There is a lot of confusion regarding the immigration public charge policies and rules. The confusion around the changes to the Public Charge documentation has had a chilling effect on immigration. In this article, we’ll clarify the terminology and the changes in the application process.
What Does “Public Charge” Mean?
A foreign national who is likely at any time to become a public charge is generally inadmissible to the United States and ineligible to become a lawful permanent resident.
U.S. Citizenship and Immigration Services defines Immigration Public Charge as:
“…an alien who has received one or more public benefits, as defined in the rule, for more than 12 months in total within any 36-month period.” If you received two benefits in one month, it will count as two total months.U.S. Citizenship and Immigration Services
Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to become a public charge. In other words, more likely than not at any time in the future to receive one or more of the public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period.
However, an individual who has received or is receiving public benefits does not automatically make an individual likely at any time in the future to become a public charge. Below are examples of what is and is not a public charge benefit that may affect your immigration case.
Public Benefits Considered
DHS will only consider public benefits as listed in the rule, including:
- Supplemental Security Income;
- Temporary Assistance for Needy Families;
- Any federal, state, local, or tribal 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 (formerly called food stamps);
- Section 8 Housing Assistance under the Housing Choice Voucher Program;
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
- Public Housing (under the Housing Act of 1937, 42 U.S.C. 1437 et seq.); and
- Federally funded Medicaid (with certain exclusions).
Public Benefits Not Considered
DHS will not consider:
- Emergency medical assistance;
- Disaster relief;
- National school lunch programs;
- The Special Supplemental Nutrition Program for Women, Infants, and Children ;
- The Children’s Health Insurance Program;
- Subsidies for foster care and adoption;
- Government-subsidized student and mortgage loans;
- Energy assistance;
- Food pantries and homeless shelters; and
- Head Start.
Moreover, on March 13, 2020, USCIS announced that it encourages everyone with symptoms that resemble Coronavirus 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.
Additionally, unemployment insurance payments are not generally taken into consideration by the U.S. Department of Homeland Security (DHS) for purposes of making a public charge determination. As DHS explained in its final rule on inadmissibility on public charge grounds, “DHS would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, post-secondary education, and unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person’s employment and specific tax deductions.” In addition, USCIS indicates in Volume 8, Part G, Chapter 10 of the USCIS Policy Manual that unemployment benefits are not considered by USCIS in a public charge inadmissibility determination as unemployment insurance is considered by USCIS as an “earned” benefit.
Who and Where is the Immigration Public Charge Rule Enforced?
On Feb. 24, 2020, the Department of Homeland Security began implementing the Inadmissibility on Public Charge Grounds final rule nationwide on cases received after that date. This means that if you are applying for permanent resident status with U.S. Citizenship and Immigration Services or before an Immigration Judge, you will need to prove that you will not become a public charge.
When making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s:
- Family status;
- Assets, resources, and financial status;
- Education and skills;
- Prospective immigration status;
- Expected period of admission; and
- Sufficient Affidavit of Support Under Section 213A of the INA, Form I-864 or Form I-864EZ, when required under section 212(a)(4)(C) or (D) of the INA, 8 U.S.C. 1182(a)(4)(C) or (D).
No single factor makes a foreign national inadmissible based on the public charge ground, except not filing a sufficient Form I-864 or Form I-864EZ, when required. The determination of an alien’s likelihood of becoming a public charge at any time in the future is a prospective determination that is based on the totality of the foreign national’s circumstances and by weighing all of the factors that are relevant to the foreign national’s case.
Exceptions to Immigration Public Charge
Significantly, there are certain situations where USCIS will not apply the Public Charge Rule to certain individuals.
The rule does not apply to:
- U.S. citizens, even if the U.S. citizen is related to a noncitizen who is subject to the public charge ground of inadmissibility; or
- Foreign Nationals whom Congress exempted from the public charge ground of inadmissibility, such as:
- Afghans and Iraqis with special immigrant visas
- Certain nonimmigrant trafficking and crime victims
- Individuals applying under the Violence Against Women Act (male and female victims of domestic violence
- Special immigrant juveniles, and
- Those to whom DHS has granted a waiver of public charge inadmissibility.
Misperception About Public Resources
One of the largest misperceptions about Immigration Public Charge is that many aliens will be using welfare resources.
This is incorrect because most Federal Benefits, such as food stamps, heath care, and Section 8 housing, require a valid Social Security number.
Consequently, since aspiring immigrants and those applying for Green Cards do not have a Social Security number they can’t legally receive financial benefits.
Form I-944, Declaration of Self-Sufficiency
If you are required to submit Form I-944, Declaration of Self-Sufficiency, you will be required to show your financial situation.
This 18-page document requires you to document:
- Previous Tax Return Filings
- Income (at least 125 percent of the federal poverty guideline where you reside)
- Credit Record
- Bankruptcy declarations
- Health Insurance provider
- Occupational Skills
- Employment Prospects
As you can see the determination isn’t solely based on your income or financial resources. It evaluates many other factors including your age, health and employability. The immigration officer reviewing form I-944 is supposed to evaluate the totality of your situation.
Does Public Charge Apply to Green Card Renewals?
There is no public charge test when you apply to renew your green card or to apply for U.S. citizenship (naturalization). Many Green Card holders are anxious about some of the rule changes. They’re concerned that if they encounter any financial difficulties, their children will by be ineligible for AHCCS or Food Stamps. The answer is that they can receive benefits if they qualify for them. The Public Charge rules do not apply to the children.
Department of State’s Public Charge Rule
The rules for Public Charge entail a slightly different process when applying for a visa abroad. One of the initial differences will be that you do not need to prepare Form I-944, and instead must complete Form DS-5540, Public Charge Questionnaire. However, essentially, the consular officer will consider the same information as the USCIS officer and the foreign national must prove to the immigration officer’s satisfaction that he or she will not become a financial burden.
Broad discretion of meaning of public charge by consulate officers
Unfortunately, the U.S. Consulate in Ciudad Juarez analyses the public charge rule more stringently than other consulates and embassies.
Notably, if a joint sponsor is required, the consulate in Ciudad Juarez is more likely to find the foreign national is likely to become a public charge.
For example, an older woman who was a U.S. citizen petitioned for her elderly mother to become a permanent resident. During the consular process, the U.S. citizen woman became injured at her place of business and could no longer work. Because she was no longer employed, her U.S. citizen adult son was listed as a joint sponsor for his grandmother.
The consular officer denied the elderly mother’s immigrant visa claiming that she would likely become a burden to the Federal Government since her U.S. citizen daughter was not working, and the foreign national was not in a position to work either.
Consequently, it is advisable to get legal guidance from an immigration attorney and to do as much research and preparation as possible before applying.
Negative Effects of the Public Charge Rule
Some of the problems associated with the Public Charge rules are:
- It has a chilling effect on people who can receive and need public benefits. If someone in a household is undocumented the applicant may be fearful to apply for benefits for their U.S. citizen children such as free school lunches, health care coverage other non-cash programs that they most likely would receive. The concern is that receiving any public assistance could jeopardize their immigration status.
- Paperwork and information required have increased. The form to apply for a Green Card has significantly increased pages and supporting documentation.
Positive Impact of the Public Charge Rule
The Federal Government designed these new rules to reduce the amount of money going to illegal aliens. However there are already rules and laws in place that prevent illegals from receiving public benefits.
Immigration Public Charge Wrap Up
Do not let this new rule create fear or hesitation in your desire to become a legal resident. While the paperwork and wait times have increased, the goal of access to the U.S. is still attainable.
If you’re feeling overwhelmed with the process, finding an immigration attorney to help you walk through the process and forms will help you through the process.
You can experience our dedication and professionalism by calling and scheduling a consultation with us at 602-795-8383.