BREAKING DOWN DHS’S NEW FINAL RULE ON PUBLIC CHARGES

 
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On Monday, August 12, 2019, the Department of Homeland Security (“DHS”) announced that it would be publishing its new rule on “public charge” inadmissibility. DHS first proposed the rule in October 2018. DHS says that the rule will not go into effect until October 15, 2019. The rule will create significant changes to the permanent residency and immigration process. It is worth noting that the rule should only apply for applicants seeking immigrant visas or adjustment of status, and should not apply to all visa types or applications with U.S. Citizenship and Immigration Services (“USCIS.”)

The Public Charge

The current immigration law is known as the Immigration and Nationality Act (“INA.”) INA Section 212 covers numerous grounds of what is known as “inadmissibility.” A potential immigrant, i.e. a green card or immigrant visa applicant, cannot be inadmissible to the United States. Otherwise, the applicant may require a waiver to overcome his inadmissibility, if one is available in the relevant category.

INA Section 212(a)(4) covers the “public charge” ground of inadmissibility. A public charge is a person who relies mostly on the government for financial support. The new rule will  redefine the rule, in its application, to a potential immigrant’s case. It also changes much of how DHS and USCIS shall interpret the existing law. This article will help break down the new rule, then go over a handful of talking points and takeaways.

DHS’s New Rules

First, the new public charge rule expands the list of public benefits types and programs that DHS may use in determining whether someone is a public charge. These include, but are not limited to:

  • Supplemental Security Income (SSI);

  • Temporary Assistance for Needy Families (TANF);

  • Any Federal, State or local cash benefit programs (i.e., general assistance);

  • Supplemental Nutrition Assistance Program (SNAP) and food stamps;

  • Section 8 Housing Assistance;

  • Section 8 Project-Based Rental Assistance;

  • Medicaid (with certain exceptions);

  • Public Housing in certain cases

Next, the new rule defines someone as such if he receives public benefits for more than an aggregate of 12 months over any 36-month period of time. Each individual public benefit the applicant has used or uses counts toward the calculation, so using two different benefits in one month will count as two months for purposes of the public charge calculation. The new rule also allows officers to consider English language proficiency; potential immigrants who speak English will get a “positive” factor in the analysis, whereas those who do not speak English will get a “negative” factor in the public charge analysis. Medical conditions and the applicant’s access to private health insurance are also positive/negative factors.

The new rule will require certain USCIS applicants to file a new form, Form I-944, with their applications. DHS officials may also impose a bond to be paid by the applicant if the officer believes that the individual is inadmissible based on being a public charge. Bonds will be discretionary, and the rule states that certain factors will make the applicant ineligible for bond, and therefore inadmissible and unable to obtain their permanent residency.

Practical Analysis of DHS’s New Rule

The new rule will not be retrospective, only prospective, considering public benefits received and used from October 15, 2019 and onward. This means that public benefits that an immigrant received in the past should not count against them through the new rule, although the old rule still applies for such cases.

The new rule demands that DHS officers analyze a potential immigrant’s work history. The new rule gives significant leeway to a primary caregiver for a child or person with a disability. This should mean that stay-at-home parents or caretakers who are not employed and are not working because they are tied down to helping their loved one should get some benefit of the doubt from DHS.

Credit scores will now be a mandatory part of permanent residency applications, according to the new rule. The rule states that DHS should weigh the applicant’s:

Credit history and credit score in the United States, and other evidence of the alien’s liabilities not reflected in the credit history and credit score (e.g., any mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt)…

The applicant will also have to provide DHS with three years of tax transcripts. One last pointer is that a potential immigrant should not be deemed a public charge if one of their loved ones or household members have received public benefits, unless the potential immigrant is specifically listed as a beneficiary of the benefit.

 

There is much to be learned about the new public charge rule. It is still to be seen how DHS applies the rule to potential immigrants and applicants. Contact Ibrahim Law Office, an immigration law firm, if you have any questions about the new public charge rule and how it may impact your or a loved one’s case.