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Public Charge rule policy change

New Public Charge Rule

On Monday August 12th immigration released the new public charge rule that goes into effect October 15, 2019. Before since 1999, immigration agencies have interpreted “public charge” to mean a person who is “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.”

Under the 1999 rule, reliance on or receipt of noncash benefits such as SNAP, Medicaid, and housing vouchers/subsidies was not considered when determining whether someone is likely to become a public charge.

Inadmissibility Determinations: Prospective Determination Based on the Totality of the Alien’s Circumstances

  • The DHS Public Charge Inadmissibility Rule only applies to inadmissibility determinations for applications for admission and adjustment of status purposes, and sets a public benefit condition for extensions of stay or changes of status

  • This rule does not change the removal grounds administered by the Department of Justice

  • DHS will not consider the receipt of designated public benefits received by an immigrant who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status was a member of the U.S. armed forces, serving in active duty or in any of the Ready Reserve components. DHS also will not consider the receipt of public benefits by spouses and children of such aliens

  • DHS will not consider public benefits received by certain children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431, or who are entering the United States for purposes of attending an interview under INA 322

  • DHS will not consider the receipt of Medicaid benefits received: (1) for the treatment of an “emergency medical condition,” (2) as services or benefits provided in connection with the Individuals with Disabilities Education Act, (3) as school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law, (4) by immigrants under the age of 21, and (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy

  • In making a public charge inadmissibility determination under this final rule, DHS will at a minimum consider the immigrant’s age, health, family status, assets, resources and financial status, education and skills, the immigrant’s prospective immigration status and period of admission, and any sufficient Affidavit of Support

  • No single factor alone, including the receipt of public benefits, is outcome determinative: The determination of an immigrant’s likelihood of becoming a public charge at any time in the future must be based on the totality of the immigrant’s circumstances and by weighing all of the factors that are relevant to the immigrant’s case

  • Does not impact eligibility for public benefits; public-benefit granting agencies at the federal, state, and local level are in charge of administering and managing public benefits programs. This new rule does not eliminate access to any public benefits for which an alien may be eligible

  • The new rule does not create any penalty or disincentive for past, current, or future receipt of public benefits by U.S. citizens, including U.S. citizen children born to foreign nationals. The final rule does not apply to U.S. citizens, even if the U.S. citizen is related to an applicant who is subject to the public charge ground of inadmissibility

  • The public charge inadmissibility rule does not apply to humanitarian-based immigration programs such as refugees, asylees, and certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), victims of domestic violence (VAWA self-petitioners), or Special Immigrant Juveniles (SIJs)

Heavily Weighted Factors

Negative: The following factors will weigh heavily in favor of a finding that an immigrant is likely at any time to become a public charge:

  • The immigrant is not a full-time student and is authorized to work, but cannot show current employment, recent employment history, or a reasonable prospect of future employment

  • 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 before the immigrant applied for admission or adjustment of status on or after Oct. 15, 2019

  • The immigrant has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work, and he or she is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition

  • The immigrant has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds

Positive: The following factors will weigh heavily against a finding that an immigrant is inadmissible as likely at any time to become a public charge:

  • The immigrant has household income, assets, or resources, and support of at least 250 percent of the Federal Poverty Guidelines for the immigrant’s household size

  • The immigrant 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 immigrant’s household size

  • The immigrant has private health insurance appropriate for the intended duration of the immigrant’s stay.

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