The new public charge rule has been temporarily blocked in the Department of Homeland Security (DHS) and the United States Citizenship & Immigration Services (USCIS). However, a new public charge rule at the Department of State became effective on October 15, 2019. The rule makes it easier for Consular officers to deny low and middle income visa and permanent resident applicants. Here is what you need to know about the effective rule.
Public Charge Rule Changes
Anyone who is “likely at any time to become a public charge” is inadmissible. The definition of public charge was limited to individuals who became primarily dependent on the government (federal, state, or local) for subsistence (public cash assistance for income maintenance or institutionalization for long-term care at government expense).
The administration has created a definition of public charge which is “an alien who receives one or more public benefits 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’ worth of benefits).” The administration also added a preponderance of the evidence consideration of certain factors to determine who is more “likely than not” to become a public charge “at any time” including after admission.
Public Benefits included under the New Public Charge Rule
It is only a few individuals who will be negatively affected by the additional public benefits added to the public charge rule. Out of the many being processed for visas outside of the U.S., only a few would qualify for or receive public benefits anyway. However, those who received or were approved for such benefits after the effective date, need to evaluate how past or future receipt of the benefits could result in denial or a public charge determination. Be careful not to make judgment calls that endanger the health and welfare of you and your family. Note that there are certain exemptions and exceptions from the receipt of public benefits discussed further in this article. Public Benefits within the new public charge definition include:
• Any Federal, State, local, or tribal cash assistance for income maintenance(other than tax credits), including: 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 also exist under other names), Supplemental Nutrition Assistance Program (SNAP), also called food stamps;
- Medicaid which include long term and short term care institutionalization; and
- Public housing and rental assistance programs
Totality of the Circumstances Test
Whether or not one is likely to become a public charge also depends on whether the applicant falls within the public charge definition and depends on the positive and negative factors in the totality of the circumstances test. The officer will apply the totality of circumstances test to come to a conclusion about admissibility. The factors that the officer must consider are as follows:
The Consular officers will consider whether the age of an applicant can be weighed negatively or positively to make a public charge determination. The officer will look at whether or not age will lead to the likelihood that the applicant will become a public charge. Ages between 18 and 62 are weighed positively. However ages under 18 and over 62 are weighed negatively. The age is evaluated as such because of the ability to work analysis. In the case that the applicant is under 18, the applicant will need an additional circumstance to offset the negative. For instance, evidence that a parent or guardian can sufficiently support the applicant.
The Consular officer will consider the medical examination report where required and also any major health issues faced by the applicant to determine whether such a condition will lead to the likelihood that the applicant will become a public charge. While this factor alone will not result in a public charge determination, the officer may require additional evidence to determine whether the applicant can cover the increased cost of the medical condition. Such evidence includes health insurance coverage or sufficient income to cover the cost of the health condition in the U.S.
The Consular officer will consider whether the family size makes it likely that the applicant will become a public charge. This is the household size. This is weighed positively if the applicant’s financial support can sustain the size of the family.
Assets, Resources and Financial Status
The Consular officer will consider the applicant’s assets, resources, and financial status.
- Household income: The first part of this evaluation will be the household gross income. It’s a positive if the applicant’s household size is at least 125 percent of the Federal Poverty Guidelines (FPG) based on the applicant’s household size (or 100 percent for an applicant on active duty, other than training, in the Armed Forces).
- Assets: If the applicant’s annual household gross income is less than 125 percent of the most recent FPG (or 100 percent for an applicant onactive duty, other than training, in the Armed Forces), the applicant can submit evidence of ownership of assets, which may sway the negative factor. Total asset value amounting to 5 times the difference between the household income and 125 percent of the FPG is a positive. If the applicant is the spouse or child of a U.S. citizen, then the total asset value can be 3 times the difference between the household income and 125 percent of the FPG. Applicants who are being adopted in the U.S. who will likely receive likely receive citizenship under INA 320, can show assets equal to or greater than the difference between the applicant’s household gross income and 125 percent of the FPG (100 percent for those on active duty, other than training, in theArmed Forces). This is also a positive factor.
The following does not count as income in the officer’s analysis:
- any income from illegal activities or sources which includes illegal gambling or illegal drug sales; or
- income from public benefits
Apart of this analysis includes the applicant’s:
- Cash assets and resources
- Non-cash assets
- Resources that can be converted into cash within twelve months of the date of the visa application
- Financial liabilities
- Past or Current public benefits
- Past receipt of a fee waiver
- Private health insurance
- Other financial resources to pay for reasonably foreseeable medical costs.
Education and skills
The Consular officer will consider certain factors to determine whether the applicant is likely to become a public charge based on whether the applicant has adequate education and skills to obtain or maintain lawful employment. Such factors include:
- History of employment
- Educational level (high school diploma, or its equivalent, or a higher educational degree),
- Any occupational skills, certifications, or licenses; and
- Proficiency in English or proficiency in other languages in addition to English.
Being 18 and over, with a main care taking role and positive employment history is a positive.
Affidavit of Support
A properly completed and sufficient I-864 Affidavit of Support used to be enough to avoid a public charge finding of inadmissibility. However, with the implementation of this new rule, the Affidavit of Support is just one aspect of a number of considerations. The Consular officer will consider the content of the I-864 Affidavit of Support to determine the relationship of the sponsor with the applicant, and whether the sponsor is likely to support the applicant. Therefore, a friend or acquaintance as a sponsor may not be enough to convince the officer that you will have sufficient and guaranteed financial support in the United States.
Factors Weighed Heavily As Either Positive or Negative
There are certain negative and positive factors that are weighed heavily than others. Such heavily weighed negative factors include:
• An applicant who is not a full-time student, is authorized to work, but is unable to show convincing evidence to the consular officer of current employment, has no employment history and cannot show future employment.
• An applicant who has received, or has been approved to receive the included public benefits for more than 12 months in the aggregate within any 36-month period as of October 15, 2019, or 36 months prior to the adjudication of the visa application, whichever is later.
• An applicant who has a medical condition that will require expensive and/or extensive treatment or institutionalization or a medical condition that hinders the applicant’s ability to provide for work or attend school.
• An applicant who does not have health insurance and cannot provide evidence that they will buy health insurance to cover a medical condition.
• An applicant who was previously found inadmissible or deportable on public charge grounds by an Immigration Judge or the Board of Immigration Appeals.
The heavily weighted positive factors include:
• An applicant whose household has income, assets, resources, or support of at least 250 percent of the Federal Poverty Guidelines (FPG).
• An applicant who is authorized to work and is currently employed with an annual income of at least 250 percent of the FPG.
• An applicant who has private health insurance (other than Obamacare) for use in the United States covering the expected period of admission.
Who Is Exempt from the Public Charge Determination at DOS
Certain immigrants are excluded from the public charge rule. In addition, please note that public benefits only applies to the immigrant who is applying for a visa or permanent residence. The public charge determination does not extend to non-applicant family members who qualify for and/or who are receiving public benefits. Other exempt categories include:
- An applicant who is enlisted in the U.S. Armed Forces or who is the spouse or child of such person,
- Children of U.S. citizens whose lawful admission for permanent residence and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child U.S. citizenship
- Children of U.S. citizens whose lawful admission for permanent residence will result automatically in the child’s U.S. citizenship upon finalization of adoption.
- Children of U.S. citizens who are entering the United States for the purpose of attending an interview.
- Refugee and Asylee status
It is important to have an experienced attorney, such as myself, look over your particular circumstances to assist with the gathering of strong evidence to over come the totality of circumstances test.
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.