On August 12, 2019, the U.S. Department of Homeland Security (DHS) announced a new regulation that prescribes how the Department will determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The regulation addresses U.S. Citizenship and Immigration Services (USCIS) authority to permit an alien to submit a public charge bond in the context of adjustment of status applications and makes nonimmigrant aliens who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status. This new rule will take effect on October 15, 2019.
Is this a new law? What has changed? Who is affected?
Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. A person who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. The new regulation builds on currently existing regulations, that allows immigration officers to deny permanent residency or visas to people deemed likely to become a taxpayer burden.
In determining inadmissibility, USCIS defines “public charge” as an individual who is likely to become “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.” In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.
The new regulation states that a public charge will be defined as an immigrant who “is more likely than not“ to receive one of the restricted public benefits for an aggregate 12 months or longer during a 36-month period.
This new rule also makes certain nonimmigrants in the United States who have received designated public benefits below ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.
Which types of public assistance are considered under the regulations as “restricted public benefits?”
The rule defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.
Which types of public assistance are exempt from the public charge rule?
Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge. The regulation excludes from the public benefits definition:
Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children;
Public benefits received by certain international adoptees and children acquiring U.S. citizenship;
Medicaid for aliens under 21 and pregnant women;
Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and
Medicaid benefits for emergency medical services.
Under the agency guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:
Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
Children's Health Insurance Program (CHIP)
Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
Child care services
Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
Emergency disaster relief
Foster care and adoption assistance
Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
Job training programs
In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
Non-cash benefits under TANF such as subsidized child care or transit subsidies
Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans' benefits, and other forms of earned benefits
Who is exempt from this public charge inadmissibility rule?
This regulation does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.
Public Charge Bond
This rule also explains how USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.
It is important to remember that generally, lawful permanent residents who currently possess a "Green Card" cannot be denied U.S. citizenship for lawfully receiving any public benefits for which they are eligible. If you are affected by this development and have questions, please contact us. We are here to help! Follow us on Instagram, Twitter, Facebook, LinkedIn or Tumblr for up-to-date immigration news.
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