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USCIS Implements “Public Charge” Rule – Impact on Immigrant Families will be Severe

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In furtherance of the Administration’s anti-immigrant agenda, United States Citizenship and Immigration Services (“USCIS”) has implemented a new rule that will make it more difficult for eligible immigrants from middle- and lower-income families to gain U.S. permanent residence. The new rule – referred to as the “Public Charge” rule – broadens the existing financial requirements for family-sponsored immigrants by imposing burdensome hurdles which will disqualify otherwise-eligible immigrants from coming to the U.S.

As of February 24, 2020, USCIS can deny applications for eligible immigrants seeking admission to the U.S., applying for adjustment of status, or extensions or changes of non-immigrant status if the government determines that the person could be a burden on the government, called a “public charge”. It is important to note that “public charge” has been in existence for over 100 years and, before this new rule, regulations required immigrant sponsors to provide an Affidavit of Financial Support to take financial responsibility for their sponsored family member (spouse, parent, child, sibling). The new process takes this obligation to another level by imposing requirements designed to discourage family-based immigration.

Under the new test, immigration officers in the U.S. and consular officers abroad will have broad and subjective authority to determine if – under a “totality of the circumstances” test – an immigrant will ever become a “public charge.” If a public charge determination is made, then an eligible immigrant – meaning the parent of a U.S. citizen, the child or spouse of a U.S. citizen or eligible siblings – can be refused admission to the U.S., Contrary to the very policy underlying U.S. immigration law for more than 50 years, these new steps will cause hardship to U.S. citizen families.

The new rules now require – in addition to an Affidavit of Financial Support from the sponsor – an 18-page Declaration of Self-sufficiency (Form I-944) signed by the sponsored person which the adjudicating officer in the U.S. will use to determine whether the sponsored person is likely to need public assistance now or in the future. The I-944 includes questions on the sponsored person’s education and employment history, his/her English language ability, his/her income, assets, liabilities, bankruptcies and credit history. A similar procedure exists for those applying for Immigrant Visas at Embassies and Consulates abroad.

Some applicants for permanent residence including victims of crime and trafficking, religious workers, asylees and refugees, Special Immigrant Juveniles and a number of other categories are not subject to the “public charge” requirement and will not be required to file the I-944.

As to eligible immigrants subject to the “public charge” requirement, past receipt of certain public benefits will trigger a determination of inadmissibility. Not all public benefits will trigger the “public charge” determination. Those that will trigger a determination include receipt of:

• Temporary Assistance for Need Families (TANF)
• Supplemental Social Security (SSI),
• Supplemental Nutrition Assistance Program (SNAP/Food Stamps)
• Housing Assistance, including Section 8 vouchers or Rental Assistance
• Federally funded Medicaid (with certain exclusions)

Government benefits received by applicants who are in the active duty military or their souses or children and children who are eligible for automatic citizenship will not be considered. USCIS will also not consider benefits received by family members, student grants and loans, medicaid benefits for applicants under 21 years old and benefits received by pregnant women and during the 60-days after a birth and health insurance under the Affordable Care Act, among other benefits. The “public charge” rule will also not apply to government benefits received prior to February 24, 2020.

Eligible immigrants who have received the listed government benefits will not automatically be deemed inadmissible. Instead, if a public charge determination is made, then USCIS will evaluate whether an immigrant is likely to become a “public charge” based on a “totality of circumstances” test. The test will consider a number of factors including the applicant’s age, health, family status, assets, liabilities, credit history, health insurance, education and skills. These factors can be categorized as either heavily weighted negative factors, or heavily weighted positive factors.

Heavily weighed negative factors include factors such as a poor employment record, receipt of public benefits for more than 12 months during a 36-month period, a significant medical condition combined with a lack of private health insurance, and a previous finding of inadmissability under public charge grounds, among other factors.

Heavily weighted positive factors include factors such as having a household income above the federal poverty threshold, high levels of education and/or employable skills, health insurance coverage and good employment record. Under the new rule, adjudicators and consular officials will consider the positive and negative factors and assess under a “totality of the circumstances” test whether an applicant is likely become a public charge.

Quite deliberately, the new policy takes aim at persons from poorer countries and from less-advantaged and less-affluent backgrounds. The policy punishes eligible immigrants – close family members of U.S. citizens and lawful permanent residents – who have faced financial hardship. The new policy hurts U.S. citizen families and is a transparent effort by restrictionists in the Trump Administration like White House advisor Stephen Miller to curtail immigration from the developing world..

For more information about the “public charge” rule click here. To discuss eligibility for lawful permanent residence and the new “public charge” requirements, contact us.

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