On August 14, 2019, DHS published its Final Rule related to the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act which becomes effective on October 15, 2019 and will only be applied to applications and petitions postmarked on or after that date. But what exactly does that mean? How does it affect you and your loved ones?
What is public charge?
For purposes of determining inadmissibility, “public charge” means an individual who is likely to become primarily dependent on the government for assistance, as demonstrated by either the receipt of assistance such as:
Any federal, state, local, or tribal cash assistance for income maintenance;
Supplemental Security Income (SSI);
Temporary Assistance for Needy Families (TANF) cash assistance;
Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names) ;
Medicaid supporting individuals who are institutionalized for long-term care (if federally funded, with certain exclusions).
This is not an exhaustive list of the types of cash benefits that could lead to a determination that a person is likely to become primarily dependent on the government for assistance but it is a start.
When determining whether to find someone a public charge, the DHS officer must weigh both the positive and negative factors involved and consider the totality of the circumstances. A DHS officer must consider the applicant’s age, health, family status, assets, resources, and financial status, education and skills, prospective immigration status, expected period of admission, and sufficiency of sponsors’ income, when required.
How does this affect you or a loved one?
Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (Green Card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge."
What exactly does this mean? It means that if you or a loved one, when applying for your residency/Green Card, are found to be likely to become a public charge because you receive or may receive government assistance in the future, then you will de found to be inadmissible - not allowed entry.
However, keep in mind that any public benefits that are received by a member of your family are not attributed to other family members for public charge purposes unless the cash benefits amount to the sole support of the family. For instance, if members of your family receive assistance, that assistance will not be applied to you simply because you are related or living in the same household. DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit.
What about Food Stamps & Section 8?
Non-cash benefits and special-purpose cash assistance are generally not taken into account for purposes of a public charge determination. These are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination.
What is a non-cash or special purpose cash benefit? These include any of the following:
Medicaid and other health insurance and health services (including emergency Medicaid, public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care;
Children's Health Insurance Program (CHIP);
Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
Housing benefits;
Child care services;
Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
Emergency disaster relief;
Foster care and adoption assistance;
Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
Job training programs;
In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
State and local programs that are similar to the federal programs listed above are also generally not considered for public charge purposes.
In addition, and consistent with existing practice, cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, among other forms of earned benefits, do not support a public charge determination. Unemployment compensation is also not considered for public charge purposes.
Who does this new rule affect?
Whether a person is likely to become a public charge is usually considered when someone is trying to become a permanent resident (get a Green Card). It is also considered when someone applies for certain non-immigrant or other temporary benefits, for example by extending non-immigrant status within the United States, such as extending their B-2 tourist visa status.
There are certain groups of people who are either exempt from public charge, or may get a waiver for public charge when applying for a Green Card or other benefits with USCIS. These include:
U.S. citizens;
Refugees;
Asylum applicants;
Refugees and asylees applying for adjustment to permanent resident status;
Amerasian Immigrants (for their initial admission);
Individuals granted relief under the Cuban Adjustment Act (CAA);
Individuals granted relief under the Nicaraguan and Central American Relief Act (NACARA);
Individuals granted relief under the Haitian Refugee Immigration Fairness Act (HRIFA);
Individuals applying for a T or U Visa;
Individuals who possess a T or U visa and are trying to become a permanent resident (get a Green Card);
Applicants for Temporary Protected Status (TPS); and
Certain applicants under the LIFE Act Provisions
For further information on DHS' Final Rule, feel free to visit USCIS' website at Final Rule on Public Charge of Inadmissibility.
Should you or a loved one have any questions on the latest changes, please feel free to contact our office. Our attorneys look forward to answering all your questions and helping you through your process.