This week, the Department of Homeland Security, or DHS, published a new public charge rule. The rule will not take effect until October 15, but many people already have questions about it. Through this blog post, we hope to explain a little bit about what public charge is, what the new rule means and who it could impact.

So, what is public charge?

When an immigrant applies for permanent residence, there are certain eligibility requirements they must meet. There is also a list of what are called inadmissibility grounds or what are essentially “disqualifiers” for permanent residence.

One of those inadmissibility grounds or “disqualifiers” is someone who is likely to become a public charge. What that means is they are likely to become primarily dependent on public or government funded benefits.

Under the current public charge rule, as it is being called, immigration officers consider several factors to decide if an applicant for permanent residence is likely to become a public charge.

Officers primarily rely on the Affidavit of Support. The Affidavit of Support is a form completed by the applicant’s family member who is applying for or sponsoring them. The sponsor must show he or she is willing to financially support the applicant if they cannot support themselves and they do that by signing the Affidavit of Support.

Immigration officers also take into consideration if an applicant has received any cash-based assistance from the government, like Social Security income, in the past. In those cases, the applicant needs to show it is not likely they will need to use those benefits in the future.

 

What does the new public charge rule mean?

Under the new rule, the definition of public charge changes, the role of the Affidavit of Support is minimized, and the number of public benefits considered is increased.

When the new rule takes effect in October, immigration officers will consider whether an applicant for permanent residence is likely at any time to become a public charge rather than whether they are likely to become primarily dependent on public benefits.

The new rule also defines the term public charge to mean an applicant who is more likely than not to receive one or more of the listed public benefits for more than 12 months total in a 36-month period.

The expanded list of benefits includes Medicaid, with some exceptions for minors and pregnant women, SNAP or FoodShare benefits, as well as housing vouchers and rental assistance.

It should be noted most non-U.S. citizens are NOT eligible for these benefits. Typically to receive these benefits, you must be what is called a “qualified alien.”

To determine whether an applicant is likely to receive these public benefits, immigration officers will consider several factors. These factors are the applicant’s age, health, family status, assets and resources, education and skills and the affidavit of support.

So, now, rather than relying heavily or solely on the Affidavit of Support, the officer may consider whether the applicant’s age affects his or her ability to work and whether the applicant has a medical condition which may affect his or her ability to work or care for themselves and whether they have health insurance.

The officer can also consider the applicant’s household size, including who relies on them for support or who supports the applicant. In addition to the applicant’s income, the officer can also consider his or her assets and debts. The officer can also consider the applicant’s education and skills to work as well as their English proficiency.

 

For Example:

To summarize the changes in an example, let us say John has applied for his wife, Mary. Under the current rule, so long as John can show he meets the income requirements for the Affidavit of Support and Mary can show she has not received any public benefits, she would likely not have any issue showing she is not likely to become a public charge.

Under the new rule, even if John meets the income requirements for the Affidavit of Support, Mary’s age, health, family status, assets, and education and skills will be considered. If perhaps, Mary is older or has a chronic health condition, she may have a difficult time showing she is not likely to become a public charge. Or, if she was not able to complete any studies beyond middle school and does not speak English very well, she may also have difficulty.

 

While it is too early to say what types of documents applicants will be required to submit to show they will not become public charges, we know they will need to submit a new form. Applicants will undoubtedly have a higher burden under the new rule.

Remember:

  • This rule takes effect October 15, 2019. It is not retroactive and does not apply to applications received before that date. It is also possible the rule will be challenged in court and the effective date may be postponed.
  • Benefits received by an applicant’s U.S. citizen children or other family members are not considered in determining whether the applicant is likely to become a public charge.
  • The rule does not apply to certain immigrants including refugees, asylees, and other immigrants admitted for humanitarian reasons (including VAWA petitioners and those granted U and T Visas).
  • Before making any decisions, such as canceling any benefits you or your family members received, consult with an immigration attorney to avoid any unnecessary impact.

To conclude, if after consulting with an immigration attorney, you think the new rule will affect you, you have until October 14 to submit your application for permanent residence without the new rule affecting you. If you may be eligible to apply for permanent residence after October 15, you can save or gather documents which can be used to show you are not likely to become a public charge.

Please note: This is an overview of the public charge rule and is not meant to be legal advice. For information on your specific situation, we recommend you use our contact form to schedule an appointment with our office. We would be glad to help you determine the best option for you.