The Trump administration started two- and one-half years ago with a plan to reduce legal immigration to the United States. Their proposed legislation has gone nowhere (and never will, as it is harmful to the United States). Knowing this, senior leadership in the Trump Administration has pushed for significant rule changes to make legal immigration more difficult. The impact of these new policies and regulations can felt throughout the entire legal immigration system. The most recent, and perhaps most far-reaching of these changes are found in the new “Public Charge” regulations, to be published on August 14, 2019, with a proposed effective date of October 15, 2019.
We anticipate a legal challenge to these regulations, and we also expect a federal court to enjoin their effective date. Nonetheless, it is important that we understand the rule and its wide impact on all types of legal immigration.
The general rule is that, basically, you should not use Public Benefits if you want to immigrant to the United States. That said, what is a “Public Benefit?
What is a “Public Charge” and what is a “Public Benefit”?
The final rule makes significant changes to the definitions of “Public Charge” and “Public Benefit.” DHS has revised the definition of “public charge” and “public benefit” to clarify the threshold of public benefit receipt that renders a foreign national a public charge. This is where it gets complicated and significantly bureaucratic. DHS has revised the definitions for public charge and public benefits to now evaluate all benefits with a single duration-based standard (i.e., the proposed standard for nonmonetizable benefits). DHS incorporated the single duration standard into the definition of “public charge,” rather than the definition of “public benefit.”
Under this “simplified” duration standard, a public charge is a foreign national who receives one or more public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two public benefits in one month counts as two months). In layman’s terms, if you use public benefits of any kind (as described below) for more than 12 months in the three-year period prior to filing for the immigration benefit you seek, you will be barred admission to the US (or possibly deportable from the US) as a public charge, GOING FORWARD. This rule change is NOT retroactive to any benefits received before the effective date.
What Public Benefits Will be Considered in the Public Charge Determination? Public benefit means:
(1) Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
(i) Supplemental Security Income (SSI),
(ii) Temporary Assistance for Needy Families (TANF), or
(iii) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); and
(2) Supplemental Nutrition Assistance Program (SNAP),
(3) Section 8 Housing Assistance under the Housing Choice Voucher Program,
(4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
(5) Medicaid, except for:
(i) Benefits received for an emergency medical condition;
(ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
(iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
(iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
(6) Public Housing under section 9 of the U.S. Housing Act of 1937.
What “Public Benefits” are EXCLUDED from this Rule?
Medicaid Received by Foreign nationals Under Age 21 and Pregnant Women. DHS has excluded consideration of the receipt of Medicaid by foreign nationals under the age of 21 and pregnant women during pregnancy and during the 60-day period after pregnancy.
Medicare Part D Low-Income Subsidy. DHS has decided to exclude a foreign national’s receipt of such subsidies from the public benefit definition for purposes of the public charge inadmissibility determination.
Benefits Received by Military Servicemembers and their Spouses and Children. The rule’s excludes from the public benefits definition the consideration of public benefits received by an foreign national who at the time of receipt of the public benefit, filing, or adjudication, is enlisted in the U.S. Armed Forces, serving in the active duty or in the Ready Reserve component of the U.S. Armed Forces, or is the spouse or child of such servicemember. This provision applies with respect to applications for admission, adjustment of status, and extension of stay or change of status.
Benefits Received while in a Status that is Exempt from the Public Charge Ground of Inadmissibility. DHS will not consider any public benefits received by a foreign national during periods in which the foreign national was present in the United States in a classification that is exempt from the public charge ground of inadmissibility or for which the foreign national received a waiver of the public charge inadmissibility ground.
Public Benefits Received by Children Eligible for Acquisition of Citizenship. DHS excluded from consideration Medicaid received by children of U.S. citizens whose lawful admission for permanent residence and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child’s acquisition of citizenship, or whose lawful admission for permanent residence will result automatically in the child’s acquisition of citizenship upon finalization of adoption in the United States by the U.S. citizen parent(s) or, upon meeting other eligibility criteria as required.
Benefits Provided for Institutionalization. DHS has removed the reference to long-term institutionalization within the definition of public benefit, as the long-term institutionalization benefits that DHS has in the past considered, and intends to consider under this rule, are already part of the public benefit definition, i.e., Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), and Medicaid.
How Will USCIS and DOS interpret the Receipt of Public Benefits below the Threshold, in the Totality of the Circumstances?
Under this final rule, adjudicators will consider and give appropriate (and probably significant) weight to past receipt of public benefits below the single durational threshold described above in the totality of the circumstances. This means that even though on is not mandatorily a “public charge” you could still be denied as a “public charge” in the discretion of the officer.
What are the “Receipt of Public Benefits”?
DHS has added a definition of “receipt” of public benefits. The new definition clarifies that an application or certification for benefits does not constitute receipt, although it may serve as evidence of the foreign national’s likelihood of receiving public benefits in the future. It also clarifies that when a foreign national receives, applies for, or obtains a certification for public benefits solely on behalf of another person, DHS does not consider the foreign national to have received the benefit.
What does it mean to be “Likely at Any Time to Become a Public Charge”?
DHS has amended the definition of “likely at any time to become a public charge” to clarify that a foreign national is likely at any time to become a public charge if the foreign national is more likely than not at any time in the future to become a public charge, as determined based on the totality of the foreign national’s circumstances. This rather loose standard gives enormous discretion to the adjudicator in the case.
What is a “Primary Caregiver” for purposes of “Receipt of Public Benefits”?
DHS has included a new definition of “primary caregiver” to account for a new consideration in the totality of the circumstances for foreign nationals who may not be currently employed or have employment history but are nonetheless contributing to their households by caring for others. DHS defines a primary caregiver as a foreign national who is 18 years of age or older and has significant responsibility for actively caring for and managing the well-being of a child or an elderly, ill, or disabled person in the foreign national’s household.
Does this New Rule Apply to Nonimmigrants? Yes. Sometimes.
“Likely to Receive” Public Benefits and “Currently Receiving” Public Benefits Condition. DHS will only consider whether the foreign national has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they wish to extend or change, up until the time of adjudication of the extension of stay or change of status request.
Victims of Severe Form of Trafficking in Persons (T) Nonimmigrants and Victims of Criminal Activity (U) Nonimmigrants Exemption. DHS has revised the regulatory provisions relating to the exemption from public charge inadmissibility for individuals who have a pending application for U nonimmigrant status, or who are granted U nonimmigrant status, to align these regulations with the changes to the law made by VAWA 2013. U visa petitioners and those granted U nonimmigrant status are exempt from a public charge inadmissibility determination in any future immigration benefit request that requires a finding of admissibility, not only adjustment of status under section 245(m) of the Act, 8 U.S.C. 1255(m).
VAWA 2013 Public Charge Exemptions and the Affidavit of Support Requirement for Certain Employment-Based Petitions. A foreign national who falls under one of the VAWA 2013 exemptions from public charge inadmissibility would not need to demonstrate that he or she is not likely at any time to become a public charge but would need to submit a sufficient affidavit of support described in 213A of the INA, 8 U.S.C. 1183a, if adjusting under an employed-based category that requires one by statute.
What is this “Totality of the Circumstances Determination” that is made?
The Foreign national is a Primary Caregiver for Household Member as a Consideration in the Education and Skills Factor: DHS has added a provision that would take into consideration whether a foreign national is a primary caregiver of another in the foreign national’s household, for example, a child or elderly relative. This factor is intended to take into consideration difficult-to-monetize contributions by foreign nationals who may lack current employment or an employment history due to their full time, unpaid care of household members.
Heavily Weighted Negative Factor for Receipt of Public Benefits above the Threshold. Under the proposed rule, in conducting the public charge inadmissibility determination, there were two separate heavily weighted factors related to the receipt of public benefits: (1) the foreign national is currently receiving or is currently certified or approved to receive one or more public benefits and (2) a foreign national has received one or more public benefits above the applicable threshold within the 36-months immediately preceding the foreign national’s application for a visa, admission or adjustment of status. DHS has consolidated these factors within one heavily weighted negative factor. The factor will apply in cases where the foreign national has received or has been certified or approved to receive one or more public benefits for more than 12 months within any 36-month period, beginning no earlier than 36 months prior to the foreign national’s application for admission or adjustment of status.
Heavily Weighted Positive Factor for Private Health Insurance. In this final rule, DHS added a new heavily weighted positive factor for when the foreign national has private health insurance appropriate for the expected period of admission, and for which the foreign national does not receive subsidies in the form of premium tax credits (including advance premium tax credits) under the ACA. This heavily weighted positive factor is in addition to the positive factor that would apply in circumstances where an foreign national has sufficient household assets and resources (including health insurance not considered to be a public benefit under 8 CFR 212.22(b)) to cover reasonably foreseeable medical costs, including costs related to a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the foreign national’s ability to provide care for himself or herself, to attend school, or to work.
Evidence of the Foreign National’s Health. In response to concerns regarding the qualifications of USCIS adjudicators to evaluate the foreign national’s health, DHS has revised the rule to clarify that, if the foreign national is required to undergo an immigration medical examination from a civil surgeon or panel physician, DHS will generally defer to the immigration medical examination report when assessing whether the foreign national is more likely than not at any time in the future to become a public charge on account of a diagnosed medical condition unless there is evidence that the report is incomplete. DHS, however, continues to permit the use of other documentation regarding the foreign national’s medical conditions, to assess whether the foreign national’s health makes the foreign national more likely than not to become a public charge at any time in the future.
Household Assets. DHS considers a foreign national’s ownership of “significant assets” similar to the standards in the affidavit of support regulations under 8 CFR 213a.2(c)(2)(iii)(B).
Household Income and Servicemembers of the Armed Forces. DHS has revised the rule to clarify that if the applicant is on active duty, other than training, in the Armed Forces of the United States, the applicant’s gross household income may be 100 percent of the most recent FPG for the foreign national’s household size, in order to serve as a positive factor in the public charge inadmissibility determination.
Household Income and Public Benefits. The applicant’s gross household income does not include any household income from public benefits, as defined in this rule.
Household Income from Illegal Activities. Household income from illegal activity or sources will not be considered as part of the income, assets, or resources factor in the public charge inadmissibility determination. DHS has also consolidated the consideration of income from sources other than household members into a single provision.
Household Income and Evidentiary Considerations. When assessing the foreign national’s annual gross household income, DHS considers the most recent federal tax-year transcripts from the United States Internal Revenue Service (IRS) for each household member whose income will be considered. Additionally, DHS also clarified that if the most recent tax-year transcripts from the IRS are unavailable, DHS will consider other credible and probative evidence of the household member’s income, including an explanation why the evidence is not available.
Fee Waivers and Categories Excluded from Public Charge. A fee waiver request or receipt would not be considered for purposes of determining public charge inadmissibility if the fee waiver was applied for, or granted, as part of an application for which a public charge inadmissibility determination was not required.
Public Benefit Disenrollment and Eligibility. USCIS will consider past public benefits receipt, in the totality of the circumstances. USCIS will consider whether a foreign national has disenrolled or requested to be disenrolled from the public benefit(s). USCIS will also consider, as part of the totality of the circumstances, any evidence that the foreign national submits from a Federal, State, local, or tribal agency administering a public benefit, that the foreign national has specifically identified as showing that the foreign national does not qualify or would not qualify for such public benefit by virtue of, for instance, the foreign national’s annual gross household income or prospective immigration status, or length of stay. While a foreign national’s prospective ineligibility for a given benefit would not be outcome determinative, USCIS will consider the information in the totality of the circumstances.
Education and Skills. DHS has revised the evidentiary considerations for the education and skills factor, to require that applicants submit, with their adjustment of status applications, federal tax return transcripts for the previous three years or, if such transcripts are unavailable, other credible and probative evidence, including an explanation of the unavailability of such transcripts.
Public Charge Bond for Adjustment of Status Applicants
Bond Amount. DHS has reduced the minimum amount in which a public charge bond may be offered to $8,100, annually adjusted for inflation based on the Consumer Price Index for All Urban Consumers (CPI-U) and rounded up to the nearest dollar.
Breach of Bonds and Threshold of Public Benefit Receipt. In the proposed rule, DHS proposed that a public charge bond is considered breached if the bonded foreign national had used public benefits in the amount or for the duration established as the threshold in the proposed public benefits definition. In this final rule, DHS has modified the threshold to a single duration-based threshold and has moved that threshold from the proposed public benefits definition into the public charge definition. To ensure that the bond breach conditions remain the same in this final rule, DHS has revised the rule, and incorporated the single duration threshold “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)” in the bond breach determination.
Substitution. DHS will only offer public charge bonds of unlimited duration.
Cancellation on the basis of Permanent Departure from the United States. DHS has clarified that a foreign national is only considered to have voluntarily lost lawful permanent resident status for the purposes of bond cancellation based on a permanent departure when the foreign national has submitted a record of abandonment of lawful permanent resident status on the form prescribed by DHS and in accordance with the form’s instructions, while the foreign national is outside of the United States.
Discretionary Cancellation. DHS retains discretion to cancel a public charge bond, notwithstanding an absence of a written request from the obligor or foreign national, if DHS determines that a foreign national otherwise meets the applicable eligibility requirements.
Bond Breach and Public Benefits Received while in a Status that is Exempt from the Public Charge Ground of Inadmissibility. DHS will not consider, as part of a public charge bond breach determination, any public benefits received by a foreign national during periods for which the foreign national received a waiver of the public charge inadmissibility ground.
Other Important Changes
Prospective Application of the Rule. This final rule applies prospectively to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date. (DHS retained and further refined provisions addressing how it will consider receipt of public benefits before the effective date of this rule.)
Changes to Form I-539A. DHS has made non-substantive changes to Supplemental Information for Application to Extend/Change Nonimmigrant Status (Form I-539A), which collects biographical information about derivative beneficiaries named on an applicant’s Application to Extend/Change Nonimmigrant Status (Form I-539). Form I-539A was published as a new form on March 8, 2019, to replace Supplement A of Form I-539. In light of the creation of Form I-539A, DHS has moved the information collection regarding public benefits received by the derivative beneficiaries from Form I-539 to Form I-539A. Each derivative beneficiary of a Form I-539 will need to complete a separate Form I-539A, and provide information regarding the derivative beneficiary’s applications for, or receipt of, public benefits, except where the nonimmigrant classification that the derivative beneficiary seeks to extend, or to which the foreign national seeks to change, is exempted from the public charge ground of inadmissibility.
As you can see, there are NUMEROUS, difficult changes to the new “public charge rules, but with proper planning, and working within this system (if it ever goes into effect), legal immigration to the US is still possible, but harder than it has ever been. If you need more information about your particular case and how these new rules apply to your petition, reach out to your attorney at Kuck Baxter Immigration at 404-816-8611, or at www.immigration.net.