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The Final Public Charge Rule and How It Will Affect You

On February 5, 2020, the U.S. Citizenship and Immigration Services published its Final Rule on Inadmissibility based on Public Charge Grounds (final public charge rule). This final rule was released after the Supreme Court of the United States, on January 27, 2020, ordered the stay of the last nationwide injunction. This decision has the effect of allowing the Department of Homeland Security to implement this Public Charge Rule in all States except the State of Illinois where the U.S. Court of Appeals for the Seventh Circuit still enjoins implementation of this public charge rule.

Q. What is the public charge rule?

A. Applications for Immigrant and non-immigrant visas may be denied based on findings that the visa applicant is more likely than not to be a public charge. The basis of the rule is found in section 212(a)(4) of the Immigration and Nationality Act (INA) and is referred to as the public charge ground of inadmissibility. This rule reflects Congress’ longstanding national immigration policy that aliens seeking to come to or remain in the United States are self-sufficient and will not rely on public benefits.

Q. What is the effectivity date of this final public charge rule?

A. This public charge rule is effective on February 24, 2020, and will apply to all applicants filing for adjustment of status, extension of stay, and change of status on or before that date ( except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy).

Q: What type of applicants will be affected by this final public charge rule?

A: Those who will be directly affected are applicants for immigrant and non-immigrant visas or those seeking to apply for green cards or immigrant visas through adjustment of status or through consular processing . Those seeking to apply for change or extension of non-immigrant status on or after February 24, 2020 are also subject to public charge rules. Also important to note, are green card holders who are seeking admission or have been out of the country for at least 180 days and re-entering the U.S. They will be examined also if they are considered public charge.

Q: Who are exempted from this final public charge rule?

A: The final rule excludes : public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for aliens under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.; applicants seeking asylum, certain U and T visa applicants and self petitioner’s based on Violence Against Women’s Act (VAWA).

Q: What is the difference between this final public charge rule and what have been followed by the USCIS for so many decades?

A: Prior to this new public charge rule , an applicant for green card may submit an Affidavit of Support accomplished by the Petitioner or a co-sponsor to indicate that the applicant will not be a public charge. This was sufficient under the prior rules. Now with the new public charge rule, an affidavit of support is just one of the factors taken into account. Instead, a totality of circumstances will be examined and the USCIS may now look into other factors such as employability, age, health and prior receipt of public benefits by the applicant as indicative that the applicants is more likely to become a public charge and be denied the green card application. Another difference, is the expansion of the meaning of public charge. This rule redefines the term ‘‘public charge’’ to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

Q. What public benefits are considered under this public charge rule?

A. As part of the public charge inadmissibility determination, USCIS considers both cash and non-cash benefits including:

  • Any federal, state, local, or tribal cash assistance for income maintenance such as:
    • Supplemental Security Income (SSI);
    • Temporary Assistance for Needy Families (TANF) which may be provided under another state name;
    • Federal, state, or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names);
  • Supplemental Nutrition Assistance Program (SNAP);
  • Medicaid (with some exceptions); federally funded Medicaid may also be provided under a state name;
  • Section 8 Housing Assistance under the Housing Choice Voucher Program;
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
  • Housing under the Housing Act of 1937

Q. Will receipt of public benefit under Medi-CAL be considered under this public charge rule?

A. Only federally funded Medicaid will be considered in determining public charge. Medi-Cal is how the State of California delivers Medicaid to its residents. Some Medi-Cal services are provided to aliens under a state-only authority at no expense to the federal government.

If Medi-Cal is provided to the alien under a state-only authority at no expense to the federal government, it is not considered in the public charge inadmissibility determination.

Q: What if the applicant has been working in the United States with the proper and valid working visa, and later on had been approved for a green card, had a work authorization and had been paying all required taxes taken from his or her paycheck. And then an emergency happened — whether it be losing a job, or a medical emergency, which made the applicant access publicly funded benefits just at the time he could already apply for adjustment of status. Would this cause him to be inadmissible and his application be denied?

A. Medicaid benefits for medical emergency services are exempt from the definition of public benefits. But if this applicant continues to avail of the publicly funded medical services as defined in the regulation, s/he would likely be considered a public charge and this fact is a ground to deny the application for adjustment of status.

USCIS does not consider the following Medicaid benefits for purposes of the public charge inadmissibility determination:

  • Benefits paid for an emergency medical condition;
  • Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
  • School-based benefits provided to children who are at or below the oldest age of children eligible for secondary education as determined under State law;
  • Benefits received by an applicant under the age of 21; and
  • Benefits received by a pregnant applicant, including the period during the pregnancy and 60 days after the end of the pregnancy.

Q: Several factors are enumerated to determine inadmissibility based on public charge, how does a USCIS officer or consular officer determine if an applicant for a visa is more likely to become a public charge?

A: The public charge inadmissibility determination (the determination whether an alien is likely at any time to become a public charge) is a discretionary and prospective determination based on the totality of an applicant’s circumstances.

The burden of proof to establish admissibility during the process of seeking an immigration benefit is always on the applicant.

USCIS reviews all information provided in the Application to Register Permanent Residence or Adjust Status (Form I-485), including the Declaration of Self-Sufficiency (Form I-944), and the Report of Medical Examination and Vaccination Record (Form I-693) or the medical examination report in the U.S. Department of State (DOS) Form DS-2054 or Form DS-7794, as well as any other information provided in the record to determine whether the applicant is inadmissible on the public charge ground.

Q. What are the positive and negative factors that may weigh heavily on a visa applicant?

A. While admittedly the consular officers or USCIS examiners have wide discretion in determining public charge, there are also parameters on what positive and negative factors weigh heavily in examining the applicants :

Heavily weighted NEGATIVE factors:

  • No current employment, recent employment history, or a reasonable prospect of future employment;
  • Public benefit receipt at the threshold i.e. if the evidence indicates that the alien has received, or has been certified or approved to receive, one or more public benefit(s), for more than 12 months in the aggregate within the 36-month period immediately before the application is filed, starting on or after February 24, 2020
  • Medical condition and is uninsured and either lacks prospect of obtaining private health insurance or lacks the financial resources to pay for foreseeable medical costs related to such medical condition;or
  • The alien was previously found inadmissible or deportable based on public charge ground by an Immigration Judge or the Board of Immigration Appeals.

Heavily weighted POSITIVE factors:

  • Household has income, assets, resources, or support of at least 250 percent of the FPG for the alien’s household size;
  • Authorized to work and is currently employed with an annual income of at least 250 percent of the FPG for the alien’s household size; or
  • Has private health insurance

Q. If a visa applicant is found to be inadmissible based on public charge, is there a waiver or relief available to overcome this finding?

A. Generally, waivers of public charge inadmissibility are not available for immigrant visa applicants. The exception to this rule applies to (1) formerly S visa nonimmigrants on account of their witness or informant status and (2 )certain aged, blind, or disabled applicants for adjustment of status under INA 245A.

For non-immigrant applicants, S visa holders seeking admission are subject to a waiver of the public charge rule. All other nonimmigrants may seek waiver under INA Section 212(d)(3).

Q. If the visa applicant is not allowed a waiver or granted a waiver, are there other ways to overcome the public charge finding?

A. If an alien is determined to be inadmissible based on the public charge ground, but is otherwise admissible, he or she may be admitted in the discretion of the Secretary of Homeland Security, if otherwise admissible, upon the giving of a suitable and proper bond. USCIS will only exercise this authority in the context of adjustment of status applications in cases where adjustment would otherwise be granted but for the public charge inadmissibility.

A public charge bond is a type of immigration bond. A bond, including a public charge bond, is a contract between the United States (the obligee) and a natural person or a company (the obligor) who pledges a sum of money to guarantee a set of conditions imposed by the U.S. government concerning the alien (also called the principal). In the case of the public charge bond, the obligor pledges a sum of money to guarantee that the applicant will not become a public charge, as defined in the regulations.

Bonds may either be (1) Cash Bond or (2) Surety Bond. The minimum amount of public charge bond is $8,100.

Q: What repercussions would this expanded public charge rule have on immigrants including the Filipino American community?

A: The final public charge rule is obviously applied unfavorably to certain sectors of the population mostly the low income, seniors and disabled legal immigrants. As a result of these new rules, it is most likely that certain legal immigrants will be fearful of accessing public benefits. They will be compelled to make a choice of avoiding much needed medical help at the expense of their health just to keep their families together and prevent repercussions on their family members visa applications. In short, this policy places at risk the health and safety of families throughout the nation and that includes our Filipino immigrant community.

(Atty. Lourdes S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law Offices and may be reached at law@tancinco.com, www.tancinco.com, facebook.com/tancincolaw, or at 1-888-930-0808).

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