Applications postmarked (or submitted electronically) on or after October 15, 2019 will be subject to the new public charge rule which was recently published by the Department of Homeland Security.
The Immigration and Nationality Act (INA) authorizes the denial of admission to the United States or an adjustment of status application if the individual “is likely at any time to become a public charge.” Since 1999, USCIS defines “public charge”as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”
For Employment-Based immigrants, who must prove that they won’t become a “public charge”?
- Nonimmigrant visa applicants at consulates (such as B-1, E visas, F-1, H-1B, H-4, L-1, L-2, O-1, O-3, TN, TD, etc.)
- Nonimmigrants entering the United States (such as B-1, E visas, F-1, H-1B, H-4, L-1, L-2, O-1, O-3, TN, TD, etc.)
- Nonimmigrants applying for Adjustment of Status (EB-1, EB-2, and EB-3 green card applicants filing an I-485)
- New: Nonimmigrants applying for an extension of change of status in the United States (those filing an I-129 or I-539 with USCIS). Expect to see a revised I-129 and I-539 form adding new questions about receipt of public benefits.
- Some green card holders (such as those returning from a trip abroad of more than 180 days)
What Public Benefits can make Employment-Based immigrants inadmissible?
The receipt of any of the following public benefits for more than 12 months in the aggregate in any 36-month period:
- Any federal, state, local, or tribal cash assistance for income maintenance
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
- Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
- Section 8 Housing Assistance under the Housing Choice Voucher Program
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
- Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
- Federally funded Medicaid (with certain exclusions)
Although a duration of more than 12 months is normally necessary to lead to a finding of inadmissibility, USCIS/Department of State has the discretion to consider any duration (and amount) of public benefits received in the totality of the circumstances.
USCIS/Department of State will also look into how likely a person is to receive these benefits in the future. For this, they will look at the applicant’s:
- Family status;
- Assets, resources, and financial status;
- Education and skills;
- Prospective immigration status;
- Expected period of admission
Is there anything an Employment-Based immigrant can do to avoid a potential denial on the likelihood of becoming a public charge in the future?
- Possess household income, assets, and resources of at least 250% of the Federal Poverty Guidelines your household size. For a family of 4, this would be $64,374 under the current guidelines.
- Maintain work authorization and employment with an annual income of at least 250% of the Federal Poverty Guidelines for a household of your household size.
- Maintain private health insurance appropriate for the expected period of admission, so long as you do not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.
Federal Poverty Guidelines can be found at https://www.uscis.gov/i-864p
What Benefits will not be taken into consideration?
- The receipt of Medicaid for the treatment of an emergency medical condition;
- Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
- School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;
- Medicaid benefits received by an alien under 21 years of age;
- Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.
- Benefits not received directly by the applicant for the applicant’s own benefit. In other words, DHS will not consider public benefits received on behalf of another or benefits received by one or more members of the applicant’s household.
Although there is much fanfare over this new regulation, the real impact on most Employment-Based immigrants is likely to be small. In addition, thirteen states have already challenged this regulation, claiming in federal court yesterday that it is inconsistent with the Immigration and Nationality Act.