The United States Supreme Court on Monday January 27th, 2020 ruled 5-4 in favor of lifting the federal judge’s injunction on the Trump administration’s policy to restrict legal immigration by allowing the enforcement and implementation of the ‘public charge’ rule. US immigration officers will now be able to implement the new restrictions in every state apart from Illinois, where the rule is still blocked under a statewide injunction.
Q: What is the public charge rule?
A: This rule essentially gives immigration officer more powers to deny permanent residence to green card applicants if they are deemed a public charge. The rule expands the types of benefits used to include using food stamps (SNAP), certain federally funded Medicaid benefits, and quite a number of forms of government subsidized housing, including Section 8 Housing vouchers, nonemergency Medical benefits (with the exceptions for children under 21, people with disabilities, pregnant women and mothers within 60 days after giving birth). A public charge denial would occur if the applicant received one or more of these designated benefits for more than 12 months in aggregate within any 36-month period. Receipt of three different qualifying benefits in one month will count as three months’ worth of benefits. In addition, and more troubling is the immigration officer also needs to determine if the prospective immigrant is more likely than not in the future to use benefits taking into account their financial status, age, educational level and skills, their health, how many dependents they have, what kind of debts they have and their English Language proficiency. Also, there is a requirement that the adjustment applicant must be able to show his or her household income (or asset equivalent) is at least 125 percent of the Federal Poverty Guidelines. This could be a problem for many intending applicants especially those from the lower income brackets.
Q: When will this rule actually take effect? Who does it affect?
There is currently no announcements from USCIS regarding exactly when this rule will come into effect or when it will be implemented. The rule will affect those who are applying for permanent residence or green cards in the United States through a process known as adjustment of status. This applies to both family-based and employment-based immigrants. Some individuals are exempt from the public charge test: asylees, refugees, applicants adjusting status as battered spouse, for example. For those applying for immigrant visas from abroad, it is pertinent to note that there is certainly an increase in visa denials based on public charge ground of inadmissibility based on some of the criteria espoused under this public charge rule.
Q: I am a US Citizen and I am petitioning for my spouse. We have three children and I am disabled and do not earn an income. I receive Disability Benefits and I intend to use a Joint Sponsor. I am very stressed out because I am reading about this rule and I am wondering if I need to give up my Disability Benefits because I cannot survive without it.
A: This rule is only applicable to those who are applying for permanent residence and not US Citizens. There is no need to consider giving up your Disability Benefits.
Q: I am a Permanent Resident for the past 20 years and I have just been approved for Section 8 Housing. I also intend to apply for Citizenship. Does this rule affect me? Do I have to turn down the Section 8 Housing benefit?
A: This rule does not affect those who are already permanent residents who have become eligible for public benefits. Neither does it affect those applying for Naturalization.
Q: I am a mother of three US Citizen children. I came here illegally more than 10 years ago. I do not take any benefits but my children are receiving Medicaid which is their right as US Citizens. Do I need to take my children off Medicaid. I have two autistic children and I cannot let them be without the therapies that they need and which Medicaid is assisting. Will immigration locate me because my children are using these benefits? Please can you advise?
A: Your children are entitled to received Medicaid as they are US Citizens. There is no need to take your children off Medicaid as the rule does not apply to them. Further, the rule is also not designed to track or locate individuals like you who have children using Medicaid and who are eligible to receive it.
Q: My spouse already filed her application for adjustment of status prior to October 15th, 2019. How will this rule affect her adjustment of status?
A: It is clear that the rule will not affect adjustment of status applications filed prior to the effective date of implementation of the rule which was October 15th, 2019. In light of the Supreme Court decision it is still unclear when the rule will be implemented and which adjustment of status applications will be affected. The USCIS website on the day of publication of this article has yet to publish any further information about the effective date of implementation of this rule or if any further Forms are needed as part of the adjustment of status filing.
Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.
Sharlene Sharmila Richards is a licensed Immigration Lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. If you require advice or assistance, you may contact her at telephone number 713-623-8088 or by email at firstname.lastname@example.org to schedule a free consultation to discuss your case.