On January 27, 2020, the U.S. Supreme Court ruled in favor of the Trump administration’s legal arguments defending its new “public charge” rule (PCR). The court ruled 5-4, allowing U.S. Department of Homeland Security (DHS) officials to enforce the regulation. The 4 liberal justices ruled against the public charge rule, while the conservative justices ruled for it. The PCR applied nationwide, except in Illinois. However, as of February 21, 2020, it also applies to Illinois residents.
Which Forms Are Affected?
New versions of certain applications and forms has been implemented, as required under the rule.
Forms affected include:
- Form I-129 – Petition for Nonimmigrant Worker
- Form I-485 – Application to Register Permanent Residence
- Form I-539 – Application to Extend/Change Nonimmigrant Status
- Form I-864 – Affidavit of Support
- Form I-944 – Declaration of Self Sufficiency (18 pgs.) and Form I-945 – Public Charge Bond (11 pgs.).
What Is a Public Charge?
According to U.S. Citizenship and Immigration Services (USCIS), a “public charge” is “an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.” This is a prospective (future-looking) analysis, and several factors are considered when making a “public charge” determination.
The Immigration and Nationality Act (INA) Section 212(a)(4) states that an individual applying for an immigrant visa abroad or their permanent residency (a/k/a Green Card) in the United States should not be allowed to do so if the individual “is likely at any time to become a public charge." If an individual is deemed a “public charge,” they are legally “inadmissible” and thus not allowed to enter the United States as an immigrant or obtain legal permanent residence.
New Rules in the Public Charge Rule
While one form or another of the public charge doctrine has been in place for generations, in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) expanded its applicability. The new PCR goes further by asking applicants to disclose how much money they have, whether they speak English and if they have previously received any public benefits, among other information. Proponents of the measure say that the new rule calls for “self-sufficient” immigrants, while opponents believe that the rule will ultimately harm low-income immigrants and immigrants from developing countries.
But what specific provisions are in the new PCR?
- The new rules redefine a “public charge” as someone who is likely to receive any number of public benefits for longer than 12 months in the aggregate over any 36-month period of time. Each benefit received counts toward the 12-month calculus. For example, if someone is likely to use two different benefits in one month, that amounts to two months’ worth of benefits;
- Under the new rules, federally-funded Medicaid, Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground;
- Just as before, all use of cash assistance, including any state or local cash assistance program (i.e. not just TANF and SSI), can render an individual inadmissible under the new PCR. However, benefits received by an immigrant’s family members will not be considered in the public charge determination. Moreover, Medicaid received by applicants under 21, while pregnant (and up to 60 days after a pregnancy), or for emergency services are not considered; and
- The new PCR denotes that such factors as the applicant’s age, health, household size, education, employment, financial resources, credit score, and whether the person has access to private health insurance may also be considered.
Applicant’s for adjustment of status may be able to pay a bond to overcome the government’s public charge inadmissibility determination. That process, however, is discretionary, with the minimum bond amount set at $8,100.00. At U.S. consulates abroad, there may also be an opportunity to submit a bond as a way to overcome a public charge inadmissibility finding.
Needless to say, this is a seismic shift in U.S. immigration policy with the potential to adversely affect the lives of hundreds of thousands, if not millions, of people for years to come.
We will continue to fight the Good Fight, as America is made great by the likes of our clients.