On September 23, 2018, USCIS issued advanced copy of a proposed rule re-defining the term “public charge” and defining the types of public benefits that will be considered in public charge inadmissibility determinations. The proposed rule drastically expands the definition of what it means to be a public charge which could prevent an immigrant from maintaining or obtaining legal immigration status. Once the proposed Rule is published in the Federal register, it will be open for a 60-day comment period.

As per USCIS, the primary goal of this proposed rule is to ensure that individuals who apply for admission to the U.S. or for adjustment of status are self-sufficient. Hence the immigrants who are dependent on government assistance are likely to be deemed as “public charge” and will probably be denied immigration status.
Previously, the government banned immigrants on public charge grounds if they depend on public cash assistance (direct) or need long term medical care at the government’s expense. Under the proposed new rule, the definition is expanded to include certain previously excluded public benefit programs, including: Medicaid, the Supplemental Nutrition Assistance Program, Medicare Part D Low-Income Subsidy Program, and several housing programs, in public charge determinations.

The proposed rule would apply to individuals seeking admission to the United States from abroad on immigrant or nonimmigrants visas; to adjust their status to that of lawful permanent residents from within the United States; and individuals within the United States who hold a temporary visa and seek to either extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification. However certain categories like refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles are exempted from this rule.

According to the Department of Homeland Security (DHS) the proposed rule would establish a proper nexus between public charge and receipt of public benefits. DHS proposes to interpret the minimum statutory factors involved in public charge determinations and to establish a clear framework under which DHS would evaluate those factors to determine whether or not an alien is likely at any time in the future to become a public charge. As per the proposed rule a “public charge” is someone who “receives one or more public benefits” to cover basic needs such as health, nutrition, or housing as defined in 8 CFR 212.21(b).

DHS will only look at benefits an immigrant is getting for one self, not at all the benefits being received by members of any household. The proposal breaks down benefits into two different categories:

1.Benefits that “can be monetized” – such as Section 8 housing benefits

2.Benefits that “cannot be monetized” – such as Medicaid

It is expected that three tests will be used to evaluate whether to disqualify an immigrant from a visa or green card:

1.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

2.Individual use of “non-monetized” benefits for more than 12 months in any previous 36-month period, or

3.Any individual use of “monetized” benefits plus individual use of “non-monetized” benefits for more than nine months in any previous 36-month period Any individual not clearing the above tests would be labelled a Public Charge and their applicant for permanent residency may be denied.

In the proposed rule, DHS demands assurance from immigrants and future green card aspirants that they would support themselves financially and they will not rely on public benefits. Green card applicants who have used the benefits previously wouldn’t be disqualified automatically. Most likely immigrants would begin retreating themselves from any sort of social benefits out of fear of immigration consequences in future. We can as such anticipate the following likely impacts:

1.DHS estimates that 382,600 green card applications a year would be subject to the new public charge test; an additional 517,500 applications for other types of visas could be subject to a version of the test at the discretion of USCIS officials;

2.It is anticipated that this regulation will have a chilling effect and immigrants will begin withdrawing from public assistance programs voluntarily out of a fear of deportation even at the risk of losing much needed assistance for food, shelter and medicine;

3.Families who are receiving any of an assortment of noncash public benefits, such as aid from the Supplemental Nutrition Assistance Program, formerly known as ‘food stamps’ are likely to surrender their benefits; and

4.The Section 8 program, which provides housing assistance; or the Medicare prescription drug program for older adults may see decline in participation by immigrants.

GLF will continue to follow further developments in this matter and we will provide updates through our Newsletter as and when they become available.

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