We have noticed conflicting information regarding the recent proposed changes to the existing public charge inadmissibility grounds. To read the actual notice published on October 10, 2018, the Notice of Proposed Rulemaking, from United States Citizenship & Immigration Services (USCIS), please click here. We hope this article will clarify the key questions our clients ask us regarding the current public charge policy, the proposed public charge rule, and how the changes may affect their applications, requests, and motions for adjustment of status.
A “public charge” is a person who may become dependent on government handouts based on a number of factors, such as whether the person has already received government assistance.
The government determines whether or not an alien will become a Public Charge by considering the following:
For immigration purposes, “public charge” applies when USCIS has to determine an alien’s admissibility, which can happen in two situations:
The “public charge” inadmissibility does not apply for naturalization purposes (citizenship applications).
Here are a few key factors that count toward whether an alien is considered a public charge:
USCIS outlines the following non-cash programs as supplemental to your existing income, and therefore do not count towards making an alien a “public charge”:
Cash benefits that you earned also do not count towards public charge. Examples of earned cash benefits include social security benefits, unemployment benefits, government pensions, and veterans’ benefits.
USCIS states that the public charge inadmissibility grounds do not apply to everyone and that certain groups may be allowed to enter or adjust status despite falling under the “public charge” determination. These groups include:
The current regulations for determining whether an alien in removal proceedings is a public charge are more strict. The Board of Immigration Appeals (BIA) has determined that inadmissibility based on public charge is based on the “totality of the alien’s [financial] circumstances at the time of […] application.”
In addition, aliens in removal proceedings can be ruled as public charges if any of the following circumstances apply:
The impact of the proposed rule is twofold:
For any non-immigrant alien who is already in the U.S. and who may be considered a “potential public charge”, the proposed changes will disallow any extension of stay in the same visa category, hinder them from changing to another non-immigrant visa classification, and prevent them from adjusting their status (green cards).
The new proposed rule is less relaxed when it comes to the receipt of benefits.
First, it counts “easily monetized” non-cash benefits as cash benefits, which means it will include SNAP/food stamps, rental assistance, and Section 8 vouchers among others.
Second, it limits the total amount of cash benefits a household can receive within 12 consecutive months to 15% of the Federal Poverty Guidelines. For example, in 2018 15 percent in a household of one is $1,821, so if an alien were to receive more than $1,821 in a year, then that alien would fall under “public charge” and be ineligible for adjustment of status or admission.
Third, regarding non-cash benefits that are not “easily monetized”, such as Medi-cal or Public Housing, the new rule limits the number of months to 12 in a 36 month period (non-cumulative). This means that if an alien has Medi-cal for more than one year within a three year period, they would be considered inadmissible and ineligible on the grounds of public charge.
Fourth, the proposed rule introduces a new standard, which is the combination of benefits. If an alien is likely to receive a cash or “easily monetizable non-cash benefit” in addition to a non-cash benefit for a period of 9 months or longer, then the alien is automatically considered a public charge.
Finally, the new proposed rule will carefully consider the affidavit of support (I-864) when required in an alien’s application.
The proposed rule does not affect the benefits of dependents or other household members. Any cash benefit for the alien’s dependents would not count towards the alien’s household income.
Certain benefits are also not considered, such as Head Start, national school lunch programs, foster care and adoption, emergency medical assistance, and disaster relief.
USCIS states that the following “weigh heavily” in finding an alien is likely to become a public charge:
To prove that you are not at risk of becoming a public charge, you can prove that you have sufficient financial assets, resources, and support amounting to at least 250% of the Federal Poverty Guidelines for your household size.
Alternatively, you can prove that you are currently working and have an annual income of at least 250% of the Federal Poverty Guidelines for your household size.
For your reference, for a household of two, say husband and wife, the alien would have to earn at least $41,150 (individual, not combined income). For a household of four, say husband and wife with two kids, the alien would have to earn at least $62,750. For a family of six, say husband and wife and one set of grandparents, the alien would have to earn at least $84,350.
The new rule is still “proposed” (and not “final”), and will be published in the federal registry by the end of the year. After which, it will be open for “comment” for 60 days. It is possible that adjustments will be made to the rule, or that it will not pass.
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