New Consequences for Immigrants who Receive Public Benefits

On October 15, 2019 new rules go into effect regarding the admissibility of some immigrant and nonimmigrant applicants. The Department of Homeland Security (DHS), through the US Citizenship and Immigration Services (USCIS) is changing how it determines if an applicant may become a public charge under Section 212(a)(4) of the Immigration and Nationality Act of 1952. There has been quite a bit of media attention, so you may be wondering what this means for you or your family.

What is a Public Charge?

Since the 1800s the US government has had restrictions on certain immigrants and nonimmigrants who they think may become a public charge. Currently, USCIS defines “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). Since 1996, federal law has stated that foreign nationals coming to the US must be self-sufficient. Currently, there are several benefit programs listed as public benefits whose use by an applicant may lead to inadmissibility as a public charge. They are:

• Supplemental Social Security Income (“SSI”)
• Temporary Assistance for Needy Families (“TANF”, monthly cash assistance for families often called “welfare”)
• Medicaid Long-Term Care
• State and Local cash assistance, sometimes called “General Assistance”

Not many individuals have been found ineligible for admission to the US under Public Charge grounds because these services are generally not available to non-US citizens. Additionally, many immigrant and nonimmigrant applications have either been required or strongly encouraged to provide an Affidavit of Support from a US Citizen or US Lawful Permanent Resident that promised financial sponsorship of the individual if needed.

Who is affected by the new rule?

Before we talk about what changes are occurring, it is important to consider who will be affected. The new Public Charge rule does not apply to everybody. The new Public Charge rule applies to:

• New applications for adjustment of status to Lawful Permanent Resident (LPR or green card holders): the new rule will apply to most applicants for green cards (permanent residence) filed on or after October 15, 2019. It will apply to both family-based green cards and employment-based green cards. USCIS has proposed a new form to be required with adjustment of status cases to provide additional information on the public charge issue.
• People applying for certain nonimmigrant visa extensions, renewals, or change of status: The rule will extend to many temporary visa holders, but the expected impact is uncertain since many temporary visa holders are not eligible for the specified benefits.
• People seeking admission or readmission to the US: If you have a green card and have been outside of the US for more than 6 months, you may be required to reapply for admission to the US, and that would trigger evaluation under the new rule.
• People seeking immigrant and nonimmigrant visas abroad: Department of Homeland Security will use these standards in their overseas offices. The State Department has recently changed their manuals and policies to allow for more discretion by officers. It is expected that the State Department will follow the new public charge rules to reflect the DHS rule.

Who is NOT affected?

This rule is NOT retroactive– that means that if you currently have your green card or are filing before October 15, 2019, these changes do not affect you. Additionally, many categories of immigrants are excluded by the US Congress. Generally, the following are not subject to the new rules as long as they do not leave the US for more than 6 months at a time:

• Current LPRs (green card holders), including those that need to renew their green cards.
• US Citizen children and family members. This means that if your children, spouse, or other relatives are US citizens, they can use benefits without putting you at risk
• Active Duty US military families
• VAWA (Violence Against Women Act) self-petitioners
• T or U visa holders (victims of serious crimes)
• Special Immigrant Juveniles (SIJS)
• Refugees
• Asylees
• Afghans and Iraqis with special immigrant visas

What is Changing?

Starting October 15, 2019 there are several important changes to the Public Charge Rule.

Change in the definition of who is a “Public Charge”:
The new rule changes the definition of “public charge” from one who might become “primarily dependent” on the original designated list of programs (SSI, TANF, long-term Medicaid, and General Assistance) to someone who is “more likely than not” to receive any of the expanded list of benefits (see below) for more than 12 months in the aggregate within any 36 month period. Receiving multiple benefits within the same month will increase the number of months an immigrant was considered to be receiving benefits. The new rule has a higher standard to overcome, looks farther in the future, and considers more programs.

More benefit programs that may lead to a Public Charge ruling:
There are several new programs added to the list that can be considered by USCIS officers when applying the public charge rule. The additional programs include:

• Supplemental Nutrition Assistance Program (SNAP or “Food Stamps”)
• Public Housing
• Section 8 Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance
• Non-emergency Medicaid for adults who are not pregnant

Factors used to determine the totality of the circumstances in a public charge ruling:
The rule shifts away from reliance on a sponsor’s Affidavit of Support to pass the public charge rule. USCIS will now focus on several factors as required by the statute and the new final rule to determine whether the applicant passes the public charge test. USCIS will consider the totality of the circumstances in determining the likelihood of someone becoming a Public Charge and weigh both positive and negative factors when determining whether someone is more likely than not at any time in the future to become a public charge. USCIS has also proposed a new form to be required by adjustment of status applications to provide additional information on these factors. Factors under consideration include:

• Age: Applicants younger than 18 or older than the minimum Social Security retirement age will need to provide evidence that their age will affect the ability to work or how they will support themselves.
• Health: Applicants with serious health conditions will need to demonstrate that the condition will not impact their ability to work, attend school, or care for themselves.
• Family status: Household size determinations will change to include dependents and persons providing the applicant with more than 50% of their support. This will increase the size of many households, thus requiring a higher income on any Affidavit of Support.
• Assets, resources, and financial status: Financial status considerations will now include civil liabilities, record of benefit application and use, application or use of an immigration fee waiver, credit history and credit score. Assets may still be used to make up for a shortage of annual income below 125% of the federal poverty line.
• Education and skills: USCIS will consider if the applicant has sufficient training, education, and skills to support themselves through lawful employment.
• Expected period of admission (immigrant vs. nonimmigrant and length of expected stay); and
• Sufficient Form I-864, Affidavit of Support, when required: USCIS may not only consider that the income is sufficient for the new household size, but may also consider the likelihood that the sponsor will actually provide the statutorily required amount of financial support.

The new rule also describes several negative factors factors that will weigh heavily in favor of a finding that an individual is likely to become a public charge at any time:

• Despite being authorized to work, the individual cannot show current or recent employment history or a reasonable prospect of future employment. This does not apply to full-time students.
• Receipt of, certified for, or approval of one or more of the listed public benefit programs above for more than 12 months in the aggregate within any 36-month period beginning no earlier than 36 months before the individual’s last application for admission or adjustment of status (or after October 15, 2019).
• A previous finding by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.
• Diagnosis of a medical condition that is likely to require extensive medical treatment or institutionalization that will interfere with the individual’s ability to work, attend school, care for themselves, and the applicant is uninsured with neither the prospect of obtaining private health insurance nor the financial resources to pay for the reasonably foreseeable medical costs related to the medical condition.

Positive factors that will generally weigh against a finding that the applicant will likely become a public charge:

• The applicant’s household income, assets, resources, and support from a sponsor is at least 250% of the Federal Poverty Guidelines for the household size.
• The applicant is authorized to work and is currently employed with an annual income of at least 250% of the Federal Poverty Guidelines for the household size.
• The applicant has private health insurance appropriate for the expected period of admission, not including insurance acquired by using subsidies from the premium tax credits under the Patient Protection and Affordable Care Act.

Posting a Public Charge Bond:
In the past, the law has allowed for a bond to be posted to overcome a possible finding of inadmissibility due to the public charge rule, but it was rarely used. The new rule details procedures for posting and cancelling a Public Charge Bond, so it may become a more common occurrence. The new rule allows individuals to post a bond of at least $8,100 in situations where an applicant may need to reassure USCIS or State Department that the applicant will not become a public charge. The bond may be cancelled upon an immigrant’s death, premature departure, 5 years in Lawful Permanent Status (LPR or green card), or naturalization. The bond is considered breached and forfeited if the immigrant receives any of the designated benefits listed above for more than 12 months aggregate within any 36-month period.

What benefits are NOT considered at risk to become a Public Charge?

Most federal and local benefits are NOT included in determining a Public Charge determination. Receipt or potential receipt of the following benefit programs are not included in determinations under the final rule (not a complete list):

• Medicaid for kids under 21 (Child Health Insurance Program, Oregon Health Plan)
• Medicaid (OHP in Oregon) for pregnant women, including 60 days of postpartum care
• Emergency Healthcare, including Emergency Medicaid
• Medicare
• WIC (food assistance for Women, Infants and Children)
• Free or Reduced School Lunch and Breakfast programs
• Food assistance from a food bank
• School-based health services
• Social Security retirement
• Unemployment Insurance
• Special Education
• Head Start Education Programs
• Earned Income Tax Credit or Child Tax Credit
• Foster Care and Adoption
• Disaster Relief

Key Points to Remember:

After October 15, 2019, there will be new standards for admissibility for most green card applications and green card holders who must apply for readmission to the US. The final rule may also be extended to some applications for nonimmigrant (temporary) visas, renewals, and change of status. Despite these changes, there are many federal, state and local benefits that will not be considered as part of the Public Charge final rule and the restriction on benefit use does not extend to your US Citizen relatives. More evidence will be needed to establish that an applicant has not been and will not become a public charge in the future. More income may be needed to establish that an applicant will not become a public charge. USCIS and the Department of State will be looking beyond the Affidavit of Support to determine the financial self-sufficiency of an applicant. Ultimately, if you have been considering applying for a green card, naturalization, visa extension or visa change of status, you should apply as soon as possible. Submitting a comprehensive, quality visa application is becoming more important than ever.

This is a changing area of the law and we will update our information as the rule and its implementation develops.