• Patricia Brandt, Attorney

What is the “public charge” rule? Who will it affect? What impact does this have for me?


The public charge concept was first established by Congress in 1882 in order to allow the U.S. government to deny a U.S. visa to anyone who “is likely at any time to become a public charge” — but without defining what “public charge” means. Under the Trump administration, the “Public Charge rule” is being interpreted broadly and redefines what makes them dependent on government benefits — or “likely” to be in the future.


The U.S. Department of Homeland Security’s (DHS) new public charge rule took effect on Feb. 24, 2020, applies nationwide, and affects people applying for green cards and visas from within the United States, through a process known as “Adjustment of Status.”

Before this change, 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 by law 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.


The Feb. 24, 2020 change expanded 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. The following three numerated points are the new criteria for denying a green card application from within the United States:


1. PRIOR USE OF CERTAIN GOVERNMENT BENEFITS


A “public charge” denial would be triggered if someone has received one or more of the below listed 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.


  • 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).

(DHS will not penalize applicants for use of these benefits by a spouse or child)


2. LIKELIHOOD OF FUTURE USE OF GOVERNMENT BENEFITS


The changed definitions 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;

· Health;

· Family status;

· Assets, resources, and financial status;

· Education and skills;

· Prospective immigration status;

· Expected period of admission; and

· Sufficient Affidavit of Support

3. INSUFFICIENT FINANCIAL RESOURCES


Applicants who pass the above bars can 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). It is not to be confused with the “Affidavit of Support” (Form I-864). The I-944 places financial requirements on the applicant, not just the sponsor.

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 has 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.” As an example, 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?

Green card applicants who apply from within the US

Temporary visa applicants who apply from within the US

Who is exempted?

Refugees, asylees, individuals who have experienced domestic violence, and other special categories.

What impact will the changes have on applicants?

Denying marriage green card applicants

Denying family based green card applicants

What does this mean for me?

You need legal advice on these issues. Contact an Immigration Attorney near you.

Official page on the DHS public charge rule: https://www.uscis.gov/archive/archive-news/final-rule-public-charge-ground-inadmissibility

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