A Summary of What You Should Know About the Proposed “Public Charge” Policy

On October 10, 2018, the Department of Homeland Security (DHS) published a proposed policy to change the “public charge” rules.  I’ve received a lot of questions from people about how the proposed policy change regarding the public charge definition could affect their immigration cases.  One important thing I would like to mention is that this rule would not be retroactive. This means that public benefits a person has received prior to the start of the new rule, will not be counted against them. Another thing worth mentioning is that this public charge test would not look at U.S. citizen children or other family members who are eligible to receive public benefits as a disqualifying factor.  Also, this rule is not final at this time.  DHS allows a 60-day comment period, which would end on December 10, 2018.  They will consider the comments before issuing a final rule.

This new rule would allow the government to look at the individual applicant’s earning potential and use of certain public benefits to determine if that person is likely to become a public charge.  This is a shift from the current policy, which generally only looks at the income of the petitioning sponsor.  The new rule’s purpose is to ensure applicants for U.S. residency do not depend on government aid for survival, either when applying for an extended stay in the U.S. or coming to the U.S. as an immigrant.

Definition of Public Charge

Under the old definition of public charge, you were a public charge if you were likely to become primarily dependent on the government for survival. You were dependent if you received certain cash benefits, including supplemental security income, temporary assistance for a needy family, and other general relief. Under the new rule, you may be found primarily dependent on the government, and thus a public charge, even if you only receive certain non-cash benefits.

These cash benefits and non-cash benefits that the government views as evidence of being a public charge are called public benefits. If USCIS finds you are a public charge, then you may be inadmissible to the United States. The best way to avoid being barred from entering the U.S., for this reason, is showing you have enough financial assets, in the U.S. or abroad, to sustain yourself and whoever may be entering with you.

Public Benefits

DHS has defined what does and does not constitute a public benefit in its proposal. As mentioned above, non-cash benefits can be a public benefit under the new rule. If you receive a public benefit or would be eligible for them based on your financial needs, you may be barred from admission as an immigrant to the U.S.

Non-cash benefits considered include:

• Medicaid.
• Medicare Part D Low Income Subsidy.
• Supplemental Nutrition Assistance Program (SNAP).
• Benefits for institutionalization for long-term care.
• Section 8 Housing Choice Voucher Program.
• Section 8 Project-Based Rental Assistance.
• Public housing.

Not all non-cash benefits are considered a public benefit under the new rule. USCIS will not consider certain government benefits in determining whether you are a public charge. Non-cash benefits excluded from consideration include:

• Emergency medical assistance.
• Disaster relief.
• National school food programs.
• Foster care and adoption.
• Head Start.
• Child Health Insurance Program (CHIP).
• Earned Income Tax Credit.
• Subsidized health insurance under the Affordable Care Act.
• Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).
• Housing assistance.
• Energy benefits. For example, the Low Income Energy Assistance Program (LIHEAP), which assists families with rising energy costs.

In general, the amount of assistance you receive is a good gauge for whether you are receiving a public benefit. The more assistance you receive, the more likely USCIS will find you are a public charge. Thus, it is important that when you apply for a change of status or to immigrate to the U.S., that you have enough financial support and are no longer receiving public benefits if you have in the past.

Nonimmigrants

Although nonimmigrants were not subject to the public charge standard before, they are now if interested in extending their stay. Nonimmigrants must show they are not a public charge when applying for a change of status or extension of stay. Nonimmigrants must further show they are not receiving and are not likely to receive public benefits in the future.

Exemptions from Public Charge Rule

First, public charge does not apply when a person is applying for naturalization to become a U.S. citizen.  Next, certain groups are admitted to the United States even if they meet the definition of public charge. These groups include refugees, asylees, and Afghans and Iraqis with special visas. The new rule also exempts immigrants who served in the U.S. armed forces. Individuals applying for T or U visas, or those applying for lawful permanent residence who already possess a T or U visa are also exempt.

Federal Public Benefit

Definition

·        Any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and ·        Any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States.   The definition of federal public benefit does not include the following: ·        Any contract, professional license, or commercial license for a nonimmigrant whose visa for entry is related to such employment in the United States or to a citizen of a freely associated state; ·        Benefits where there is a reciprocal treaty agreement for payment with another country for nonimmigrants aliens authorized to work or aliens admitted as lawful permanent residents; or ·        Professional license issued to or renewed by a foreign national not physically present in the United States. ·        Medical assistance for an emergency medical condition. ·        Short-term, non-cash, in-kind emergency disaster relief. ·        Public health assistance for immunizations for immunizable diseases and for testing and treatment of symptoms of communicable diseases. ·        Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) as specified by the Attorney General, which (i) deliver in-kind services at the community level, including through public or private nonprofit agencies; (ii) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient’s income or resources; and (iii) are necessary for the protection of life or safety. ·        Programs for housing or community development assistance or financial assistance administered by the Secretary of Housing and Urban Development, any program under title V of the Housing Act of 1949 or any assistance under section 1926c of title 7 which the alien is receiving since before August 22, 1996. ·        Any benefit payable under title II of the Social Security Act to an foreign resident who is lawfully present in the United States, any benefit if nonpayment of such benefit would contravene an international agreement described in section 233 of the Social Security Act, any benefit if nonpayment would be contrary to section 202(t) of the Social Security Act, or any benefit payable under title II of the Social Security Act to which entitlement is based on an application filed in or before August 1996. ·        Any benefit relating to the Medicare program to an alien who is lawfully present in the United States with respect to benefits payable under part A of such title, who was authorized to be employed with respect to wages attributable such benefits. ·        Any benefit payable under the Railroad Retirement Act of 1974 or the Railroad Unemployment Insurance Act to an alien who is lawfully present in the United States or to an alien residing outside the United States. ·        Receipt of benefits on or before August 22, 1996 (including SSI and SNAP (Food Stamps)).