DHS to Standardize “Public Charge” Definition

The Department of Homeland Security announced the long-rumored amendment to the Government’s definition of “public charge” and its limiting effects on immigrants and nonimmigrants seeking admission to the United States.

On September 22, 2018, the Department of Homeland Security published an unofficial proposed rule seeking to change the way in which consular and immigration officers are to define whether or not an alien seeking admission to the United States (permanently or temporarily) would become a public charge. The official proposal will soon be published on the Federal Register. The proposal affirms that the United States’ immigration system has long been founded on the grounds that foreigners seeking entry into the United States should prove that they would not become “public charges” once in the United States.

Titled “Inadmissibility on Public Charge Grounds,” the proposed rule seeks to standardize the definition of “public charge” when consular or immigration officers are reviewing applications for nonimmigrant visas, adjustment of status to permanent resident, or extension and change of status for nonimmigrants. As noted by DHS, the main purpose of the rule is to “better ensure that applicants for admission to the United States and applicants for adjustment of status to lawful permanent resident who are subject to the public charge ground of inadmissibility are self-sufficient, i.e. do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations.”

In the proposed rule, reviewing officers will decide whether a foreigner applying for an immigration benefit is a public charge based on whether a person has received certain public benefits above certain defined threshold amounts or for longer than certain periods of time. It is important to note that, according to the current version of the proposed rule, no immigrant currently using benefits would be penalized for that in the future (except for having used TANF and SSI, which are already penalized under current guidelines). As such, once the rule goes into effect, which could not be until early 2019, consular and immigration officers will need to consider the receipt of designated public benefits above certain thresholds as a heavily weighed negative factor. Therefore, immigrants will only be subjected to the public charge rule if they have received certain public benefits on or after the date that the final rule is published. The rule would also make nonimmigrants who receive or are likely to receive designated public benefits above the designated threshold generally ineligible for change of status and extension of stay.

The list of public benefits which will heavily weigh against an applicant are as follows:

• Federal, state, local, or tribal cash assistance for income maintenance
• Temporary Assistance for Needy Families (TANF)
• Supplemental Security Income (SSI)
• Medicaid (limited exceptions for Medicaid benefits paid for an “emergency medical condition” and certain disability services related to education)
• Medicare Part D Low Income Subsidy
• Supplemental Nutrition Assistance Program (SNAP, or food stamps)
• Institutionalization for long-term care at government expense
• Section 8 Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance
• Public Housing

The first three listed forms of public benefits are considered cash benefits, and were previously considered as negative factors by DHS. The expansion of inadmissibility based on public charge grounds now includes the rest of the above-listed factors.

There is a complicated rubric, or points system, that consular and immigration officers will be using to determine whether the immigrant in question would likely be a public charge. Please note, the government is not stating that any use of a public benefit will make an immigrant inadmissible, but rather that it would weigh heavily against an immigrant in regard to the totality of circumstances determination that a consular or immigration officer would ultimately make.

The current draft proposes three possible tests that, should the threshold be reached, would most likely (but not certainly) disqualify an immigrant from a visa or a green card:

• Individual use of “monetized” benefits over 12 consecutive months that total more than 15 percent of federal poverty guidelines for a single-person household ($1,821 in 2016), or
• Individual use of “non-monetized” benefits for more than 12 months in any previous 36-month period, or
• Any individual use of “monetized” benefits plus individual use of “non-monetized” benefits for more than nine months in any previous 36-month period.

If an applicant meets one of these tests, this will generally lead to a consular or immigration officer labeling an applicant as a “public charge” and then denying the case if, and only if, there is no countering evidence showing that the applicant in question would not be using such benefits in the future. There are several manners by which an applicant could overcome such a hurdle, by providing affidavits of support or other forms which, for example, demonstrate that the applicant has a sponsor that would step in should the applicant need assistance in the future. These policies are already in place, but it is possible that the current administration will make these methods more restrictive.

Moreover, if an applicant maintains (and proves that they will maintain) a household income between 150 and 250 percent of the Federal Poverty Guidelines (household income of $37,650 to $62,750 for a family of four as of 2018) would be a positive factor. If the applicant maintains a household income over 250 percent of the Federal Poverty Guidelines, this would be considered as a “strongly weighted positive factor” in regard to the proposed rule. In addition, in some cases wherein an applicant has been deemed a “public charge,” the government would allow the immigrant or a sponsor to put up a bond of $10,000 or more, which would then be forfeited should the immigrant end up using social services.

There are certain categories of immigrants which will not be subject to inadmissibility based on public charge grounds. These categories include asylum seekers, refugees, and other categories of vulnerable individuals and, as such, they are not impacted by this rule. When considering receipt of public benefits in the public charge inadmissibility determination, DHS would also not consider any public benefits received by aliens serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or the spouse or child of the service member.

It is important to note that, based on the current proposal, DHS would not consider disaster relief, emergency medical assistance, benefits received by an alien’s U.S. citizen children, and Medicaid benefits received by children of U.S. citizens and potential adoptive children of U.S. citizens.

The rule proposal will be officially published in the Federal Register in the coming days, and once the proposal is published, it will be subject to a 60-day public comment period. After the public comment period is done, the DHS is required to review the submitted comments. Once the review period is over, the DHS is expected to publish the final rule.

If you are seeking to apply for a green card or other immigration benefits, and you are concerned whether this rule may apply to you, it is best to seek legal advice to ensure whether or not you will be affected. The rule, as it stands, spans 447 pages and includes nuanced and complex guidelines which officers will be expected to follow once the final rule is published and enacted. It is expected that many immigrants, including those not subject to the rule, will begin to refuse public benefits in fear of and through a misunderstanding of the guidelines being proposed. Before doing so, it is best to ensure that you are taking the appropriate steps to protect yourself and your family, in immigration matters and in others. If you, or your family, have received, are currently receiving, or plan to receive public benefits please contact the Margolis Law Firm to review your case.