On October, 10, 2018, the Department of Homeland Security (DHS) published a policy change related to the public charge issue under INA §212(a)(4). This new policy is now in its public comments period. After the 60 days commenting period, it will go into effect.
What is public charge?
Someone who is likely to become “dependent on the government” for their living expenses could be determined to be a “public charge.” The immigration officers will look if you have received public cash assistance (like SSI or TANF) or receiving government money for long-term care.
Does the rule apply to me?
The rule applies to all applicants for lawful permanent residence. If you are determined to be a “public charge” under the statute, you may be unable to adjust your status to that of a lawful permanent resident.
It also applies to those who are here on a temporary visa and wants to extend their stay in the same nonimmigrant visa or to change their status to a different nonimmigrant visa.
The public charge test does not apply to humanitarian immigrants such as refugees, asylum applicants, survivors of domestic violence, trafficking and other serious crimes, and special immigrant juveniles.
In addition, public benefits received by U.S. citizen children of aliens are excluded of considered for the “public charge” test.
Lawful permanent residents (green card holders) are not subject to a public charge test by the time they apply to citizenship.
Would I be considered a “public charge” to the U.S. Government?
Under the current rules, you probably would not be. Currently, most immigrants are unable to obtain those benefits and must have a financial sponsor to apply for green card. Therefore, there have been very few denials based on the fact that someone could be a public charge.
Most visa applicants were able to submit a financial sponsor’s Affidavit of Support, accompanied by evidence of meeting the income threshold of 125% of the Federal Poverty Guidelines (FPG).
What about under the new policy?
Possibly. DHS is proposing a definition to “public charge”, which means someone who receives public benefits, or, in the future, will likely to use the benefits programs. DHS is prescribing the types, amount, and duration of receipt of public benefits that would be considered in public charge inadmissibility determinations.
Now, some health insurance programs, (e.g. Medicaid), supplemental nutrition program (e.g. SNAP, or food stamps), and housing programs (Section 8) are included in the new policy and may trigger public charge inadmissibility.
For those monetizable benefits, how much the applicant received on public benefits is going to be considered. The proposed threshold is 15 percent of the FPG for a household of one within any period of 12 consecutive months. For 2018, that would be $1,821.
For non-monetizable benefits, it will depend for how long the applicant was enrolled on the program. The proposed threshold is receipt of such benefits for more than 12 months in the aggregate within a 36-month period.
Also, a person would be considered likely to become a public charge even if she is likely to receive a monetizable benefit below the threshold, but, at the same time, is likely to receive one or more non-monetizable benefits for longer than 9 months.
Under the new policy, will the receipt of public benefits automatically make me a public charge?
No. Public benefits by themselves will not automatically make the applicant a public charge. A prospective test based on multi-factor totality of circumstances test will be applied, and all the financial situation of the applicant will be examined.
However, receipt of public benefits will heavily weight negative to the applicant.
Age, health, family status, assets, resources, financial status, education and skills, including English language proficiency, prospective immigration status, expected period of admission, and affidavit of support, when required, are the factors that are going to be assessed to make a determination of the applicant’s likelihood of becoming a public charge at any time in the future.
Other than receipt of public benefits, what else could be seen as negative me?
Employment: If you are not a full-time student and is authorized to work, you should be currently working or be able to demonstrate that the break in employment is only temporary through a consistent employment history.
Medical Condition: If you have been diagnosed with a medical condition that is likely to require extensive treatment or hospitalization or that will interfere with your ability to be self-sufficient, attend school, or work. Additionally, if you are uninsured and have no prospect of obtaining private health insurance, that will be an additional factor against you.
Previous Immigration History: If you have been previously found inadmissible or deportable based on public charge are some other factors. That determination would weigh heavily against you.
Which factors will be considered positive to the applicant?
The fact that the applicant has financial assets, resources, and support of at least 250 percent of the FPG for a household of the applicant’s household size, or the applicant is authorized to work and is currently employed with a an annual income of at least 250 percent of the FPG for a household of the applicant’s household size.
Will there be new forms required for applicants for lawful permanent residence?
Yes. According to the proposed rule, the applicant will have to file a new form, the Form I-944, Declaration of Self-Sufficiency, which is going to assess the applicant’s ability to be financially self-sufficient.
For instance, it will require information about prior applications for public benefits, credit report, private healthcare etc.
Is there any way to overcome the determination of public charge?
Yes. In some cases, the applicant or a sponsor would be authorized to submit a bond of $10,000 or more.
What should I do if I am uncertain whether I will be a public charge?
If you have any questions about whether you would be determined to be a public charge under the new policy, please contact our law firm for a consultation.