On August 14, 2019, DHS (Department of Homeland Security) finalized the new public charge rules which will become effective on October 15th of 2019. The Trump administration, published the proposed new public charge rules on October 10th of 2018.
The proposed rule change focused on what criteria that United States immigration services would use to form their opinion as to whether an individual was likely to become dependent on the United States government for support or a “public charge”.
Who is Considered a Public Charge?
By definition, a person that is deemed a potential public charge is a person that would have to rely in whole or in part on the government for assistance. The new public charge rules that were recently published have broadened the criteria of who is likely to be a public charge.
For over 100 years of immigration to the United States, the US government has recognized that people coming into the country may need help securing health care and shelter to get on their feet and succeed in the United States, but the recent changes have abandoned those ideas. The thin line between needing some aid and being a public charge is no longer a line. Either you are independent of government aid or you are a public charge.
Who Do the New Public Charge Rules Apply To?
There are two situations when the “test” will be used. The test will be used upon initial application to immigrate to the United States, and when an immigrant applies to become a permanent resident (Green Card). If you are in either one of these two categories you need a trusted immigration attorney on your side.
Who Do The New Public Charge Rules NOT Apply To?
There are several categories of immigration when the public charge rule changes do not apply. If you are in any of the categories below, you can be either exempt or apply for a waiver to be exempt. According to the UCIS website anyone in any of these immigration categories may be safe from the new public charge rules:
- 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
If you are in any of the categories above, or you are not sure what category you are in, and need help navigating this process, we can help. Our immigration attorney can provide you with the advice you need, file any exemption requests, and help you get through the process.
Inadmissibility and Public Charge Rule Changes
The new public charge rule changes were instituted to slow immigration into the United States. The rules that will be implemented in October 2019 will require that immigration officials look closer at:
- Family class status
- Health status of the immigrant
- Assets like cash on hand, bank accounts
- Resources available
- Financial status of the family
- Education, licenses, skillset
- Age of the immigrant and the ability to work
The public charge litmus test is supposed to look at the “totality of circumstances”, in other words, the immigration official should be looking at the whole circumstances of the individual applying. One or two negatives should not be used as a determining factor if everything else is in order. However, most experts in immigration agree that the Trump administration formulated these rules to make the process more restrictive.
The Affidavit of Support
One of the ways you can avoid being declared a “public charge” is by filing the affidavit of support (Form I-864). A “qualified sponsor” fills out the affidavit of support to prove to the government that they have the ability to provide for your support. The sponsor has to be able to show that they are in a financial position to “sponsor” you in the United States.
The Affidavit has to show that the sponsor has an income level of no less than 125% of the poverty level in the US. There is a list of individuals that MUST file the affidavit with their application for immigration or a green card including:
- All family based categories including orphans.
- Employment based immigrants that will work for family members in the United States.
If a qualified Affidavit of Support is not filed that has the right income, it will make the immigrant inadmissible. Section 212(a)(4) outlines the right to reject. Widows, battered spouses, and battered children are exempt under the rules from having to file, however, even in those cases Form I-86-W (exemption from filing) has to be filed.
Program Participation and Public Charge Rule Changes
The old rules allowed participation in certain public programs without participation being considered “evidence” of becoming a public charge for example, Medicaid (health benefits) or Supplemental Security Income (SSI) under Title XVI of Social Security Act.
Under the new rules, participation in Medicaid for “long term institutional care” can be considered a disqualifier. Other programs that can be used as a determination of “public charge” status include but are NOT limited to:
- Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program) (Note: Non cash benefits under TANF such as subsidized child care or transit subsidies cannot be considered and non-recurrent cash payments for crisis situations cannot be considered for evidence of public charge)
- State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs)
- Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution). (Note: costs of incarceration for prison are not considered for public charge determinations) (USCIS, 2019)
The above is not an exhaustive list of what can be considered in the evaluation, basically any cash assistance, or anything that costs the government money can be considered in the test, and can wind up in a denial.
How Will The Public Charge Rule Changes Affect You?
Each immigration case is unique. Your unique circumstances make it difficult to asses what affect these new public charge rules will have on you and your family. Before you apply for your green card, and risk losing the opportunity, contact us. We have the experience to deliver the personalized attention your case deserves.