African Immigrants in the United States of America

The Dilemmas of the New Public Charge Rule - Part I

By J Reynold Weeks

A Four-Part Series

About 2.1 million Africans migrated to the United States of America in 2018, according to official records. This number increases to 4.2 million when those from the Caribbean nations, included.

Top countries of origin for African immigrants were Nigeria 221,000 (14 percent); Ethiopia 164,000 (10 percent); Egypt 143,000 (9 percent); Ghana 121,000 (8 percent). Altogether constituting 41 percent. Four States have more than 100,000 African born immigrants: New York has 164,000; California 155,000; Texas 134,000 and Maryland 120,000.

Approximately 68,000 African born immigrants reside in the Greater Los Angeles area. For the past; 10 years, those who recently immigrated are predominantly refugees. About 27 percent. Those who escaped civil wars and ethnic conflicts in their various countries of origin.

What is Public Charge?

A public charge has historically been a person dependent on the government for financial and material support.

With the new rule, it now becomes a test to determine if someone applying for permanent residence through a relative or a visa to enter the United States is likely to depend on public benefits in the future.

On August 14, 2019, The Department of Homeland Security (DHS) published a final rule related to public charge in the Federal Register. The Public Charge rule which, was to take effect as of October 15, 2019, became enforced after the US Supreme Court on January 27, 2020, lifted a nationwide injunction barring implementation.

The new rule will mainly impact those seeking permanent residence (green card) status through family member petitions, or, for a visa to enter the United States. No other types of immigration cases impacted. It is advisable immigrants consult with immigration experts who understand the public charge rule, to learn whether the public charge applies to them or their families. Many categories of immigrants are exempt from public charge.

Public Charge Exemptions

• Refugees and Asylees

• Special Immigrant Juvenile Status (SIJS) a special way for minors currently in the US to adjust their status and become permanent residents.

• U Visa – Set aside for victims of crimes and their immediate family members.

• VAWA self-petitioners –Violence Against Women Act

• T Visa – These are visas for victims of human trafficking

• DACA applicants – Deferred action for childhood arrivals. However, if they later apply for a green card through a family member, they will have to go through a public charge test.

• TPS applicants – Temporary Protected Status: designated countries

• Most legal permanent residents - unless you travel outside of the US for more than 180 days.

• US citizens

• Others – Amerasians; Afghan and Iraqi military translators; certain Cuban and Haitian adjustment applicants; certain Nicaraguans; and Central Americans under NACARA- The Nicaraguan Adjustment and Central American Relief Act passed in 1997; Soviet and Southeast Asian Lautenberg parolees.

A Few Important Points Regarding the Public Charge

• The new rule interprets a provision of the immigration and Nationality Act (INA) about inadmissibility. The inadmissibility ground at issue... a person is inadmissible if they are likely to become a public charge. INA 212(a)(4) applies to individuals seeking admission into the United States or applying for adjustment of status. The provision of the law does not apply to all immigrants, as stated.

• Public Charge and this rule do not apply in the naturalization process, through which lawful permanent residents apply to become United States citizens.

What Is The Current Law?

Currently, immigration officers decide public charge by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support. Primary dependence refers to reliance on cash-aid for income support or long term care paid for by the government.

To decide whether an individual is a public charge, immigration officers rely on multiple factors specified in the INA. They must also rely on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor, indicating that the sponsor will financially support the immigrant. This affidavit of support offers strong evidence that the immigrant will not become primarily dependent on the government.

Under existing policy, immigration officers also consider whether an immigrant applying for a green card or admission to the United States has used cash aid such as “Welfare” or “SSI” (Supplemental Security Income) or long-term institutionalized care in the past. Immigrants who have used this form of assistance will have to show that it is not likely they will need these resources for support in the future.

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The use of publicly-funded health care, nutrition, and housing programs are not currently considered negative factors for purposes of public charge. Beginning October 15th, 2019, according to the new rule, some of these benefits will be considered in the public charge determination. It must be noted that this is a drastic change from the longstanding policy.

Also, the new rule will apply only to adjustment of status applications postmarked on or after October 15th, 2019. It will not affect pending applications postmarked before that date.

Individuals seeking to enter the United States apply at consulates abroad. At these consulates, the officers use what is referred to as the Foreign Affairs Manual (FAM) as guidance on how to make decisions.

'Dilemmas of the New Public Charge Rule - Part II' will be in the next publication.