What's New in the World of Immigration?

02/24/2020 - The Public Charge Rule, Explained

What is the “public charge” rule? - Selected excerpts from Boundless.com 02/24/2020

IMPORTANT UPDATE: The U.S. Department of Homeland Security’s new public charge rule took effect on Feb. 24, 2020, and applies nationwide...

The new rule affects people applying for green cards and visas from within the United States, through a process known as “Adjustment of Status.”

Among all the measures that the Trump administration has pursued so far to constrain legal immigration, the “public charge rule” could have the biggest impact.

Various legislative proposals to reduce legal immigration have been endorsed by the Trump administration but have effectively zero chance of becoming law. In contrast, the administration believes that it can implement the public charge rule through executive action, without an act of Congress.

Since 1999, immigration officers have adopted the guiding principle that a public charge is someone “primarily dependent on the government for subsistence,” as demonstrated by either (a) using public cash assistance for income maintenance or (b) institutionalization for long-term care at government expense. Specifically, this has included:

• Supplemental Security Income (SSI)
• Temporary Assistance for Needy Families (TANF), commonly known as “welfare”
• State and local cash assistance, sometimes called “General Assistance”
• Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution

Under this policy, very few immigrants have been denied green cards on public-charge grounds, for two primary reasons. First, Congress has already barred most immigrants from using welfare, so prior use of these benefits is out of the question. Second, Congress requires that most green card applicants have a financial sponsor — typically a U.S.-citizen spouse or other family member — who can demonstrate sufficient income to prevent future dependency on government benefits. That income threshold is defined in statute as 125% of the Federal Poverty Guidelines, currently $21,137 for most couples without children.

That’s why, for the past two decades, the vast majority of visa applicants have been able to avoid the “public charge” roadblock by submitting a financial sponsor’s Affidavit of Support, accompanied by evidence of meeting the statutory income threshold.

What will change under the new DHS “public charge rule” proposal?

DHS plans to dramatically expand the definition of “public charge,” so that green card and other visa applicants could be denied not for being “primarily dependent on the government for subsistence” (the current standard) but instead for being “more likely than not” to use certain public benefits at any point in the future.

Under the final regulation, DHS would create the following new criteria for denying a green card application from within the United States:

(1) Prior use of certain government benefits. Instead of limiting the definition of off-limits government benefits to welfare payments and subsidized long-term institutionalization, the new policy would expand the definition to include a wider range of common government benefits:

• All of the status quo benefits list above (SSI, TANF, general assistance, and long-term institutional care)
• Supplemental Nutrition Assistance Program (SNAP), commonly knowns as “Food Stamps”
• Section 8 housing and rental assistance
• Federal housing subsidies
• Nonemergency Medicaid benefits (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)

  A “public charge” denial would be triggered if someone has received one or more of the above public benefits, for more than 12 months in aggregate within any 36-month period. Receipt of two benefits in one month counts as two months.

  (DHS will not penalize applicants for use of these benefits by a spouse or child, in a departure from previously reported drafts.)

  It’s important to note that DHS does not have the authority to make anybody ineligible for these benefits, which are administered by other federal agencies under various acts of Congress. DHS would, in effect, be penalizing visa applicants for using benefits they are allowed to take advantage of under existing law.

  And it’s also important to understand that the great majority of people applying for green cards are not even eligible for the very benefits that the DHS public charge rule seeks to penalize. Unfortunately, this rule has created a “chilling effect” that scares many people into disenrolling from public benefits even though they don’t need to.

  (2) Likelihood of future use of government benefits. Although the following general criteria are defined by Congress, DHS plans to greatly expand the number of specific factors that immigration officers must take into account when determining whether or not a visa applicant is likely to become a “public charge” at any point in the future.

  • Age: Applicants could be denied if they are younger than the minimum age for full-time employment (18), older than the minimum “early retirement age” for social security purposes (61), or otherwise at an age that impacts their “ability to work.”
  • Health: DHS plans to scrutinize any medical condition and assess whether this condition could affect the applicant’s ability to work, potentially expanding the scope of the required medical examination.
  • Family size: Having more children or other dependents could increase the likelihood of a visa denial.
  • Skills: DHS plans to determine whether an applicant has “adequate education and skills to either obtain or maintain employment” (if authorized to work), by looking at employment history, high school degree and higher education, “occupational skills, certifications, or licenses,” and proficiency in English or other languages.
  • Financial status: Above and beyond looking at an applicant’s income and assets (see below), DHS plans to assess credit history, credit score, and financial liabilities, plus whether the applicant has private health insurance or enough resources to cover “any reasonably foreseeable medical costs” that could interfere with work or study.

  (3) Insufficient financial resources. Even if an applicant has never used government benefits in the past and meets all of the above criteria to demonstrate low likelihood of using benefits in the future, they could still be blocked by an entirely new requirement: personal financial resources. DHS plans to require a new form called the “Declaration of Self-Sufficiency” (Form I-944) to accompany most applications for green cards. This form would collect information intended to help immigration officers determine whether the applicant is a “public charge” under the new, more expansive criteria outlined above.

  This new form is not to be confused with the “Affidavit of Support” (Form I-864), which Congress has mandated since 1996 to demonstrate the financial resources of the person sponsoring the applicant for a green card or other visa. Until now, immigration officers have typically given great deference to an Affidavit of Support showing that the sponsor has an income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines, since this is a statutory threshold indicating that the visa applicant will have sufficient financial resources to avoid becoming dependent on government benefits.

  Under the new policy, however, DHS plans to impose similar financial requirements on the applicant, not just the sponsor. It appears that at a minimum, applicants will have to demonstrate household income (or asset equivalent) of at least 125% of the Federal Poverty Guidelines. But in addition, DHS would set an entirely new and higher household income threshold at 250% of the poverty guidelines, establishing this much higher hurdle as a “heavily weighted positive factor.”

  This could mean that, to safely avoid denial on public-charge grounds, an applicant would need to show annual household income of $41,150 (for a couple with no children) on up to $73,550 (for a family of five) or higher.

  Who would be affected by this policy change?

  The new public charge rule would apply to the vast majority of applicants for green cards (permanent residence). This includes green card applicant's sponsored by U.S. citizen or lawful permanent resident family, employer sponsorship, and temporary visa applicants.

  Those seeking temporary visas will not be subject to the Form I-944 or future-looking tests described above, but still must demonstrate that they have not received the above-mentioned 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).”

  Exemptions

  The public charge rule will not apply to visa applicants whom Congress has exempted from the public charge test, such as refugees, asylees, individuals who have experienced domestic violence, and other special categories.

  Estimated impact

  Given that the new public charge rule would create an entirely new income requirement for visa applicants (not just their sponsors) and would set this household income threshold as high as 250% of the Federal Poverty Guidelines, the following possible impacts have been estimated:

  DHS could begin denying up to nearly half of all marriage green card applicants, each year forcing nearly 200,000 couples to either leave the United States together or live apart indefinitely. (Source: Boundless Immigration)

  Some 56% of all family-based green card applicants could be denied under the public charge rule’s unprecedented income requirement — more than the 47% at risk based on prior use of government benefits. (Source: Migration Policy Institute)

  Moreover, this new hurdle would have disproportionate effects, blocking 71% of applicants from Mexico and Central America, 69% from Africa, and 52% from Asia — but only 36% from Europe, Canada, and Oceania. (Source: Migration Policy Institute)