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Public Charge & Inadmissibility

| Mar 9, 2020 | Firm News

Recent changes to the green card process

U.S. Citizenship and Immigration Services (USCIS) has implemented the Inadmissibility on Public Charge Grounds final rule on Feb. 24, 2020. Under the Rule, USCIS will look at multiple factors to determine if someone is likely to become a public charge. This new rule affects some green card applicants.

The “public charge” inadmissibility test was originally established by the U.S. Congress in 1883. This original test created the means for the U.S. government to deny a person a green card, an extension of a visa, or admission. On August 14, 2019, the United States Citizenship and Immigration Services (USCIS), a division of DHS, published new rules expanding the current definition of public charge, potentially impacting thousands of immigrants who wish to obtain lawful permanent residency in the U.S. (a green card), or to extend their visa.

When deciding whether to grant an applicant a green card, an immigration officer must determine whether the individual is likely to become a public charge. That is, the officer must assess where the individual will become primarily dependent on the government for support. DHS makes this determination based on the individual’s “totality of circumstances.” DHS considers individual’s age, health, family status, financial status, education and skills, as well as family members who may support them. Thus, no one factor is used to determine whether someone can be deemed likely to become a public charge.

Public Charge Determination

The new rules expand the list of benefits considered when determining if someone is likely to become a public charge. Additionally, the rules define someone who is likely to become a public charge as a person who receives any of a setlist of public benefits for more than 12 months within any 36-month period. Each benefit used counts toward the 12-month calculation.

For example, if an individual uses two benefits at the same time for a one-month period, it will count as two months’ use of benefits. And the new rules identify characteristics seen as positive factors that would reduce the likelihood of becoming a public charge and negative factors that would increase the likelihood of becoming a public charge when reviewing the individual’s totality of circumstances. For example, officials consider a household with an income of at least 250% FPL as a heavily weighted positive factor. Conversely, receipt of public benefits within the previous 36 months is a heavily weighted negative factor. Effectively this would make it harder for lower-income individuals and families to pass the public charge determination.

Public Benefits Included in the New Public Charge Rule

Public benefits used in determining public charge included SSI, TANF and state general assistance programs, as well as long-term institutionalization paid for by the government.  Additional benefits under the new rule include non-emergency federally funded Medicaid, the Supplemental Nutrition Program (SNAP), Section 8 housing assistance, public housing, and state and local cash assistance.

Public Benefits Excluded from the New Public Charge Rule

Benefits excluded from the public charge determination include:

  • Child Health Plus
  • Medicare Part D Extra Help
  • Qualified Health Plans on the Marketplace*
  • Disaster relief
  • WIC
  • National school lunch programs
  • Foster care and adoption
  • Student and mortgage loans
  • Energy assistance (HEAP)
  • Food pantries or soup kitchens
  • Homeless shelters, and
  • Head Start

Green Card Applicants Impacted by DHS’s New Rule

The consideration of public charge under the new rule only applies to those immigrants who are not exempted and who are in the U.S. applying for a green card.

In addition, DHS will only consider public benefits received directly by the applicant for the applicant themselves; receipt by other family members does not count against the applicant unless those family members are also applying for a green card.

Green Card Applicants Exempted from the New Rule

The following individuals are exempt from having the public charge determination:

  • Refugees
  • Asylees
  • Afghan and Iraqi nationals with special immigrant visas
  • T visa holders
  • U visas for certain crime victims
  • Individuals applying for or granted status under the Violence Against Women Act (VAWA)
  • Special immigrant juveniles
  • Certain people paroled into the U.S.
  • Those to whom DHS has granted a waiver of public charge inadmissibility
  • Individuals who are enlisted in the U.S. armed forces or who are serving in active duty or in any of the Ready Reserve components of the U.S. armed forces. In addition, DHS will not consider the receipt of public benefits by the spouse and children of such service members.
  • Current green card holders who are seeking U.S. citizenship.
    • That is, if a green card holder is in receipt of any public benefit and is seeking to become a citizen, receipt of such benefit will not prevent such individual from naturalizing, unless those benefits were received fraudulently.
    • However, green card holders who leave the country for more than six months and who seek to return to the U.S. may be subject to the public charge rule. Consequently, green card holders should speak with an immigration attorney before leaving the country for an extended period.

Ask an Attorney or Expert for Help!

It is important that amid the continuing confusion, conflicting and misleading information that immigration clients get the facts straight before taking any action regarding their use of public benefits, such as disenrolling from a public benefit program or not enrolling for a benefit when entitled, or when leaving the country.  Potential clients should speak to an immigration expert to consult on their case before taking any action and filing for a visa or adjustment of status.