Public Charge – Changing Rules
By: Angela Filippi (Law Clerk)
What is Public Charge Rule (In General)?
The concept of public charge is used by the U.S. government as a ground of inadmissibility and sometimes deportation. The Public charge rule applies to foreign nationals residing in the U.S. who are applying for a green card or an extension of their nonimmigrant status. It also applies to foreign nationals who are outside of the U.S. applying for immigrant or non-immigrant visas. The public charge rule considers whether the applicant will be self-sufficient once he/she changes his/her status or enters into the country as an immigrant. Factors to consider in a public charge analysis include age, health, family status, financial status, education, skills and presentation of declarations of support (sponsors that will guarantee financial support to applicants). The public charge rule also takes into consideration whether or not a foreign national has received public benefits from the U.S. government, such as: Medicaid, food stamps, housing benefits, children’s care, and others. Please see https://www.nafsa.org/regulatory-information/final-rules-public-charge-determinations
What are the changes to the Public Charge Rule (In General)?
The new public charge rule (August 14, 2019) extends the list of benefits the government can consider in determining whether an individual may become a public charge, specifically: an individual receiving any set benefits for more than 12 months within a 36-month period. Receiving two benefits in one month creates a cumulative effect and the time-period will be counted as two months instead of one. The decision on whether the individual will become a public charge at any time in the future is based on several factors (some of them listed above) and refers to the likelihood that the individual will eventually need public support. An individual who is not a full-time student and has work authorization but can’t show any evidence of current employment or future employment may be considered a public charge. On the other hand, an individual with work authorization, steady income and private health insurance is most likely exempted from becoming a public charge. Additionally, the public charge rule does not apply to refugees, asylees, VAWA, green card holders seeking U.S. citizenship or renewal, and others. Please see https://www.uscis.gov/greencard/public-charge
What are the effects?
The new rule was scheduled to go into effect on October 15, 2019, however on October 11, 2019 the District Courts of New York, California, Washington, Illinois and Maryland were granted injunctions to prevent the enforcement of the new rule and the effective date was consequently postponed. On appeal, the 9th and the 4th Circuits terminated some of the injunctions, but the government is still bound by the pending cases in New York and Illinois. There is a real possibility that the injunctions will be lifted nationwide. Implementation of the new rule would substantially affect immigrants. It would force their choice not to obtain necessary benefits because of fear of losing their ability to stay in this country or the separation from their families. Additionally, it would target mostly individuals in need, in poor health conditions or not fluently speaking English.
Visit our website http://americanvisas.net to contact one of our attorneys to discuss this imminent rule change and how it may affect your plans to live in the U.S.