by Jose Enrique Perez
Not for the moment. Personally, I don’t think courts will allow the rule to go into effect. In August 2019, the Trump Administration announced a final rule that changes the public charge policies used to determine whether an individual applying for admission or adjustment of status is inadmissible to the U.S. under longstanding policy, the federal government can deny an individual entry into the U.S. or adjustment to legal permanent resident (LPR) status (i.e., a green card) if he or she is determined likely to become a public charge. Please note that the final public charge rule is expected to into effect on October 15, 2019. However, there are many lawsuits seeking injunctive relief against it.
What is the current law? Currently, immigration officers decide public charge by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support.
To decide whether an individual is a public charge, immigration officers rely on multiple things, but mainly on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor, indicating that the sponsor will financially support the immigrant. Another factor is whether an immigrant has used cash aid (such as TANF, also known as “welfare,” or SSI).
Benefits received by family members of the immigrant are not considered or emergency medical care or disaster relief. Additionally, Medicaid received by applicants while under age 21 or while pregnant are not considered.
Individuals seeking to enter the United States apply at consulates abroad. At the consulates, the officers use the Foreign Affairs Manual (FAM) as guidance on how to make decisions and how to investigate the sponsor.
What is the new rule? Now, instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rule defines a public charge as a person who receives any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. Each benefit used counts toward the 12-month calculation. For instance, if an applicant receives two different benefits in one month, that counts as two-months’ use of benefits. It is important to remember that prior receipt of benefits is only one factor in the public charge test.
Use of publicly-funded health care, nutrition, and housing programs are not currently considered negative factors for purposes of public charge. The rule expands the public charge and now will include Medicaid, SNAP or Food Stamps, Section 8 housing assistance, any cash aid, including not just TANF and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.
The rule allows immigration officers to consider English proficiency (positive), or lack of English proficiency (negative); medical conditions and availability of private health insurance; and past use of immigration fee waivers. The rule will require immigrants to attach a Declaration of Self-Sufficiency when applying for a green card in addition to the many forms already required.
The new rule creates “heavily weighted negative factors” (12 months of public benefits in the aggregate over the 36-month period) and a couple “heavily weighted positive factors” (a household income of at least 250% of the federal poverty level).
Bonds are possible where an immigration officer finds inadmissibility based on public charge.
Most Importantly: The new rule will apply to adjustment of status applications postmarked on or after October 15, 2019 (not those pending or postmarked before that date). Also, it does not apply to other immigrants or people seeking to become citizens.
You should remember that this article is not intended to provide you with legal advice; it is intended only to provide guidance about potential immigration policies. Furthermore, the article is not intended to explain or identify all potential issues that may arise in connection with representation before immigration courts, USCIS or ICE. Each case is fact-specific and therefore similar cases may have different outcomes.
I represent individuals in immigration cases. If you have any questions or concerns about an immigration case or potential case, you can call me at (315) 422-5673, send me a fax at (315) 466-5673, or e-mail me at firstname.lastname@example.org. The Law Office of Jose Perez has now moved and is located at 659 West Onondaga Street, Upper Level, Syracuse, New York 13204. Now with offices in Buffalo and Rochester!!! Please look for my next article in the November edition.