The drafts of a proposed rule- expanding forms of public assistance that could cause inadmissibility on grounds of public charge- has been circulating for some time.
A determination of inadmissibility on grounds of public charge would affect one's ability to become a green card holder and one's ability to renew his or her green card.
Currently, the use of only limited forms of public assistance can lead to one being found inadmissible on public charge grounds: receipt of public cash assistance for income maintenance and institutionalization for long term care at government expense; receipt of these forms of public assistance is a consideration when the U.S. government applies its totality of the circumstances test in determining whether an applicant is deemed inadmissible on public charge grounds; in performing this test, the U.S. government will also consider the factors of the applicant's age, health, family status, assets, resources, financial status, and education and skills. Under this test, consideration of one factor alone cannot cause an applicant to be deemed inadmissible on public charge grounds. Additionally, it is important to note that, currently, the government will not hold a different family member's use of cash benefits against the applicant unless that family member's cash benefits amounts to the sole support of the family.
Generally, the U.S. government does not even consider non-cash benefits (excluding institutionalization for long-term care) or special purpose cash benefits received by the applicant or his or her family members when performing its totality of the circumstances test for public charge grounds. On its website, USCIS specifically lists the following forms of public assistance as generally not considerations for public charge grounds: Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional careChildren's Health Insurance Program (CHIP)Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programsHousing benefitsChild care servicesEnergy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)Emergency disaster reliefFoster care and adoption assistanceEducational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher educationJob training programsIn-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter).
Under the draft of the proposed rule that is currently circulating, items such as the Earned Income Tax Credit (EIC) and health insurance subsidies would now become considerations for public charge grounds in the totality of the circumstances test; items such as these would be considered for public charge through redifining "public benefit" to include "cash and non-cash public benefits that are means-tested or otherwise used to meet basic living requirements." (p. 52).
It is also worth noting that under the current draft of the proposed rule, it is explicitly stated that for the totality of the circumstances test, that factors of the alien's assets, resources, and financial status together would be the factors that are generally given the most weight when performing the totality of the circumstances test for public charge (p.55-6); and, in considering the "health" factor for the totality of the circumstances test, the proposed rule considers the fact of one having non-subsidized health insurance (e.g., Medicaid, CHIP, ACA exchange subsidies, etc.) as a "heavily weighted negative factor." (p. 67); additionally, for the "financial status" factor, the proposed rule seeks to include the alien's "past reliance on public benefits" as a positive or negative factor depending on the circumstances (p. 74); and, also, this version of the proposed rule looks to penalize the request, receipt, or use of public benefits even if the benefits are for a dependent U.S. citizen child. (p. 74).
In terms of evidentiary requirements for financial status under this version of the proposed rule, the Department of Homeland Security (DHS) seeks that USCIS consider the following items at a minimum: (1) the alien's and any dependent's request or receipt of public benefits (2) receipt of immigration related fee waivers (3) the alien's credit report and score.
For the factor of "education and skill," the DHS considers English language proficiency to be a relevant factor for public charge determination, and, one's inability to speak and understand it. (p. 88).
The proposed rule then goes on to detail certain factors that would be heavily weighted as either negative or positive factors (p. 95-104) and lists specific benefits that will now be considered for public charge (p.106-7). These benefits include items that are currently excluded from consideration, including, but not limited to: Supplemental Security Income (SSI) under 42 U.S.C. 1381, Temporary Assistance to Needy Families (TANF), non-emergency benefits under Medicaid, subsidized health insurance, Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and State Children's Health Insurance Program (CHIP or sCHIP).
It is also worth mentioning that for those applicants that are found inadmissible on grounds of public charge, they may be offered the opportunity to post a public charge bond to overcome these grounds of inadmissibility at the discretion of the Department of Homeland Security (DHS); the bond would be a pledge of money to guarantee that the applicant will meet the government's conditions (i.e., not become a public charge); it would be a minimum of $10,000 for this bond (p. 110-22).
Although this 223 page document is only a draft of the proposed rule, it is believed that the government is close to finalizing the proposed rule and that this proposed rule will go through the rule-making process in the very near future; based on the very data that is included in the proposed rule, it appears that if this rule were to go into effect as is, the rule would likely prevent many applicants from successfully obtaining U.S. Lawful Permanent Residency or a green card renewal due to being deemed likely to become a public charge.
Despite the fact that this is only a draft of the proposed rule, as the drafts of this proposed rule have been leaked, the rule has already caused those wishing to obtain U.S. Lawful Permanent Residency or renew their green card to reconsider their and their family's request, receipt, and/or use of public assistance even if the public assistance in question is currently not a consideration for public charge; this in turn, is affecting their U.S. citizen dependent children in terms of not being able to benefit from the public assistance that they may be entitled to.
Based on the way that the rule is written, it would be a heavily weighted negative factor for someone to currently receive or use or have received or used public benefits within the past 36 months. Despite the fact that the proposed rule states that the current or past receipt or use of public benefits alone cannot justify a finding of inadmissibility on public charge grounds, the fact that this totality of the circumstances test appears easily manipulable, would likely make it unwise for an applicant who (or whose family) currently or has received or used at least one public benefit in the past 36 months to apply for U.S. Lawful Permanent Residency or to renew their green card if doing so under the terms of this rule.
If you or your family member will be, is, or has used a public benefit, you may wish to consult with an immigration attorney or immigration law firm before applying for certain immigration benefits including, but not limited to before applying for U.S. Lawful Permanent Residency and before applying for green card renewal.
***Please keep in mind that this blog posting is for educational purposes only (i.e., to give you general information and a general understanding of this immigration related matter); this blog posting does not provide specific legal advice and does not form an attorney-client relationship.***
The Law Offices of Rebecca Carcagno, PLLC
A U.S. Immigration Law Firm
3830 Packard St, Suite 240
Ann Arbor, Michigan 48108