On August 13, 2019, the Trump Administration released the text of a new “public charge” rule. The 837-page rule will significantly expand the government’s use of a “public charge” provision of the Immigration and Nationality Act to bar the admission of immigrants who are deemed likely to become a “public charge.” There is still a lot of uncertainty surrounding this new rule. It is already being challenged in courts.
The rule likely will go into effect October 15th and will not be retroactive. The rule would cover all immigrants and non-immigrants seeking admission to the US, adjustment of status, and extensions and changes of status for non-immigrants. The public charge rule would not apply to those who are already lawful permanent residents (Green Card holders). It also would not apply to asylees or refugees, U.S. citizen children or other U.S. citizen family members.
The rule makes inadmissible aliens who receive “one or more designated public benefits … for more than 12 months, in the aggregate, within any 36-month period, (such that, for instance, receipt of two benefits in one month counts as two months)” including any cash benefits for income maintenance, Supplemental Security Income, TANF, SNAP, most forms of Medicaid, and certain Section 8 housing programs. Other public benefit programs that would not be considered a negative factor in an immigrant’s visa or green card application include adoption benefits, emergency and disaster relief; WIC; CHIP; student financial aid and some other state benefits.
Additionally, the new rule introduces “totality of circumstances” balancing test for determining whether an alien is likely to become a public charge in the future. The following criteria will be considered in public charge determination:
- The alien’s age
- Family status
- Financial status
- Education and skills
- An affidavit of support submitted by the alien’s sponsor
- Any other factor relevant to the likelihood of becoming a public charge
The rule establishes four factors that will “generally weigh heavily in favor of a finding that an alien is likely to become a public charge.” And three factors that will “generally weigh heavily in favor of a finding that an alien is not likely to become a public charge.”
Heavily weighted negative factors include:
- If an applicant who is not a full-time student and is authorized to work is unable to demonstrate “current employment, recent employment history or no reasonable prospect of future employment”
- If the immigrant “has received or has been certified or approved to receive one or more public benefits … for more than 12 months in the aggregate within any 36 month period, beginning no earlier than 36 months immediately preceding the alien’s application for admission or adjustment of status. The lookback period can begin no earlier than 36 months before an immigrant’s application for admission or adjustment of status on or after October 15, 2019.
- If an applicant has medical condition that is likely to require extensive medical treatment or that will interfere with the alien’s ability to provide for oneself and applicant has no medical insurance
- If the “alien had previously been found inadmissible/deportable on public charge grounds by an Immigration Judge
Heavily weighted positive factors include:
- If the alien’s “household has income, assets, or resources, and support . . . of at least 250 percent of the Federal Poverty Guidelines for the alien’s household size.”
- If the “alien is authorized to work and is currently employed in a legal industry with an annual income . . . of at least 250 percent of the Federal Poverty Guidelines for the alien’s household size.”
- If the “alien has private health insurance” that is “appropriate for the expected period of admission,” except health insurance for which an immigrant receives premium tax credits under the Patient Protection and Affordable Care Act (ACA).
The rule does not change the requirement to file affidavit of support meeting the statutory sponsorship and income requirements of at least 125 percent of the Federal Poverty Guidelines for the alien’s household size. Under the rule, however, an affidavit of support would not be dispositive, and its weight would depend on the “likelihood that the sponsor would actually provide the statutorily-required amount of financial support” in the judgment of USCIS.
Finally, the rule gives discretion to DHS to allow a lawful permanent resident applicant determined likely to become a public charge to submit a “public charge bond” as a condition of approval. The amount of the bond must be at least $8,100, which is breached in full if the applicant receives any public benefits for more than 12 months in the aggregate within any 36-month period after becoming a lawful permanent resident.