The Trump Administration has made numerous changes in immigration policy. Many of those changes have had the effect of reducing or limiting legal immigration for thousands of individuals. One of the changes that our Virginia immigration attorneys often have to explain to individuals is the Public Charge Rule. In this article, we discuss some of the facts about the rule that can help you understand how the Public Charge Rule might impact you or a family member.
The Public Charge Rule
When a person seeks admission to the United States under various visas or applies for a green card, the person’s application is denied under the public charge standards of the Immigration and Nationality Act (INA) if the person is likely to become a “public charge” in the future. Policies in place since 1999 state that a person is a public charge if that person is likely to need long-term care paid for by government funds or is likely to require government cash assistance for income maintenance.
To determine whether an applicant is likely to become a public charge, immigration officers consider numerous factors outlined in the INA, such as health, age, family status, resources, assets, financial status, skills, and education. The officers may also rely upon an affidavit of support from the immigrant’s sponsor stating that the sponsor agrees to provide financial support for the immigrant. Immigration officers also consider whether the applicant has received various forms of welfare in the past, such as TANF (food stamps) or SSI (disability benefits).
In the past, receipt of or use of publicly funded programs that were not intended for income maintenance have not been considered as disqualifying factors under the public charge rule.
On August 14, 2019, DHS issued the Final Rule related to the INA public charge ground of inadmissibility. The rule is scheduled to become effective on October 15, 2019. Under the new rule, many of the public benefits that did not count against an immigrant will now result in the immigrant being denied admission or denied a green card on the public charge grounds.
The list of public benefits that can qualify as a public charge will be greatly expanded and may impact many individuals. Furthermore, the applicant is considered a public charge if the applicant used one or more of the services on the expanded list for a total of 12 months during a 36-month period. If the applicant received multiple benefits during a single month, the benefits count individually toward the 12-month total (i.e. two benefits per month would count as two months).
The new public charge rule applies to aliens seeking to change their status to a permanent resident alien (green card), immigrants applying for admission, and aliens who have a nonimmigrant visa and want to extend their stay or change their status. The rule does not apply to certain individuals who are exempted by Congress.
Effect of Changes to the Public Charge Rule on Status Applicants and Nonimmigrants
The changes in the public charge policy also impact certain nonimmigrants and applicants who are seeking an adjustment of status. Under the new rule, adjustment of status applicants who are subject to inadmissibility under the public charge rule are now subjected to a “totality of circumstances” test. Asylees, refugees, and certain special immigrant categories are exempt from the new test.
Applicants will be required to complete a Declaration of Self-Sufficiency (Form I-944) and provide information regarding their income, age, education, financial abilities, household size, receipt of public benefits, health insurance coverage, health conditions, credit history, and credit score. The information is used to determine whether the applicant may be unable to care for himself or herself, thereby becoming a public charge.
Nonimmigrants are not subject to the new totality of circumstances test. However, the new public charge rule impacts some nonimmigrants seeking to change their status or extend their stay in the United States. Nonimmigrants who are not exempt from the public benefits condition will be required to report whether they receive or are certified to receive certain public benefits on or after October 15, 2019. If the nonimmigrant received public benefits for more than 12 months within a 36-month period since they obtained their nonimmigrant status, their current application could be negatively impacted.
New Public Charge Rules Temporarily on Hold but Employers and Applicants Still Need to Be Prepared
Dozens of lawsuits have been filed throughout the nation trying to stop the enhanced scrutiny of applications based on the broadened definition of a public charge and new tests used to determine if a person is likely to become a public charge in the future. Federal district judges in five states (California, Illinois, Maryland, New York, and Washington) have blocked the implementation of the DHS revised public charge rules by issuing injunctions.
At this time, the public charge test continues under the 1999 guidelines. However, the new rules could be implemented at any time, depending on how the current cases move through the judicial system. The administration could attempt to enact new limitations based on public charge issues, such as its intention to refuse visa applications for immigrants who cannot prove that they can pay health care costs or pay for health insurance coverage beginning November 3, 2019.
Because of the uncertainty in the changes related to public benefits for immigrants and nonimmigrants, employers should be prepared for potential changes in their workforce. Employers could find it more difficult to extend the status of some skilled workers or switch an employer from a student visa to an H-1B. It could also take longer to have applicants approved if they must supply additional information and wait for an enhanced review.
Contact a Virginia Immigration Attorney for More Information
Our Virginia immigration attorneys are monitoring this matter closely. If you have questions or need help with an immigration matter, please schedule a consult with one of our experienced immigration attorneys for assistance.
Posted in: Immigration
posted on: November 5, 2019