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Who’s a ‘public charge’? Here’s how USCIS will decide

Who’s a ‘public charge’? Here’s how USCIS will decide
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Come December 23, 2022 the US Citizenship and Immigration Services (USCIS) will follow new rules to determine whether a person seeking residence is a “public charge.”

Being deemed a public charge – someone who causes more burden than benefit to the United States – can determine admission into the US and the chance to become a lawful permanent resident.

This is very important especially for noncitizens, since many have reportedly withdrew themselves from availing of public benefits because of the fear of being seen as a public charge.

Let’s talk about what the USCIS’s new standards starting December 23, 2022.

Under the final rule, USCIS will determine if you are likely to become a public charge based on the following:

  1. Your age, health, family status, financial status (including assets and resources), education, and skills;
  2. Whether a sponsor has submitted Form I-864, Affidavit of Support Under Section 213A of the INA, for you (when required)
  3. Whether you have received or are receiving:
  • Supplemental Security Income (SSI);
  • Cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF);
  • State, tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or
  • Long-term institutionalization at government expense.

DHS will not consider in public charge determinations – benefits received by family members other than the applicant.

  • receipt of certain non-cash benefits for which noncitizens may be eligible. 

These benefits include: Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children’s Health Insurance Program (CHIP), Medicaid (other than for long-term institutionalization), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

To ensure that USCIS agents will enforce these standards fairly and humanely, the Department of Homeland Security will publish a policy manual update to guide officers.

The DHS will also reach out to communities to clarify what the new rules mean for them, their families, and the people they care about who might be scared of being labeled as a public charge.

To learn better about how to avoid being seen as a public charge, reach out toa trusted immigration lawyer.

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2020 U.S. Immigration Outlook for Filipino Immigrants

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2020 is a Presidential election year. Whether the United States will have a new or a re-elected President, immigrants and their families will be facing major changes in immigration policies. Let’s examine and determine the prospects of 8 major immigration policy changes that may affect our Filipino immigrants.

The Filipino World War II Veterans Parole Program (FWVP)

The FWVP program was created in June 2016 in recognition of the extraordinary contributions and sacrifices of Filipino veterans during WWII. This program allowed their family members to join the veterans or their widows in the U.S. while their visa petition is waiting for visa availability. After 3 years, several hundreds of family members were allowed in on parole under the FWVP program. As part of the administration policy to eliminate parole programs, the USCIS announced in August 2019 that it will terminate the FWVP. Advocacy groups like the Asian American Advancing Justice, FilVetRep, and the Bayanihan Equity Center, among others, have been working hard to preserve the program. This 2020, unless the administration changes its mind about terminating the program, FWVP program will end after USCIS issuance of its final rules.

Increased USCIS Fees

In November 2019, USCIS announced that it will increase fees on petitions and applications. Among the many applications that are going to be affected are (1) Adjustment of Status application, an increase from $1,225 to $2,195; (2) DACA fees will increase from $495 to $765, an overall increase of 55 percent; (3) Naturalization application will increase by 83 percent, raising the fee from $640 to $1,170. Aside from the increase in fees, USCIS is eliminating fee waivers for naturalization, adjustment of status, green card replacements and renewal and employment authorization. The increase will take effect this 2020 and only after USCIS releases its final regulations.

Backlog in Family Petitions

As of November 2019, there are 291,392 approved visa petitions on behalf of Filipino nationals filed by their US citizens or green card holder relatives, awaiting visa availability with the National Visa Center. The backlog is still severe and there is still lengthy wait for visa availability in certain preference petitions. For Filipinos with petitions under the F3 and F4 visa category, the waiting period is more or less 21 years and for those whose petitions are F1 or F2B the waiting period is approximately 11 years. There are bills (RELIEF Act, S.2603 and H.R. 5327) pending before the 116th Congress which if passed will increase visa numbers and eliminate backlogs. Until these bills are passed into law, expect decades of waiting for certain petitions on behalf of Filipino nationals.

H1B Visa

On January 9, 2020, USCIS released its regulations on the registration system for H1B visa petitions. Instead of filing a full petition for a foreign national employee, the U.S. employer must complete a registration process that requires basic information about the H1B employer and the employee being petitioned. USCIS will open registration period from March 1 through March 20, 2020. Only those selected by USCIS lottery system will be able to file H1B petitions to meet the 65,000 cap.

Public Charge

Under the law, a visa applicant will not be allowed to enter the United States if the government believes that they are likely to become public charge or reliant on government assistance. In 2019, the USCIS issued a new definition of public charge rule to include those who receive either cash or non-cash benefits like housing or health care, from the government for more than 12 months during the 3 year period. The implementation of this public charge rule is suspended because of court litigation filed by several States and advocacy groups challenging the legality of the rule. The Supreme Court is expected to rule on this case this 2020. If the public charge rule takes effect, the legal impact will be on low income legal immigrants petitioning their relatives.

Deferred Action on Childhood Arrivals (DACA)

Deferred Action on Childhood Arrivals or DACA program was created in 2012 to grant young immigrants deferred status and employment authorization. In 2017, Trump announced that it was ending DACA. This resulted in several lawsuits filed against the administration challenging the decision to terminate DACA. The case was heard by the Supreme Court in November 2019 and a decision is expected anytime before June 2020. In the meantime, DACA recipients are allowed to renew their DACA status and employment authorization.

REAL ID

Beginning October 1,2020, federal agencies including Department of Homeland Security (DHS) and Transportation Security Administration (TSA) will only accept state issued driver’s licenses that are REAL ID compliant. This means that the state licensing agency must issue REAL IDs to those with valid identification and legal status. Those who are still in unauthorized status may not be issued READ ID compliant driver’s licenses and identification that will allow them to access federal offices or travel domestically through commercial airlines.

H2B Visa

In January 2019, nationals from the Philippines were banned from receiving H2B temporary working visas for one year. As of this writing, there is no update yet from the USCIS if in 2020, the Philippines will be allowed to become beneficiaries of new H2B visas.

These 8 immigration policies are just among the many policies that are anticipated to affect our Filipino immigrant community. The enforcement of immigration law has consistently been the highest priority of the Trump administration resulting in hundreds of thousands of ICE arrest since he took oath as U.S. president. After a decade, we still have not seen a major overhaul and change in immigration law. Hopefully, this 2020 decade, our leaders will finally pass a more humane and sensible immigration reform law; a more compassionate, relevant and rational one that will replace the dysfunctional immigration system we have right now.

(Atty. Lourdes Santos Tancinco, is an immigrant advocate, founder and a principal partner at the Tancinco Law Offices, San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Who Will Be Affected by Trump’s Proposed Public Charge Rules?

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On September 22, 2018, the U.S. Department of Homeland Security published on its website a 447 page proposal called the “Inadmissibility on Public Charge Grounds”. This proposal would have the effect of denying green cards to immigrants who have legally availed public benefits. Obviously, this is part of Trump administration’s overall trend of cracking down on both legal and illegal immigration.

Most non-immigrants and unauthorized immigrants in the United States are not eligible for most public benefits. But for those who find themselves availing of food stamps, housing vouchers and Medicaid, they may face risk to their future immigrant status if the proposal is fully implemented.

What is this new proposal about?

This new proposal refers to a “public charge” finding as a ground for inadmissibility or basis for denial of visas. An individual is considered a public charge if s/he is dependent primarily on government assistance for her/his subsistence.

Currently the public charge rule is that a person who is dependent primarily on welfare or government assistance will be denied a visa if s/he availed of monetary public benefits such as (1) Supplemental Security Income or SSI for the aged, blind and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance, and (3) State and local cash assistance programs known as General Assistance (GA).

Under the recent proposal, the definition of public benefits in determining whether one is a public charge has been expanded. The additional public benefits are Medicaid (with limited exceptions for medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare part D low income subsidy, the Supplemental Nutrition Assistance Program (SNAP, or Food Stamps), institutionalization for long-term care at government expense, Section 8 housing choice voucher program, Section 8 project-based rental assistance, and public housing.

In addition, the proposal added the totality of circumstances test in determining whether one is a public charge. This means that USCIS examiner or consular officers may now examine varying factors that may lead them to the conclusion that the applicant for visa is likely to become a public charge. These factors include applicant’s age, health, family status, assets, resources, and financial status, and education and skills.

Who are affected by this proposal?

Those affected are those (1) non-immigrants present in the United States who are applicants for adjustment of status; (2) those applying for visas at consular offices abroad and (3) those entering the United States who are found to be receiving public benefits within 5 years of of being a lawful residents or in green card status.

Will green card holders applying for U.S. citizenship be affected?

Generally, a finding of public charge is not a ground for denial of U.S. citizenship and so a green card holder who is an applicant for naturalization is not affected by the proposal. The issue of public charge will only matter and result in denial of U.S. citizenship if during the examination on the naturalization application, it is determined that the green card holder had engaged in fraud and misrepresentation in obtaining public benefits.

Should prospective immigrants withdraw from receiving public assistance?

Several community immigrant advocates had opposed the new proposals as being discriminatory against low income immigrants who may happen to receive some benefits because of sudden illness or they have unexpectedly lost their jobs due to economic downturns or changes in their company. In most cases receipt of benefits is only temporary and simply served as a basic economic safety nets to provide economic stability until the individuals becomes self sufficient again. To take this safety net against them in their future application for green cards is cruel and unjust.

A person who is prospectively affected by this proposal may be compelled to choose between risking his future immigration status and meeting his basic need. But it is premature to make a decision on whether those who are receiving public assistance should start withdrawing from these government programs. Although in anticipation of the implementation of the proposals, several public benefit recipients already stopped receiving public benefits at the expense of their health and safety. This proposal becomes a final rule 60 days after it is published with the Federal Register. It must be clear that the proposal is not yet a final rule. It was just recently published on the DHS website. Once it is published with the Federal Register the public will be afforded 60 days to comment and oppose these restrictive proposals. There is still an opportunity to completely negate the impact of this proposal.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw, or through this website tancinco.weareph.com/old)

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Refusal of Visas Based on “Public Charge” Ground

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For many years, an Affidavit of Support is an essential document before a visa may be issued to an applicant seeking to enter the United States. What happens if the the affidavit of support is found to be insufficient? Why are many visa applicants now being denied despite submission of Affidavits of Support? What are the new changes in policy regarding public charge?

Public Charge Finding

A non citizen may become a public charge for inadmissibility or deportability if s/he has become primarily dependent on the government for subsistence or is proven to have (1) received public cash assistance for income maintenance or (2) institutionalization for long term care at government expense. Only 3 types of public cash assistance benefits are referred to become a public charge: (1) Supplemental Security Income or SSI for the aged, blind and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance, and (3) state and local cash assistance programs known as general assistance.

Affidavits of Support Plus Other Factors

Before new policies took place, an Affidavit of Support should be sufficient to overcome a public charge ground for denial of the visa. This is a document executed by the Petitioner who will attest that she has sufficient assets and income to support the visa applicant. If the petitioner is unable to show financial capacity to support, a co-sponsor may submit an affidavit of support. The petitioner or the sponsor shall demonstrate that she has the means to maintain an annual income equal to at least 125 percent of the Federal poverty line. In addition, she has to agree to provide support to maintain the sponsored visa applicant at an annual income that is not less than 125 percent of the Federal poverty income line.

Early this year, the U.S. Department of State changed the policy on Affidavits of Support. It added now a provision on 9 FAM 302.8-2(B)(2) that states that an Affidavit of Support is one of the positive factors taken into account in the totality of the circumstances test and is not in itself sufficient to protect an individual from a public charge determination. The other factors that are to be taken into account are the applicant’s age health, family status, assets, resources, financial status, education and skills.

In addition to the totality of circumstances test that is currently being used, it is anticipated that in the next few months, the new public charge policy of the Department of Homeland Security will be published and implemented. The worst part of the new rule that is USCIS will count benefits received by the petitioner U.S. citizen and take it against the visa applicant to show a finding of public charge.

In applying the amendments to the public charge policy, using the totality of circumstances test, there are cases now where a visa applicant is denied for public charge ground upon finding that the co-sponsor who executed the affidavit of support has no familial relationship to the visa applicant. This means that if the co-sponsor is a friend and not the relative of the visa applicant, even if there is proof of sufficient means to support the applicant, visa applications are being denied.

While this new policy is being implemented, there is no basis under the law to require a co-sponsor to be a relative. INA § 213A(f) or 8 CFR§213a.2 does not include a relationship requirement for a joint sponsor. In addition, the visa applicant should not be denied outright of their visas if initially there is a public charge finding. There should be an opportunity to augment the record by submitting additional evidence to show that the applicant will not be reliant on government welfare upon arrival in the United States. A visa applicant improperly denied based on public charge finding should not simply accept the decision without seeking a reconsideration and having the opportunity to submit additional documents to contest the denial.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw, or through this website.)