DHS and the Change to Public Charge

On October 10, 2018, the Trump administration proposed a rule via the Department of Homeland Security that will change what constitutes  a “public charge.” Receipt and usage of certain types of Medicare and Medicaid, food stamps, public or government-subsidized housing, and certain cash assistance programs will have an effect on an intending immigrant’s residency application. The proposed rule would affect cases handled by the U.S. Citizenship and Immigration Services (USCIS), but a similar policy is already being applied by the Department of State at its embassies and consulates.

The Immigration and Nationality Act (INA) states that any non-citizen applying for admission as an immigrant or adjustment of status, who is likely to become a public charge, is inadmissible. There are several factors in play, including the intending immigrant’s age, health, assets, education, and skills. DHS’s proposed rule will drastically change the categories of those who may fall into the public charge ground, making it more difficult to qualify for permanent residency and potentially limiting  the options for intending immigrants already applying to enter the United States as immigrants.

Those who are affected by the proposed rule may include:

" individuals seeking admission to the United States from abroad on immigrant or non-immigrants visas, individuals seeking to adjust their status to that of lawful permanent residents from within the United States, and individuals within the United States who hold a temporary visa and seek to either extend their stay in the same non-immigrant classification or to change their status to a different non-immigrant classification."

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The Department of State has already implemented a similar policy. Beginning in January 2018, embassies and consulates handling immigrant visas began implementing the newly revised Field Affairs Manual (FAM) policies regarding the public charge ground. The relevant policy states that a consular officer must, “in every case,” consider the intending immigrant’s age, health, family status, assets, resources, financial status, education, and skills.

The general concern throughout the United States regarding this change in policy is the effect that this proposed rule would have on non-citizens, causing these individuals to seek support by other means. The proposed change will affect non-citizens nationwide seeking many different types of immigration benefits, including asylees and DACA recipients. The proposed rule would require a new Form be submitted in all adjustment of status cases, known as the proposed Form I-944, to help prove that the applicant will not become a public charge.

For intending immigrants undergoing immigrant visa interviews abroad, there is growing concern that the Department of State’s new policy will cause extreme delays and force applicants to remain outside the United States for long periods of time. This is because a public charge finding will require a waiver of inadmissibility. This may catch an applicant by surprise if they were unaware of the new public charge policy. Applicants may now need to submit even more evidence in their case. If an officer finds an applicant to be a public charge, the applicant will not be granted a visa.

You can find more information about  the proposed change here. You can find the current Department of State policy here.

If you are concerned or worried about the new change DHS and the Trump administration is proposing regarding the public charge, do not hesitate to reach out to Ibrahim Law Office, an immigration law firm, to schedule a consultation for yourself or a loved one.