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Immigration Law Associates, PC

Changes to Public Charge Policy

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“This new unilateral policy will radically change legal immigration, drastically limiting immigration for people earning less than $ 62,750 a year for a family of four.”

Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation. It was memorialized in the Immigration Act of 1882 and updated in the Immigration and Nationality Act of 1952. Further changes were made at the legislative and regulatory levels in the 1980s and 1990s, but by and large the test has remained the same.

Public charge is used in immigration law to refer to a person who is likely to become dependent on the government for financial and material support. USCIS defines “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to that of an individual lawfully admitted for permanent residence (green card) is inadmissible if the individual, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

In determining whether an alien meets this definition for public charge inadmissibility, several factors are considered, including 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.

The USCIS guidance specifies which Benefits are Subject to public charge consideration like cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs as well as specifies which benefits are not subject to public charge consideration as Medicaid and other health insurance and health services, Children’s Health Insurance Program (CHIP), Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP), 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, Job training programs, In-kind, community-based programs, services or assistance, Non-cash benefits under TANF, Cash payments that have been earned and Unemployment compensations.

Recently there have been some changes regarding the public charge on immigration, this new unilateral policy taken in reference to this figure would radically change legal immigration, drastically limiting immigration for people who earn less than $ 62,750 a year for a family of four, through memorandum PM-602-0163,the Office of Citizenship and Immigration Services (USCIS) will apply seven new conditions to reject or withdraw Permanent Legal Residence or citizenship to immigrants, among which is placed at the same level someone who committed a crime or fraud with people who have applied for federal assistance, such as food or health.

There are conditions that the Department of Homeland Security (DHS) will apply to these immigrants susceptible to rejection of any immigration benefit, such as not showing access to health insurance, not being employed or being enrolled as a full-time student or even having received help in the last six months.

Those immigrants who have applied to any of the following federal programs may face problems obtaining a “Green Card” or citizenship:

  • SSI, TANF, GA
  • Medicaid
  • State Children’s Health Insurance Program (SCHIP)
  • Any “health insurance subsidized by the government” (not explicitly excluded)
  • Special Supplemental Nutrition Program for Women, Infants and Children (WIC)
  • Supplemental Nutrition Assistance Program (SNAP)
  • US Department of Housing and Urban Development (HUD)
  • Energy Assistance Program for Low Income Households (LIHEAP)
  • Reimbursable tax credits when the credit “exceeds the tax liability,” including the tax credit for earned income (EITC), tax credit for children, tax credit for opportunity and superior tax credit
  • Medicare, in cases where “premiums are partially or fully paid by a government agency”
  • Pell Scholarships and other educational benefits
  • Any other government assistance in the form of assistance or services.

 

Key Differences between Current and Draft Proposedd “Public Charge” Policies

  1. Definition of Public Charge

Current Rule: An alien who has become or who is likely to become ‘‘primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.’’

Draft Proposed Rule: A person who is dependent on public benefits. Public benefit means any government assistance in the form of cash, checks or other forms of money transfers, or instrument and non-cash government assistance in the form of aid, services, or other relief, except those benefits specifically excluded.

  1. Consideration of Use of Public Benefits in in a Public Charge Determination

Current Rule: May take into consideration past and current receipt of cash public assistance for income maintenance or institutionalized long-term care and no weight should be placed on receipt of non-cash benefits or receipt of cash benefits for purposes other than income maintenance.

Draft Proposed Rule May consider:

  • Whether individual has sought, has received, or is receiving any public benefit
  • Whether individual has received any public benefit within the last two years
  • Whether individual has received or is likely to receive any subsidized health insurance

 

  1. Benefits that May Be Considered for Public Charge Purposes

Current Rule:

  • SSI
  • TANF
  • State/local cash assistance programs
  • Public assistance for long-term care in an institution (including Medicaid)

Draft Proposed Rule:

  • SSI
  • TANF
  • State/local cash assistance programs
  • Public assistance for long- and short-term institutionalized care
  • Any other federal public benefits for purposes of maintaining the individual’s income
  • Medicaid
  • CHIP
  • Premium subsidies for Marketplace coverage
  • State/local subsidized health insurance
  • SNAP (formerly, Food Stamps)
  • WIC
  • Transportation vouchers or other non-cash transportation services
  • Housing assistance
  • LIHEAP energy benefits
  • Certain educational benefits, including Head Start
  1. Benefits that May NOT Be Considered for Public Charge Purposes

Current Rule:

  • Medicaid and other health insurance and health services (except for institutional long-term care)
  • CHIP
  • Nutrition programs, including Food Stamps (now known as SNAP), WIC, the National School Lunch and Breakfast program, and other supplementary and emergency food assistance programs
  • Housing benefits
  • Child care services
  • Energy assistance, such as LIHEAP
  • Emergency disaster relief
  • Foster care and adoption assistance
  • Educational assistance, including Head Start
  • Job training programs
  • In-kind community-based programs
  • State and local programs
  • Earned cash payments (e.g., Social Security, veteran’s benefits)
  • “Special purpose” cash benefits or any other non-cash benefit programs

Draft Proposed Rule:

  • Emergency or disaster relief
  • Educational and child care block grants, including public school and school lunch programs
  • Earned benefits (e.g., Social Security, veteran’s benefits, Medicare)
  • Services or benefits available to the community as a whole and not to a specific individual
  • Government loans that require repayment.

These sweeping changes would put immigrant parents in a terrible bind. Lawfully residing parents that would like a green card to stay in the US permanently would be forced to choose between allowing their citizen children to avail themselves of the public benefits they need (and to which they are entitled) and someday getting a green card to keep their family together in the US over the long term.

 

 

 

 

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