Public Charge Ground of Inadmissibility Rule Update Officially Proposed
The Trump Administration published the notice of proposed rulemaking for the Inadmissibility on Public Charge Grounds rule on October 10, 2018 and the proposed rule is currently in the public comment period; this public comment period runs until December 10, 2018.
Prior to this proposal, the Immigration and Naturalization Service (INS), in its 1999 Interim Field Guidance, only directed the consideration of receipt of cash benefits for income maintenance and institutionalized long term care at the government's expense when accessing receipt of public assistance for likelihood of becoming a public charge. In fact, historically non-cash benefits were not a consideration for public charge.
As it is written, under the new proposed rule, those applicants who are subject to public charge ground of inadmissibility and are applying for U.S. Lawful Permanent Residency through filing the I-485 will now need to submit Form I-944 along with their I-485. USCIS could also determine under its discretion that certain beneficiaries of a Form I-129, Form I-129 CW, and I-539 require a Form I-944 and request the submission of one through a Request for Evidence (RFE).
Additionally, the proposed rule establishes a public charge bond process for the adjustment of status; the posting of a public charge bond would allow an alien who is otherwise inadmissible on public charge grounds, but is warranted a favorable exercise of discretion admissibility to the U.S.; in this scenario, the U.S. government would contact the alien regarding the option of the public charge bond including the required bond amount and conditions of the bond.
The proposed rule states that it will affect those subject to section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4) who are seeking admission to the U.S. or are applying for an adjustment of status and also seeks to affect those nonimmigrants applying for an extension of status or change of status (within the U.S.) unless exempted by Congress (51156).
Under the proposed rule, public charge would be defined as an alien who receives one or more public benefit- receipt of certain monetizable and nonmonetizable public benefits: (1) Monetizable benefit(s) with a cumulative value exceeding 15% of the Federal Poverty Guidelines (FPG) for a household of one person in a 12 consecutive month period (2) Nonmonetizable public benefit(s) received for more than 12 months in the aggregate in a 36 month period (3) Where monetizable benefit(s) of less than 15 percent and nonmonetizable benefit(s) for more than 9 months in the aggregate in a 36 month period.
The following is a list of both the monetizable and nonmonetizable public benefits that would be considered under the new rule:
Monetizable- Any Federal, State, local, or tribal cash assistance  for income maintenance, including: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);
○ Benefits that can be monetized in accordance with proposed 8 CFR 212.24:
Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”), 7 U.S.C. 2011 to 2036c; Public housing defined as Section 8 Housing Choice Voucher Program;  Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);  and
Nonmonetizable (Non-cash benefits)- ○ Benefits paid for by Medicaid, 42 U.S.C. 1396 et seq., except for emergency medical conditions as prescribed in in section 1903(v) of Title XIX of the Social Security Act, 42 U.S.C. 1396b(v), 42 CFR 440.255(c), and for services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA); and benefits provided to foreign-born children of U.S. citizen parents;
○ Premium and Cost Sharing Subsidies for Medicare Part D;  Benefits provided for institutionalization for long-term care at government expense;
○ Subsidized Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.
For monetizable benefits provided on the basis of a household rather than the individual where the alien counts toward the household size, only the portion of the benefit that is attributable to the alien will be counted toward the alien. On the other hand, if the alien is not eligible for the benefit, but is part of a household that receives the monetizable benefit, that benefit will not be counted toward the alien (e.g., a housing benefit).
The proposed rule seeks to exclude from consideration any public benefits received by active servicemen and their families.
The proposed rule also makes clear that the current receipt of public benefit(s) is not determinative for public charge, but rather that the issue to be determined under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4) is the likelihood of becoming a public charge at any time in the future. In fact, public charge is a totality of the circumstance test and cannot be determined based on one factor alone except for an absent/insufficient affidavit of support (where required); under the proposed rule, the factors (i.e., alien's age; health; family status; assets, resources, and financial status; education and skills; required affidavit of support; and any other factor or circumstance that may warrant consideration in the public charge inadmissibility determination) would be weighed and if the positive factors outweigh the negative ones, the alien would not be inadmissible on public charge grounds. Further, it is noted in the proposed rule that it is not just the possibility of the alien requiring public support, but rather "some specific circumstance tending to show that the burden of supporting the alien is likely to be cast on the public." (55179)
Regarding the specific factors to be considered in the totality of the circumstances test:
(1) Age- Generally, an alien whose age is between 18-61 would be a positive factor, while, an age above or below this age range would be a negative factor.
(2) Health- A medical condition alone would not cause an alien to be deemed inadmissible, but rather the medical condition would be considered in the context of ability to work or attend school. Also, the government would take into consideration if the alien has private health insurance or ability to pay associated cost of the medical condition.
(3) Family Status- This factor relates to the ability of the alien to support themselves or to be supported despite household size.
(4) Assets/Resources/Financial Status- Gross household income of at least 125% of the federal poverty guideline based on the household size to be viewed as a positive factor. Other considerations for this factor would be any liabilities (per the alien's credit report/score) and if the alien has or is receiving any public benefits. The proposed rule goes on to state that an application/certification/approval for a public benefit or that an application/receipt of immigration benefit fee waiver on or after the date of the final rule would be a (negative) consideration for evidence of financial status. (51187)
(5) Education and Skills- If these items make the alien more employable then this would be a positive factor. Also, not being proficient in English would be a negative factor. USCIS would be directed to review, among other items, "evidence of the alien's recent history of employment; The alien's academic degree or certifications including a high school degree (or equivalent) or higher; The alien's occupational skills, certifications, or licenses; and The alien's proficiency in English or proficiencies in additional languages."
Some of the (above) factors will be weighed more heavily:
(1) Negative- Lack of Employability, Current Receipt of One or More Public Benefits, Receipt of Public Benefits within 36 Months of Filing the Application, Financial Means to Pay for Medical Costs, Alien Previously Found Inadmissible or Deportable on Public charge Grounds
(2) Positive- Significant Income/Assets/Resources,
The proposed rule also states that the alien would not be penalized for the receipt of public benefits excluded under the previous guidance that was received before the final rule went into effect (51206)
A summary of the factors for public charge for the proposed rule is provided in table format on page 51211 of the proposed rule.
While the purpose of this proposed rule is to ensure that those people coming to the U.S. temporarily or to become U.S. Lawful Permanent Residents are self-sufficient and do not burden the U.S. economy, on its face, this proposed rule appears to be too far reaching- to the point where it would likely endanger those U.S. citizens and green card holders adults and children otherwise eligible and in need of public assistance/benefits; since their receipt of certain public benefits would be counted toward the alien's receipt of public benefits, it appears likely that these U.S. citizens and green card holders would choose to forgo the much needed public benefit to avoid jeopardizing the alien's admissibility as it relates to the public charge criterion. Ironically, Congress has already banned non-citizens from receiving many public benefits (e.g., welfare, SSI, and non-emergency Medicaid). So, the new result of this proposed rule would be that now a U.S. citizen or U.S. Lawful Permanent adult or child will go hungry or without medical attention or proper shelter in order to help ensure that their alien family member would not be deemed inadmissible to the U.S. on public charge grounds; this resuly does not appear to be in line with the stated intent of the proposed rule.
It is also clear that this proposed rule could cause other bad consequences- An employer's unwillingness to sponsor necessary and qualified candidates on an employment based nonimmigrant visa due to uncertainty of the outcome of the determination of the admissibility of the alien as it relates to public charge grounds and the delay that such a determination could cause.
Just because this rule has been proposed does not mean that it must go into effect. In fact, portions of the rule do not appear to be properly supported/justified and attempt to stretch what the Trump Administration claims to be the intent of certain other guidance and precedent. I recommend that the public carefully reviews this rule and submits their comments here by December 10, 2018. Please make your voice heard!
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