UPDATED: A Temporary Stop To the ‘Public Charge’ Ruling Goes Into Affect Immediately

Posted on October 11, 2019
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Update: Just as the ruling on ‘Public Charge’ was to go into effect next week, federal district courts in California and New York put brakes on it by issuing an injunction against USCIS from enforcing it starting this afternoon, October 11, 2019. Specifically, USCIS will be prohibited from using the new or any updated forms associated with the new ruling. Consequently, petitioners will not be required to submit the I-944 (declaration of self-sufficiency) form with I-485 applications until further notice. This came on the heels of USCIS having released new, updated Forms I-129, I-539, I-864 and I-485 meant to be used to prove that the potential foreign immigrants will not become a public charge thus, making them ineligible for permanent residency in the US.
As per the ruling, a ‘Public Charge’ is defined as any immigrant who is likely to use any one public benefit for 12 continuous months during a 36-month period. Receipt of two public benefits in one month counts as two months and once labeled a ‘public charge’, immigrants could be denied green cards, visas and other forms of legal immigration status.

A few weeks ago President Trump signed a memorandum that requires sponsors of family members coming to the US accountable and responsible for all expenses related to their medical and financial needs when in the US. Moreover, to be eligible for entry to the US or to apply for a green card, an applicant has to prove that they have enough financial support to visit or live in the US without becoming reliant on US government welfare, that is, to become a public charge. Receiving one or more designated public benefits for more than 12 months within any 36-month period can be constituted as public charge.

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Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits.  Some non-citizens and their families are eligible for public benefits–including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs–without being found to be a public charge.

What qualifies as ‘public charge’ and what sources of assistance can make an individual inadmissible?

In determining inadmissibility, USCIS defines ‘public charge’ as an individual who is likely to become “primarily” dependent on the US government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government’s expense. When sponsoring a family member particularly aging parents, the following factors are taken into consideration –

  • age,
  • health,
  • family status,
  • assets,
  • resources,
  • financial status,
  • education, and
  • skills.

No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge. If the visit is temporary and of non-immigrant nature, the visitor can be a self-sponsored visit to the US.

Public Charge Programs

Programs that are likely to be viewed as those which would make a noncitizen inadmissible as a public charge include:

  • Cash assistance for income maintenance through Supplemental Security Income (SSI)
  • Cash assistance from the Temporary Assistance for Needy Families (TANF) program
  • State or local cash assistance programs for income maintenance

Each of the above are often called “general assistance” programs and acceptance of public cash from these programs could make a non-citizen inadmissible.  However, the mere receipt of these benefits do not automatically make an individual inadmissible or ineligible to adjust status to lawful permanent residence, or even deportable on public charge grounds.  USCIS will make a determination on a case-by-case basis and will review it in the context of the totality of circumstances. Having said that, Medicaid used to support aliens who reside in an institution for long-term care (nursing home, mental health institute, etc.) may be considered as an adverse factor in the totality of the circumstances for purposes of public charge determination.

Exceptions to Pubic Charge Consideration

The following non-cash benefits and special-purpose cash benefits (that are not intended for income maintenance) are not subject to public charge consideration:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
  • Children’s Health Insurance Program
  • Nutritional programs, including the Supplemental Nutrition Assistance Program (SNAP), which is commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), National School Lunch and School Breakfast Program, and any other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
  • Job training programs
  • In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention and short-term shelter)
  • Non-cash benefits under TANF such as subsidized child care or transit subsidies
  • Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
  • Unemployment compensation

It should be noted, that in most cases, lawful permanent residents who possess a green card cannot be denied US citizenship for lawfully receiving any public benefits for which they are eligible.

 

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Maintaining Permanent Residency in the US

 

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