In B.C. (Before Coronovirus), USCIS and the US Department of State were permitted after litigation favored the Trump Administration in January 2020, to proceed with their much expanded application of the “public charge” rule. The new rules take effect for both agencies on February 24, 2020. The essence of the rule has remained the same for over a century; but the methodology and format for proving it has changed dramatically under the Trump Administration. It’s now the most expansive and quite frankly, unworkable test ever implemented. Time will tell if it actually serves the American public to impose it in order to protect Americans from foreigners using welfare benefits.
On August 14, 2019, the Department of Homeland Security (DHS) published the final “Public Charges” rule in the Federal Register. The rule aims to to reduce the admission of foreign nationals for permanent residence into the United States because of their fear that such persons become reliant on government aid or welfare. According to the USCIS, this new rule will encourage “economic self-reliance and self-sufficiency for those seeking to come to or stay in the United States.”
What does “Public Charge” rule mean?
First established by Congress in 1882, the term “public charge” in the Immigration and Nationality Act has historically referred to a concept that allowed the DHS to deny the admission or immigration of any foreign national who is “likely to become a public charge in the future” – someone who is primarily dependent on the government for economic support. Until recently, the rule was interpreted to cover individuals who accepted common cash welfare benefits including:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- State and local cash assistance
- Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution
For the past two decades, most green card applicants have been able to sidestep the “public charge” barricade by submitting a financial sponsor’s Affidavit of Support (Form I-864), accompanied by evidence of meeting the statutory income threshold, which is defined in the statute as 125% of the Federal Poverty Guidelines – currently $32,187 for a family of four. Meeting the criteria and evidence of the Form I-864 created a presumption of no public charge.
What Does the New Public Charge Rule Say?
For the most part, the new rule would dramatically broaden the standard definition of who is to be considered a “public charge” by treating a wider range of common government benefits as public benefits for public charge determinations, including:
- All of the benefits considered under the current policy (SSI, TANF, general assistance, and long-term institutionalized care)
- Supplemental Nutrition Assistance Program (SNAP) (with exceptions for Women, Infants, and Children (WIC))
- Section 8 housing and rental assistance
- Federal housing subsidies
- Non-emergency Medicaid benefits (with exceptions for immigrants under 21, pregnant women and people with disabilities)
A “public charge” denial would be triggered if a foreign national uses one or more of these benefits for more than 12 months in aggregate in the course of any 3-year period. A denial will also trigger if a foreign worker with a family of four earns less than $64,000 (or 250% of the federal poverty guidelines).
More disconcerting is that the I-864 and supporting evidence is no longer enough and is no longer a presumption of meeting the criteria. It is now just “a factor” among 12 factors to be considered. Factors such as age, health, occupation skills, English language capacity, bankruptcy, assets and access to credit and health insurance are now equally important. This has now become a large and complex soup with no particular factor meaning more than the other. This always leads to more diversity in decisions which leads to more uncertainty and randomness. This has already been happening at US Embassies where it has been informally being applied.
It is important to note that the new public charge rule will not be applicable to all foreign nationals. Certain “humanitarian” foreign nationals are either exempt from having to rigorously prove that they are not likely to become a public charge or can qualify for a public charge “waiver.” These foreign nationals include:
- People who are applying for or have been granted asylum (Asylees)
- Victims of domestic violence (VAWA)
- People who have or are applying for U or T visas – certain trafficking victims or victims of qualifying criminal activity
- Special Immigrant Juveniles (SIJs)
Foreign nationals falling in any of these categories can use any government programs they are eligible for without worrying that doing so will harm their chances of getting a green card or improving their immigration status.
The new public charge rule will naturally result in fewer legal immigrant approvals. This will certainly have a chilling effect for many foreign nationals staying obtaining legal permanent residence, especially if they are elderly, sick, debt-laden, or under-employed.
The new rule published by the DHS is over 800 pages long and very complex, requiring much more documentation than the I-864. If you have any questions about what the proposed “Public Charge” rule means for you and your current or future plans, consult with the Boulder, Colorado lawyer Catherine Brown at The Law Office of Catherine Brown LLC for a case-specific assessment today!