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Understanding the New DHS “Public Charge” Rule

Alert:

After a ruling by the U.S. Supreme Court on January 27, 2020, the Department of Homeland Security can now implement their new rule relating to the “public charge” ground of inadmissibility.


Public charge has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation but the new rule dramatically changes the standard by which DHS determines whether an applicant for adjustment of status or admission is “likely at any time to become a public charge” and therefore inadmissible to the United States. Under the new rule at 8 CFR 212.21(a), USCIS removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives or is likely to receive one or more of the specified public benefit, for more than 12 months in the aggregate within any 36-month period.


Who is Affected:


Not all immigrants are subject to the public charge ground of inadmissibility – only those seeking admission to the United States or applying for a green card based on a petition filed by a U.S. citizen or permanent resident family member are subject to public charge. A smaller subjection is subject to the new rule as it applies to those who submit applications to adjust their status in the United States. If an individual is found to be inadmissible, they will be denied admission as lawful permanent resident and placed into deportation proceedings.


U.S. families are now discouraged from going through the immigration system to obtain lawful status for their noncitizen spouses because an essential hardline rule of Financial Sponsor earning 125% of the Federal Poverty Level has been replaced with a discretionary totality of the circumstances standard that may result in their family member being deported rather than secure lawful status.



Consequences of the Rule:


Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”


The term “likely at any time to become a public charge” has been redefined in three important ways. First, instead of being applied to those who might become “primarily dependent” on a designated list of state and federal programs, it is to be applied to those who are more likely than not to receive any of these benefits for more than 12 months in the aggregate within any 26-month period.


Second, DHS has expanded the list of identified programs that can be considered when applying the public charge “totality of the circumstances” test. Prior to the regulation becoming final, the agency could only consider receipt of three cash assistance programs – Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance – as well as Medicaid program that covers institutionalization for long-term care. The new rule adds five new programs: non-emergency Medicaid; Supplemental Nutrition and Assistance Program (SNAP); Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing.


Third, in determining public charge inadmissibility, the new rule shifts attention away from the petitioning sponsor’s income and re-directs it to five factors: the applicant’s age, health, family status, assets/resources/financial status, and education/skills. This new multi-factor test will leave substantial discretion to adjudicators and could produce inconsistent and unpredictable decision-making.


It is likely that the new rule will prove burdensome for the public and DHS alike. It requires that applicants subject to public charge determinations prepare and submit an additional new, 17 pages, Form I-944, Declaration of Self-Sufficiency, with their applications. USCIS’s review of hundreds of thousands of these new forms each year will further slow the agency’s already severely delayed case processing.


Additionally, the new rule has already evidenced a chilling effect on public health concerns. A recent Urban Health Institute Study found that about 14% of adults in immigrant families disclosed that they or a family member opted not to participate in a non-cash public benefit program in 2018 due to concern over jeopardizing their green card eligibility. This new rule will deter even greater numbers of individuals from obtaining vital medical assistance and meeting other basic needs, even when receipt of the benefits in question is not penalized under the rule.



Timeline of Implementation:


Except for in the State of Illinois, USCIS will only apply the new rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. The new rule will consider an individual’s application for, certification or approval to receive, or receipt of certain non-cash public benefits after February 24, 2020, when deciding whether the applicant is likely at any time to become a public charge. Similarly, the new rule prohibits DHS from considering the receipt of public benefits for extension of stay and change of status will only consider public benefits received after February 24, 2020. USCIS will post updated forms and submission instructions on the USCIS website during the week of February 3, 2020.



Conclusion:


The new rule creates “heavily weighted” factors, both negative and positive. It is a heavily weighted negative factor to receive more than 12 months of public benefits in the aggregate over the 36-month period of time before submitting the application for adjustment or admission. Heavily weighted positive factors include having a household income of at least 250% of the federal poverty level. It is not clear how immigration officers will decide cases that have a number of heavily weighed positive and negative factors, as no one factor should be determinative. Seeking the advice of an experienced immigration attorney to analyze this new multi factor test public charge test for family-based immigration matters is strongly advised.







Cover photo: Helloquence via Unsplash

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