What are the new Public Charge Rules?
Section 212(a)(4) of the Immigration and Nationality Act makes inadmissible immigrants who are “likely at any time to become a public charge”. Practically speaking, in the past, if the sponsor in the United States had sufficient income (more than the poverty level) or assets, then the immigrant successfully received the visa or adjusted status. Now, the focus will be on the immigrant him or herself.
The examiner will consider the personal circumstances of the immigrant: is it likely that he or she will become a public charge at any time in the future? The circumstances to be reviewed include age, health, family size, financial resources, education and skills, and sponsor. In short, this rule will adversely impact the elderly or soon-to-be-retired; those with medical conditions; the less educated; those with large families; those with few job prospects in the United States; those who do not speak English; and those with few financial resources. Having a joint sponsor will also have little positive impact unless there is a close family relationship with the applicant.
To Whom Do the New Rules Apply?
They will apply to those applying for immigrant visas and adjusting status to immigrants in the United States. They will also apply to nonimmigrants in the United States who are extending their current status (e.g., B visitor) and those changing status (e.g., B visitor to student). The analysis will be different for these two classes: for immigrants, the public charge analysis will be prospective (future), whereas for nonimmigrants it will be retrospective. For nonimmigrants changing or extending status, the public charge rules will be extremely limited, only applying to those who received public benefits in the past for at least 12 months out of 36 months. Form I-944 will need to be appended to their applications. For immigrants, the question will be whether it is likely that in the future the immigrant will receive public benefits for 12 months out of a 36 month period.
Who is Exempted?
Refugees, aslyees, VAWA applicants, and other special categories are exempted from these new rules. The rules also do not apply to lawful permanent residents applying for US citizenship (unless had been absent from the US for more than 180 days) or renewing their expired green cards.
What does Public Charge mean?
The term public charge is specifically tied to “public benefits”. Public benefits include food stamps, housing support (Section 8), Supplemental Security Income, some other assistance programs, and some Medicaid beneficiaries. The following are not considered “public benefits”: emergency Medicaid, benefits received by pregnant women, benefits received by those under 21, student loans and Pell Grants, worker’s compensation, unemployment benefits, Social Security, Medicare, WIC (nutrition program for women, infants, and children), child healthcare, and benefits received by immigrant’s family members already in the US.
What else is considered?
If the sponsor in the US has income at 250% of the poverty guideline, then this should shift the focus away from the applicant and satisfy the examiner. For example, if the minimum poverty guideline calls for at least $30,000 in income, if the sponsor’s annual income exceeds $75,000, this should meet the burden, unless the applicant has very severe medical conditions. In addition, if a decision is made that the applicant is inadmissible on public charge grounds, the examiner can offer the applicant the ability to put up a bond (minimum $8,100) as a guarantee, although it is expected that in visa cases this will be very rarely used.
What types of immigrants will be most affected?
Undoubtedly, older parents and siblings of US citizens will be severely impacted. Spouses of US permanent residents with limited education, English knowledge skills, and employment skills will also be targeted. Diversity Lottery winners without a university education and with limited English and employment skills are also likely to be adversely affected.
The stakes are high. For example, once an immigration petition is filed, it becomes harder to obtain a visitor visa. A failed immigrant visa case will most likely lead to the cancellation of an existing B visa and difficulty in obtaining such a visa in the future. Because of the high stakes involved, it makes sense to start planning for this public charge question at the start of the immigration process, not the end. Please contact us to discuss.