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:

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.

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:

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.
 

(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.