NEW PUBLIC CHARGE RULE
(Effective February 24, 2020)The Public Charge Rule is one of the rules of inadmissibility under the Immigration and Nationality Act (INA) that consider immigrants and non-immigrants inadmissible to the U.S. if they are found not self-sufficient and will rely on public benefits as determined based on the totality of circumstances.
The new Public Charge Rule affects applicants for immigrant and nonimmigrant visa who are seeking their respective visas either through adjustment of status (immigrants) or change/extension of status (nonimmigrants) or through consular processing (both immigrants and non-immigrants).
The rule shall apply also to Lawful Permanent Residents (LPR) who have been out of the U.S. for more than 6 months and who seek to re-enter the U.S. because they are considered “applicants for admissions” and thus all rules on inadmissibility shall apply. Thus, LPRs who often out of the U.S. for more than 6 months may be denied entry to the U.S. if they are found to be inadmissible under the new public charge rule. Thus, being an LPR is no longer a guarantee for uneventful entrance in the U.S.
Yes. The New Public Charge Rule now covers nonimmigrant applicants and those nonimmigrants seeking change/extension of status. This final rule now requires them to prove that, since obtaining the nonimmigrant status they seek to extend or to change, they have not received public benefits (as defined in the rule) over the designated threshold.
In the old rule, an applicant for Green Card whose Petitioner has insufficient income can simply submit a Joint Sponsor’s Affidavit of Support that supplements the Petitioner’s apparent inability to support and often did not raise any public charge issue. However, the new rule considers requirement of a Joint Sponsor as a negative factor. Interestingly, a Petitioner who merely earns just about 125% under the Federal Poverty Guidelines (FPG) is a negative factor and income of at least 250% under the FPG based on the Household Size is positive. All other factors such as applicant’s age, health, employability, prior receipt of public benefits, among others, shall be weighed in together with all other negative and positive factors to arrive at a determination of public charge based on rule of “totality of circumstances”.
Lastly, the new rule now defines ‘‘public charge’’ to refer to an alien (both immigrant and non-immigrant applicant alike) who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). Please take note that this rule is retrospective for non-immigrants (“if they have ever received”) but prospective in nature for immigrants or adjustment applicants (“more likely than not to receive”).
- U.S. citizens, even if the U.S. citizen is related to a noncitizen who is subject to the public charge ground of inadmissibility;
- Aliens whom Congress exempted from the public charge ground of inadmissibility, such as, but not limited to: Refugees, Asylees, Afghans and Iraqis with special immigrant visas, Certain nonimmigrants who are trafficking and crime victims, Individuals applying under the Violence Against Women Act (VAWA), Special immigrant juveniles, and those to whom DHS has granted a waiver of public charge inadmissibility (see USCIS Website).
Non-exempt Applicants for Adjustment of Status (USCIS Form I-485) are now required to submit a new USCIS Form I-944 (Declaration of Sufficiency) together with the usual Affidavit of Support (USCIS Form I-864) that requires the applicants to submit a host of financial documents, health records, credit history, education records and credential certifications, among others. This shall complicate an otherwise simple adjustment application process.
Public Benefits that are Considered in Determining Public Charge
- Any federal, state, local or tribal cash assistance for income maintenance
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families
- Federal, State, local, or tribal cash benefit programs for income maintenance (often called General Assistance in the state context, but which may exist under other names)
- Supplemental Nutrition Assistance Program (formerly called Food Stamps)
- Section 8 Housing Assistance under the Housing Choice Voucher Program
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
- Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
- Most forms of federally funded Medicaid (with certain exclusions) and Medi-CAL benefits
Benefits received by U.S. service members serving in active duty or in any of the Ready Reserve components of the U.S. armed forces and their spouses and children
Benefits received by children who are born to or adopted by, U.S. citizens living outside the United States. Also, benefits received by children, including adopted children, who will acquire U.S. citizenship under section 320 of the INA, 8 U.S.C. 1431, or children, residing outside the United States, of U.S. citizens who are entering the United States for the purpose of attending an interview under section 322 of the INA, 8 U.S.C. 1433.
Certain Medicaid benefits received:
- For the treatment of an “emergency medical condition;”
- As services or benefits under the Individuals with Disabilities Education Act;
- As school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
- By aliens under the age of 21; and
- By pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.
Benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for another person.
Benefit received by one or more members of the applicant’s household unless the applicant is also a listed beneficiary of the public benefit (USCIS Website).
If an applicant for immigrant visa is found inadmissible based on public charge only, the USCIS, may in its discretion, require the applicant to file USCIS Form I-945 (Public Charge Bond) upon payment of the required filing fee. Applicants cannot unilaterally submit this form without being notified by USCIS that Public Bond is required to overturn the finding of public charge.
In a Public Charge Bond, the bond obligor (a natural person or company) pledges a certain amount of money (minimum of $8,100 in cash or surety bond) to guarantee the United States that the applicant will not be a public charge and to comply with the provisions of the bond. The purpose of the bond is to guard against the immigrant who is receiving prohibited public benefits and receipt of more than 12 months shall be considered as a breach of the condition and cause the forfeiture of the bond.
A new USCIS Form I-356, Request for Cancellation of Public Charge Bond can be filed with corresponding filing fee only when the applicant has been:
- An LPR for at least five (5) years;
- Become a US citizen
- Permanently departed from the U.S.; and
- Obtained an immigrant status not subject to public charge inadmissibility or died
The bond obligor has the burden of demonstrating that one of foregoing events has occurred. If DHS approves the cancellation request it will release the obligor from liability and return the security.
The new public charge rule is indeed way stricter and entails a lot more documentations than its old counterpart. Applicants whose household members belong to the senior community, low income, unhealthy and disabled would encounter challenges under the public charge rule. Gone were the days when a simple submission of a Joint Sponsor can easily address the issue as the same is now in fact, perceived as negative factor. USCIS and Consular Office have a wider latitude of discretion as to which negative or positive factors supported by submitted documents will affect applicant’s chances of securing the now more elusive visa.
No doubt, the public charge rule has also become more complicated and technical and the examination of the supporting documents requires the expertise of an experienced and competent immigration lawyer. The data and information collected from these documents are very sensitive and often confidential and engaging the services of a duly-licensed lawyer (unlike a notario or non-lawyer) ensures the smoothest handling of immigration cases and these sensitive information are likewise kept with strictest confidentiality.
