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Changes to “Public Charge” Rule Coming

Update 9/20/2018

The Department of Homeland Security (DHS) announced proposed changes to the public charge rule—a rule intended to determine whether an immigrant is likely to become dependent on the government for subsistence. According to DHS estimates, the rule change will impact about 382,000 people annually.

What are the changes?

As expected, the proposed rule greatly expands the number of government benefits US Citizenship and Immigration Services (USCIS) will consider as heavily-weighted negative factors when considering if an immigrant might become a public charge. Currently, when making a negative public charge determination, USCIS limits consideration of government benefits to certain cash benefits and long-term, government-funded institutional care. Under the proposed new rule, the government also will consider receipt of many non-cash benefits for food, housing, and healthcare as negative factors when making a public charge determination. These include benefits from the Supplemental Nutrition Assistance Program (SNAP, often called food stamps); most non-emergency forms of Medicaid; Low-Income Subsidy for Medicare, Part D; and many types of housing assistance.

The new rules will not only apply to the current use of government benefits, but also to past usage.  When making a determination, the USCIS will consider if a petitioner has received specified non-monetized government benefits, if the cost of one or more of those benefits exceeded fifteen percent of the Federal Poverty Guidelines for twelve months during the past thirty-six months.

These new rules would apply to immigrants seeking admission to the United States and also to people seeking an Extension of Stay, Change of Status and Adjustment of Status. For example, one seeking adjustment of status must file a Declaration of Self-Sufficiency.

What is the next step?

After USCIS publishes the the proposed in the Federal Register, , the public will have sixty days during which they can comment on the rule change.

What is the “public charge” rule?

Under federal law, USCIS must determine whether an immigrant is “likely to become primarily dependent on the government for subsistence.” Since 1999, the government has limited negative public charge determinations to person receiving certain cash benefits (Supplemental Security Income, Temporary Assistance for Needy Families and state and local general assistance funds) and long-term, government-funded institutional care.

What are the proposed changes?

USCIS is proposing to expand the types of public benefits which the government may consider in its determination whether someone is likely to become a public charge.  Many non-cash public benefits will now be considered, including: nutrition assistance (Supplemental Nutrition Assistance Program—commonly called food stamps—and the Special Supplemental Nutrition Program for Women, Infants, and Children, known as WIC); government-subsidized healthcare (Medicaid, Child Health Insurance and subsidized medical care provided by the Affordable Care Act); certain Earned Income Tax Credits that exceed income, and; housing and energy assistance.  Other negatives factors might include unemployment insurance for applicants of work age with work authorization, or a serious medical condition combined with a lack of non-subsidized health insurance or other means to cover medical costs.  The proposed rule would also allow USCIS to consider a past fee waiver request in its public charge determination.

Further, USCIS will consider benefits received by the person immigrating, a petitioner sponsoring the person, or any dependent family members, even if they are U.S. citizens.  A negative “public charge” determination could apply if these people are currently receiving the benefits, if they have received them for more than six months in the past three years or if they are deemed likely to receive them in the future.

The draft rule excludes some benefits from being used in a “public charge” determination, including benefits from Social Security, state disability programs, most Medicare payments, veterans’ benefits, workers compensation, government pensions, health insurance for government employees, federal student loans and in-state tuition grants.

Who might be affected by the new proposal?

The proposed rule will apply to all persons coming to the U.S. as permanent residents or on temporary visas. It also will apply to those already in the U.S. who seek to extend or change their nonimmigrant status or to change status to permanent resident.  Refugees, Asylees, special immigrant juveniles and a few other groups are exempt from the “public charge” rule.

Under the current policy, only 3% of non-citizens use benefits that can negatively affect a “public charge” determination. If the proposed regulation goes into effect, the Migration Policy Institute estimates this number will increase to approximately 47%.  Certainly, low income persons will find it more challenging to immigrate to the U.S. due to this rule change.  Critics of the changes argue that parents might reject benefits their children are legally entitled to receive, for fear of jeopardizing another family member’s immigration case.

The Office of Management and Budget is reviewing the current proposal.  Its exact wording is still unknown. We will provide more information on the proposed rule change when it is published.

If you would like advice about the proposed changes to the “public charge” rule or any other immigration matter, contact one of the attorneys at Deutsch, Killea and Eapen, Immigration Law Firm.

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