A Four-Part Series

What’s In The New Rule?

While the test for whether someone is likely at any time to become a public charge will still be prospective as required by the statute, the new rule redefines the definition of a public charge. Instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rule defines a public charge as a person who receives any number of public benefits for more than an aggregate of 12 months over 36 months period. Each benefit used, counts toward the 12-month calculation. If the applicant receives two different benefits in one month, it counts as two-months use of benefits.

The rule expands the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. Under the new rule, Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), 'Section-8' housing assistance, and federally subsidized housing will be used as evidence that a green card or visa applicant, is inadmissible under the public charge ground.

The rule also considers that all use of cash aid, including not just Temporary Assistance for Needy Families (TANF) and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.

Benefits received by family members of the immigrant will still not be considered in the public charge determination. Additionally, Medicaid received by applicants while under age 21 or while pregnant is not considered. Also, the rule does not change long-standing policies that allow immigrants to access emergency medical care and disaster relief without public charge repercussions.

It is very important to remember that prior receipt of benefits is only one factor in the public charge determination. The new rule sets out criteria for considering several factors in assessing the likelihood that a person will need more than 12 months of public assistance in aggregate over 36 months in the future. The rule also elaborates on criteria for considering financial status, family size, age, education, skills, and employment, among others.

The rule allows immigration officers to consider English proficiency (positive), or lack of English proficiency (negative), medical conditions and availability of private health insurance, and past use of immigration fee waivers. The rule requires immigrants to attach a Declaration of Self-Sufficiency when applying for a green card in addition to the many forms already required.

The rule creates “heavily weighted negative factors” and a couple of “heavily weighted positive factors.”

It is a heavily weighted negative factor to receive more than 12 months of public benefits in the aggregate over the 36 months before applying for adjustment or admission. Heavily weighted positive factors include having a household income of at least 250% of the federal poverty level ($64,375 for a family of 4) and having private health insurance. It is not clear to me how an officer should decide a case that has a heavily weighted factor or both heavily weighted negative and positive factors.

Bonds are possible where an immigration officer finds inadmissibility based on public charge. Bonds will be highly discretionary. The new rule says that heavily weighted negative factors in a case will generally make an applicant ineligible for a bond.

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

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