The Trump administration plans to publish a rule that effectively penalizes intending immigrants for any public benefits they or their children have received. This applies even if the children are United States citizens who are legally entitled to receive them. There is no new rule in effect now, but the government is considering making changes for the future. Who will be affected by the proposed rule? The proposal applies to most immigrants applying for lawful permanent residence or an immigrant visa. The rule does not apply to lawful permanent residents who are applying for citizenship. The rule does not apply to certain applicants for adjustment of status such as those applying under:
- T visa or U visa;
- Special Immigrant Juveniles;
- Cuban Adjustment Act;
- Other limited categories.
Nonimmigrants applying for a change of status or an extension of stay will also be subject to the new standard. As part of the application, they will need to prove that they are not receiving nor are likely to receive public benefits. What is the proposed rule? The proposed rule directs USCIS officers to evaluate the intending immigrant’s current financial situation to determine whether they can support themselves or whether they are likely to become a public charge. USCIS’ proposed standard would involve weighing both positive and negative financial considerations. USCIS officers will evaluate the intending immigrants’ estimated income, job history, job skills, health status, age, assets, and any family history of receiving public benefits. An applicant would be inadmissible based on public charge if he or she “is likely at any time to use or receive one or more public benefits.” What public benefits will be considered a negative factor? The following benefit programs received by the applicant or a dependent family member during the last 3 years would be a negative factor:
- Obamacare (Subsidized health insurance under the Affordable Care Act);
- Medicaid (non-emergency services);
- Food stamps, SNAP (Supplemental Nutrition Assistance Program);
- CHIP or SCHIP (State Child Health Insurance Program);
- WIC (Special Supplemental Nutrition Program for Women, Infants, and Children);
- Housing assistance;
- Energy benefits;
- Earned Income Tax Credit (when it exceeds tax liability).
What public benefits do not affect the application?
- Unemployment benefits;
- Worker’s compensation;
- Medicare benefits, unless the premiums are partially or fully paid by a government agency;
- Disability benefits
- In-state college tuition
- Subsidized or unsubsidized government loans that require repayment
What other factors will USCIS consider? The applicant will be evaluated for their (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills. The proposed rule will introduce a new form requiring the applicant’s employment history, education and training, current and prior income, credit scores, bankruptcies, any offers of employment, health conditions that would affect employability, enrollment in unsubsidized health insurance, and assets or resources. For example, an individual who previously requested public benefits may be able to establish that he or she sought the benefits for a short time period while unemployed but that he or she is currently working and has sufficient income and longer requires such public benefits. Negative factors that would affect the applicant: USCIS considers these “heavily weighted negative factor” against the applicant if he or she:
- Is of employable age, authorized to work, but currently unemployed;
- Has no employment history or reasonable prospect of future employment;
- Is currently receiving public benefits;
- Has received public benefits for more than six months during the last 3 years;
- Has a costly medical condition and has no unsubsidized health insurance or other apparent means of paying the costs of treatment, or
- Has a spouse or parent who is the principal beneficiary and who has been found inadmissible based on public charge.
Positive factors that would favor the applicant: USCIS considers these “heavily weighted positive factors” if the applicant:
- Is a healthy person of employable age with financial assets, resources, and support of at least 250% of the Federal Poverty Guidelines, or
- Is authorized to work, is gainfully employed, and has an income of at least 250 %of the federal guidelines
What if my case is denied? Applicants who are initially refused based on public charge or who are determined likely to become a public charge may be offered the opportunity to post a public charge bond of at least $10,000. However, the bond will be considered breached if the immigrant receives any of the cash (SSI, TANF, or state general assistance) or non-cash programs identified above. Is it safe to continue to receive public benefits today? News of the proposed rule has many concerned parents wondering if they should stop seeking benefits for themselves or their U.S. citizen children even though the children qualify. Because of the harsh proposals, many fear that they may not be able to legalize their own immigration status in the future. The proposed rule considers the use of public benefits received on or after the effective date of the final rule. However, those who have received public benefits within 3 years of the application for adjustment will be negatively affected as well. The important thing to remember is that the proposed rule has not been published and is not in effect. When the rule is is released, there will surely be legal challenges against it and it may take months or years to become effective. Those who are legally entitled to benefits should think about and the health and safety of their family as a priority. Remember, the new rule contains many factors besides public benefits. If the rule is finalized, you may be able to overcome the public charge with other positive factors. Because the rule is not final, it is too soon to know the full consequences. We will update this blog as the topic develops. However, if you have a pending adjustment of status or immigrant visa case, and you are receiving public benefits, it is in your best interest to finalize the application before the rule takes effect.