By: Sasha Watson-Sankey, Esq., HAWM Law
The US Supreme Court recently lifted a nationwide injunction barring implementation of the new public charge rule. As a result, the US Department of Homeland Security has announced it will begin applying the new standards to applications received after the February 24, 2020. The much talked about public charge issue is not new to US immigration law. The public charge exclusion or removal provisions have been part of federal immigration law for more than 100 years.
The law was designed to limit government spending by identifying foreign nationals who may depend on government benefits for their survival. In essence, the public charge rule is a self-sufficiency test that allows the government to deny admission or deny adjustment to lawful permanent resident status to anyone likely to become a public charge. An admitted individual may also be subject to removal from the United States based on a separate public charge ground of deportability, but this ground has rarely been employed in the past.
Who is a public charge?
A public charge, although not defined by statute or regulations, is referred to as an immigrant who is likely to become primarily dependent on the government for subsistence. It requires that aliens within the nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.
The public charge test does not apply to humanitarian immigrants such as refugees; asylees; survivors of domestic violence, trafficking and other serious crimes; special immigrant juveniles; and certain individuals paroled into the U.S. The rule also does not apply to lawful permanent residents seeking US citizenship.
What is the new public charge test?
The test under the new rule will expand the factors an officer will consider in determining whether an applicant is a public charge. The officer must consider all circumstances and should not rely on any single factor. The officer will consider all of the factors and must weigh both the positive and negative factors to determine whether the applicant is likely to become a public charge. These factors include, but are not limited to:
- Applicant’s age: age is a negative factor if the applicant is under eighteen and unaccompanied; advanced age may also be a negative factor if viewed as reducing the applicant’s employability and increasing the applicant’s possible healthcare costs.
- Applicant’s health: includes an evaluation of health issues that could affect the applicant’s prospects for employment, future medical expenses, and/or the applicant’s ability to provide for themselves or their dependents. A diagnosis with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for him- or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance will weigh heavily in favor of a public charge finding.
- Applicant’s family status: This factor considers the number of dependents for whom the applicant would have financial responsibility. The fact of having many dependents may be a negative factor in an applicant’s case.
- Applicant’s and sponsor’s assets, other financial resources, and financial status: The alien has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size would weigh heavily against a public charge finding.
- Applicant’s education, work experience, and skills: This includes length of employment, frequency of job changes, employment plans, and job offers. An alien who is not a full-time student and is authorized to work, but is unable to demonstrate current employment, and has no employment history or no reasonable prospect of future employment may be deemed a public charge.
- Receipt of Public Benefits: Current or prior receipt of public assistance by an applicant, sponsor, or their family members may be a negative factor and is relevant to determining whether the applicant is likely to become a public charge. If an applicant’s demonstrated financial circumstances are much improved since past receipt of public benefits, which is a positive factor (whereas being in similar financial straits would be a negative factor).
What type of public benefits are included?
Not all public benefits are relevant to the public charge determination. Public charge adjudications would only account for receipt of designated public benefits, including state and local cash assistance programs, as well as federal programs such as Supplemental Security Income (SSI) and Temporary Assistance for Needy Families (TANF), Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), any benefit provided for institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing.
The rule does not include consideration of emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, and head start.
Additionally, the inquiry focuses on the receipt of benefits by the individual alien applicant, not their dependents and other household members. Similarly, any income derived from such benefits received by other household members could not be considered as part of the alien applicant’s household income.
Based on the new rule, a person not receiving public benefits could still be denied admission if the government determines that the individual is likely to use benefits in the future and therefore become a public charge.
What to expect next?
Individuals going through the immigration process can expect the following changes and impact from the new public charge rule:
- More scrutiny of individuals’ age, health, income, family size, education and skills, and the affidavit of support. The government will take a closer look at the financial documents submitted in support of applications including bank statements, credit report and tax returns.
- Updated versions of Forms I-129, I-485 I-539, I-864, and I-864EZ and corresponding instructions. These updated forms must be used beginning February 24, 2020, otherwise applications and petitions using incorrect editions of the forms will be rejected
- New forms regarding declaration of self-sufficiency requiring applicants to list, among other things, all assets/resources, liabilities/debt, credit score and provide a copy of a recent credit report, proof health insurance or an explanation as to how the alien plans to pay for reasonably anticipated medical costs
- USCIS has clarified that it will not consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before February 24, 2020, when deciding whether the alien is likely at any time to become a public charge under the new.
Applicants for immigration benefits are encouraged to seek the advice of competent immigration counsel in order to assess whether they may be subject to this rule and how to strategically prepare their case and evidence to successfully overcome a public charge finding.