What is the New Public Charge Rule?

What is the New Public Charge Rule?

What is the Public Charge Ground of Inadmissibility?

Grounds of Inadmissibility are a concept found in immigration law. If an applicant for an immigrant or non-immigrant visa has one of the enumerated grounds of inadmissibility, that may render them ineligible for a green card or a visa. Common grounds of inadmissibility are certain convictions, prior deportation orders, helping relatives enter the country without permission, and entering the country without authorization. Historically speaking, the public charge ground of inadmissibility has not commonly been used to deny an applicant’s green card application; however, that may change.

On August 14, 2019, the U.S. Department of Homeland Security published a final rule changing the way that USCIS officials will evaluate who is a public charge. The rule is set to take effect on October 15, 2019, and would only affect applications postmarked on or after October 15, 2019.

Applicants will be evaluated to see if they are “likely at any time to become a public charge.” An applicant may be found to be a public charge if they are more likely than not to participate in one of the prohibited programs for more than 12 months in any 36-month period.

Who Does the Public Charge Rule Affect?

The new Public Charge Rule is a Department of Homeland Security rule, and as such, it applies to adjustment of status and change of status cases. It does not apply to consular cases (Department of State) or the Immigration Court (Department of Justice).

What are the Prohibited Programs?

Enrollment in the following programs is prohibited:

  • SSI
  • TANF
  • SNAP/Food Stamps
  • Medicaid (see exceptions)
  • Section 8 Housing
  • Section 9 Public Housing

The exceptions to Medicaid are:

  • Emergency Medicaid
  • Individuals with Disabilities Education Act
  • School-Based Services
  • Under 21; and
  • Pregnant Women

The common thread amongst all of these programs is that they are federally funded.

What are the Other Criteria?

In evaluating whether someone is ‘more likely than not’ to enroll in any of the above-named programs, USCIS will employ a 7-factor ‘totality of the circumstances’ test. They will look at an applicants (1) age, (2) health, (3) family size, (4) assets, resources, and financial status, (5) education & skills, (6) anticipated period of admission, and (7) the affidavit of support.

In addition to reviewing the 7-factors, USCIS will also consider ‘heavily-weighted’ positive and negative factors, which include:

Heavily Weighted Negative Factors

  • The Applicant has received one of the listed public benefits for more than 12 months (aggregate) in any 36-month period.
  • The Applicant is not a full-time student, is authorized to work, but cannot show current, recent, or future employment prospects.
  • Has a costly medical condition, is uninsured, and has insufficient financial resources to cover costs.

Heavily Weighted Positive Factors

  • The Applicant’s household has income or assets of at least 250% of the federal poverty line.
  • The applicant is authorized to work and has an income of at least 250% of the federal poverty line.
  • The applicant has private health insurance (unsubsidized).

USCIS Will Not Consider:

  • Benefits applied for or received by family members.
  • Benefits received by military families.
  • Benefits received by children of US citizens who will automatically become citizens after adjustment.

**On October 11, 2019, a federal judge in the Southern District of New York issued a nationwide injunction, halting the implementation of the new public charge rule.

If you are applying for an immigrant or non-immigrant visa and fear that USCIS may find you inadmissible on public charge grounds, please contact an immigration attorney who is trustworthy and knowledgeable! Our attorneys at Landerholm Immigration, APC, are experienced in immigrant and non-immigrant visa cases. Please feel free to call us at 510-488-1020 to see how we can help!

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