Q: When will the new rule relating to Public Charge be implemented?
A: The Department of Homeland Security published a final rule in the Public Register relating to Public Charge on August 14th, 2019. This new rule is intended to take effect on October 15th, 2019. All current pending adjustment of status cases and those that are mailed and postmarked before October 15th, 2019 will be adjudicated under the current policy for public charge. The implementation of the new public charge rule will occur on October 15th, 2019 provided that there are no legal challenges which could delay or prevent its implementation.
Q: What is the public charge rule?
A: The public charge rule applies to individuals who are seeking to become lawful permanent residents and apply to both individuals requesting for permanent residence in the United States and applying for the Immigrant Visa at the US Consulate abroad. The rule makes inadmissible individuals who are likely to become primarily dependent on the Government for support. Under the current policy for public charge, not all forms of government support will make one ineligible – just those which relate to cash-aid for income support or long-term care paid for by the Government. An individual found inadmissible as a public charge will not be able to receive the Immigrant Visa or be denied permanent residence.
Q: How will this NEW public charge rule affect all intending immigrants after October 15th, 2019?
Currently, the immigration officer will evaluate whether an applicant will become primarily dependent on the Government for support but which relate to cash-aid for income support of long-term care paid for by the Government. Typically, the officer will review the Affidavit of Support which is provided by the sponsor. The Affidavit of Support is usually considered sufficient evidence that the immigrant will not primarily become dependent on the Government for support. In addition to that, the immigration officer will consider whether the immigrant has used any cash-aid in the past or have received long term institutionalized care. If the intending immigrant has used or received such benefits in the past, he or she will have to show that he or she now will not likely need these forms of support in the future. The NEW rule expands this interpretation of what kind of benefits will be considered. Currently, use of benefits such as nutrition, housing programs and publicly funded health care did not affect the ability of the applicant to prove he or she will not likely be a public charge. The new rule changes that and will permit the Immigration officer to consider receipt of these benefits in the public charge determination. Additionally, the new rule automatically defines one as a public charge if he of she receives any number of public benefits for more than an aggregate of 12 months over any 36- month period of time. Even more difficult is the requirement that each of the benefits received must be counted towards the 12-month calculation. So for example, if an individual receives three types of different benefits each month, that would count as three months use of benefits. Further, the immigration officer is permitted to consider a wider range of benefits when evaluating if the applicant is likely to become a public charge. The range of benefits will include Medicaid, SNAP (or Supplemental Nutrition Assistance Program or Food Stamps), Section 8 Housing Assistance Program and all federally subsidized housing – these individuals will be deemed public charge and found inadmissible. Further, using any form of cash-aid including SSI (Supplemental Security Income), TANF (Temporary Assistance for Needy Families) and any other forms of state of local cash assistance programs could also make one inadmissible as a likely public charge. The immigration officer is also permitted to consider other criteria to assess whether the individual who has never received any benefits will also likely become a public charge. These factors include the applicant’s age, financial status and record including possibly credit score as well, educational level, employment history, work skills, English proficiency, medical condition(s), if any. The Affidavit of Support will also be reviewed in a different way and ‘positive weight’ will be given to Affidavits of Support which shows a higher household income equivalent to at least 250 percent of the poverty guideline. (Currently, the requirement is that the Affidavit of Support satisfies only 125 percent of the Poverty Guidelines). This new Public Charge rule gives the immigration officer wide latitude to deny individuals for public charge reasons and at the present moment, it is unclear how the discretion will actually be applied to individual applicants.
Q: What happens if an individual is denied based on Public Charge ground of inadmissibility under the new rule. What can he or she do?
A: The rule appears to offer the option for the individual to provide a bond, if determined a public charge. It is unclear how this would be implemented at the present time. It appears that given the opportunity to pay is bond is a also discretionary matter and there may be certain factors that will make the applicant ineligible for such a bond. It is also unclear if there will be an appeal process for denials of the bond.
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.