawsuits are resolved. However, if the Trump Administration prevails, the rule or a version of the above rule will surely become effective in the future. As of now, it is important to know your rights and do not delay your application. Now is the time to evaluate your eligibility and apply. Get legal advice and help with preparing your application and the supporting evidence.

NOTE: As always this is for informational purposes only and is not legal advice. Consult an immigration attorney, like myself, for advice regarding your particular circumstances.

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