Public Charge Rule for GCs, Transfers, Extensions – H1B, H4, L1 Impact

The USCIS, DHS rule titled “Inadmissibility on Public Charge Grounds”, popularly known as “the Public Charge Rule” is one of the biggest changes to US legal immigration in many years. It is officially published today, Aug 14th 2019,  in Federal Register as final rule by USCIS. The rule will be in effect from October 15th, […]


The USCIS, DHS
rule titled “Inadmissibility on Public Charge Grounds”, popularly known as “the
Public Charge Rule” is one of the biggest changes to US legal
immigration in many years. It is officially published today, Aug 14th 2019,  in Federal Register as final rule by
USCIS. The rule will be in effect from October 15th, 2019. The final
rule document is a massive 837-page document, formatted to fit in 217 pages in
federal register. There were 266,077 comments from public for the proposed rule…

The rule impacts
a lot of US visa categories and green card (GC) seekers. We will focus on the general
basics of “Public Charge Rule”, its significance, how they will determine, if
someone will likely be a public charge, exclusions & exemptions, key factors
that are considered for determination, if someone is likely to be a public
charge and how it will impact H1B, H4, and L1 visa holders, including Green
Card seekers. At the end we will also have FAQs clarifying common questions.

Why is Public Charge Rule a big deal? What is its significance in US Immigration History ?

It is estimated by
US Govt. that this new rule would impact a population of about 382,264 annually
to be reviewed under this new rule…It is also estimated that the new public charge
rule would save about $2.47 Billion Dollars annually in public benefits…Migration Policy Institute estimates that the new income requirement would have denied about 56% (2.3 Million ) of family
based green card applicants that were issued in last 5 years. Also, immigration
firm Boundless estimates, it could impact over 50% or 200,000 marriage based
green cards given every year. It also will have serious effects on the diversity
of immigrants in US.

What is the general “Public Charge Rule” in US ?  What is the background ? Is it fully new ?

Public charge rule
is not new, it has been there in the US since 1880s. There were some revisions
done over the years. The general background of public charge rule is that anyone
planning to move to America as permanent resident or get green card should not be
primarily dependent on Government benefits for their livelihood in the US. The
public charge rule basically wants people moving to US be self-sufficient and they
do not become “public charge” or “burden to the US tax payers or US Govt”.  The logic is that immigrants planning to settle
in US cannot just become burden by using the US Government programs like food
stamps, Medicare, housing benefits, etc. and they need to be self-sufficient. In
fact, there are sponsor affidavits (legal contract) in place today for family
sponsored green cards categories to make sure the moving family members do not
become a public charge.

What is the New “Public Charge Rule” ? General scope of New “Public Charge” ?

Over the years, the
applicability of the public charge rule has been changing with government policies.
Since Trump Administration took office, they haven pushing many immigration
related changes that came from Buy American, Hire
American EO
, Many H1B Visa related changes,
etc. Similarly, in January 2018, the US consular posts also implemented revised
guidelines to ensure Visa officers assess the applicants, if they would become
a “Public Charge” for issuance of visas. Read Public Charge Rules at FAM State.gov.

USCIS says that
the statue related to ‘public charge’ does not clearly define what is meant by “public
benefit” and “public charge” to determine, if foreigners living in US or
planning to get green cards would be considered as public charge.  They say that the ‘new public charge rule’ that
is published now defines more precisely ‘public benefits’ and ‘public charge’, for
assessment to determine if someone would likely become a public charge and
exceptions for the same. 

What is a ‘Public Benefit’ ?   When does it become a ‘Public Charge’ ?

Below is general
scope that USCIS will consider as ‘public benefit’ used by an individual.

  • General Assistance programs or any of the cash assistance
    programs for income maintenance from federal, state, local or tribal.
  • Supplemental Social Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Food Stamps, also called as Supplemental Nutrition
    Assistance program(SNAP)
  • Medicaid that is Funded by Federal with some exceptions.
  • Public Housing programs, Section 8 Housing Assistance,
    Section 8 project based rental assistance

If anyone, unless
exempted, uses any of the above public benefits for more than 12 months in aggregate
within a 36-month period, they will be considered as “public charge” and
inadmissible on public charge grounds. If they use two benefits in a month,
that is treated as 2 months and added towards the total 12 months aggregate.

Which Individuals does the Public Charge rule apply to ? Direct Recipients only ?

Unless, they are
exempted by US Congress, below are the various categories of individuals that
public charge rule will apply:

  • Foreigners seeking Non-immigrant Visas (H1B, H4, L1,
    etc.) or Immigrant visas outside of US
  • Foreigners seeking to do adjustment of status to Lawful
    Permanent Resident (Green Card) within US.
  • Not all, but some green card holders, when they return
    from abroad may fall under this rule based on their certain circumstances.

Only the direct recipients
of the benefits are considered for the public charge rule, who used them for
their own benefit. Meaning, if someone in your family receives benefits, those
benefits apply only to them and does not apply to you for determining public
charge inadmissibility.  Also, it does
not apply to anyone such as guardians, who are receiving benefits on someone
else behalf, including someone using power of attorney.

What benefits are excluded ? Who else are exempted from the Public Charge Rule ?

Exceptions to
the above public charge rule are below categories and individuals:

  • Individuals Serving in US Armed Forces, active duty
    or in reserve, including their spouses and children.
  • Applicants that are exempted by Congress such as
    refugees, asylum applicants, etc.
  • Adopted Children who will get US citizenship.
  • Any Medicaid received for emergency medical conditions
    or under Disabilities Act, including Medicaid benefits received by anyone under
    21 years of age. Also, Medicaid benefits received by any woman in 60 days
    period from the last day of the pregnancy.
  • School based services or benefits for students until
    secondary education.

Requirement of Bond, if someone is determined as Public Charge

 USCIS says that to determine if someone would
become ‘Public Charge’ is prospective ( happens in future) and they will
consider the overall situation and circumstances of the individuals.  Also, with USCIS discretion, they may request
a foreigner to submit a minimum bond of $8,100 (can be higher based on case)
and allow them to file for adjustment of status, though they were determined as
inadmissible based on public charge grounds.

How does USCIS determine, if someone would be a potential Public Charge in Future ?

USCIS says that
they will look at the benefits used by individuals and review them against the 12
month aggregate benefits in last 36 months. In addition, they also will look at
the below factors to determine, if they could “likely become a public charge at
anytime in the future”. They will give weightage to below factors as positive
or negative and determine, if someone could be a public charge in future.

  • Age, Health, Family Status of the individual
    • Example, if age is between
      18 and 61, it is a positive factor, if it is less than 18 or over 61, it is a negative
      factor
  • Assets that individuals hold, their resources,
    financial status
  • Education and Skills of the individual
  • Seeking immigration status, their duration of
    admission
  • Affidavit of Support Form I-864, where required
    based on the application.

What factors have heavy weightage to determine potential Public Charge in Future?

USCIS says that
they will look at the individual situation and determine the factors based on
their conditions. Below are some examples.

  • Authorized to work, but not employed: If someone is authorized to work, but not employed or do not show any employment history or prospects for getting employment, then that individual would be considered a potential for public charge in future.
  • Severe Medical Condition, No private insurance : If someone has got a serious medical condition and needs extensive treatment, they cannot work with their condition and they do not have option to buy private insurance or have resources to pay for the medical costs related to their medical condition, they would be considered as likely to become a public charge.
  • Household Income – 250% of Federal Poverty Line : If the individual does not have  annual income and assets of least 250% of the Federal Poverty Guidelines for their household size, they are considered a potential for public charge in future. For a family of four, it is about $62,000. So, if you make less than $62,000 a year and have four people in you family, then you are considered inadmissible under public charge.
  • Private health Insurance, Affordable Care Act Premium Tax Credits : In general, due to the complexities of the Affordable care Act (ACA) or Obamacare, DHS has decided to classify ACA as not a public benefit, so will NOT count for public charge determination directly. They do clarify saying that individual having private health insurance will have heavy positive factor weightage in the determination of the public charge on the overall application. Check Clarification in Federal Register
  • History of Public Charge: If the individual has any history of inadmissibility or deported based on public charge grounds determined by immigration judge or immigration appeals board.

Now that we understand
the new public charge rule, it’s importance, what it means and who all does it
apply to and how USCIS determines if someone could become a public charge in future,
let’s look at the impact for temporary work visa holders such as H1B, L1 and
their dependents on H4, L2 visas.

Impact of Public Charge Rule for H1B, H4, L1, L2 Visa Holders ? Applicability of 250% FPL ?

On a very high
level, the impact for work visas holders such as H1B Visa or L1 Visa, including H4 Dependent Visa is very minimal. The reason is that most of these work visa holders arrive in
US with a job and have enough income to support their family and also get
employer’s private insurance in most cases, except few. With the new Public
Charge rule, USCIS would like to ensure that the temporary work visa holders and
their dependents do not become a public charge as well. So, they have added requirements
that work visa holders and their dependents applying for extensions, transfers
& change of status will be subject to the public charge rule review.

All the applicants who file form I-129 for H1B, L1 for extensions, transfers or COS, and their dependents either H4, F1 or L2 holder using form I-539 Form for extensions or COS will be subject to the public charge review. See below screenshot.

Public Charge rule applicability for H1B - L1 - and H4 Visa Holders

Impact of Public Charge Rule for H1B, H4, L1 and L2 visa holders – Key Takeaways :

  • New I-129 and I-539 Forms with Questions on receipt of Public Benefits : USCIS mentioned that the forms I-129 that is used for H1B, L1 and I-539 used by H4 and L2 holders for extensions and Change of status will have new questions that are related to receipt of public benefits. It will impact all the H1B, H4 and L1, L2 filings from October 15th. The H1B, H4 or L1, L2 holders need to prove that they have not used the public benefits for over 12 months in a 36 month period. Also, they may need to file form I-944, called as “Declaration of Self-Sufficiency” to prove that they do not become public charge as well.  If using I-539A form,  that is used by I-539 co-applicants they need to answer related questions for the same.
  • Small Businesses with H1B using Affordable Care Act Premium Tax Credits  : If you work for a small business or startup on H1B or L1 and leveraging the premium tax credits by Obamacare/ Affordable Care Act(ACA) or any subsidies related to the same, then you would not directly be counted towards the public charge. Due to the complexities of the ACA, DHS has decided to classify ACA as not a public benefit. Having said that, they clarified that Private Health Insurance would be treated as a positive factor in assessing the overall application for public charge. The positive factor of private insurance would not apply, if you are using any of the subsidies like premium tax credits. See below screenshots :Affordable Care Act and Public Charge Applicability for H1B holdersPremium Tax Credits- Obamacare - Impact for Public Charge Rule
  • No need to establish 125 % or 250% of Federal Poverty line: DHS clarified as responses to comments that the income level requirements  of 125% or 250% of FPL ( Federal Poverty Line) is not applicable to non-immigrant extensions, which is H1B, H4, L1, and L2 visa holders in our context. See below screenshot. They will primarily look at only the public benefits used by the non-immigrant visa holders in the last 36 months to determine, if they have been a public charge. Non-immigrant Extensions Rule of 125 or 250 wage level not applicable
  • Need to file form I-944 for Adjustment of Status (form I-485) :  The green card applicants like H1B visa, L1 visa holders, etc., who would file for adjustment of status using form I-485 need to file the form I-944, “Declaration of Self-Sufficiency”. The details in the form will be used to determine, if the applicant would become a public charge in future.
  • Concern of Form I-944 – Tax payments, insurance, Credit info, etc. : Some H1B, L1, comments expressed concern that I-944 form requires that you submit many personal details related to medical, tax, finances that employers should not always know… USCIS mentioned that it is required to file all the details, if asked and failure to provide will result in denials.

Frequently Asked Questions (FAQs) on Public Charge Rule:

Does in-state tuition paid fall under benefit for Public Charge ?

No, USCIS does not talk about in-state tuition as a benefit for public charge. They do mention in comments that anything that is not listed as a public benefit in the definition section does not constitute a public benefit and cannot be used for public charge determination.

Does Primary, Secondary Education in Public Schools count for Public Charge ?

No. Any education or public schools related benefits like attending primary or secondary school education does not count for the public charge determination.

Does past usage of Premium Tax Credits, Subsides count for Public Charge?

No. Premium tax Credits or subsides related to Obamacare are not a public benefit, so do not count for public charge. But, having a private insurance will be a big positive factor for overall public charge determination. If you are using premium tax credits or any subsidies in the past, which is before October 15, 2019, they will not count or even in future as well, they do not count. But, if you stop using them and get private insurance by October 15th, it will weight in for positive factor.

Does Scholarships in Universities count for Public Charge ?

No, USCIS does not talk about scholarships and classify it as public benefit, so will not count towards public charge determination.

H4 or L2 EAD Holder Not working count as public Charge ?

No. There is no explicit mention of H4 or L2 EADs not working as public charge.

Is H4 EAD holder working as IHSS provider counted for Public Charge ?

No, USCIS does list In-Home Supportive Services (IHSS) provider as a public benefit, so it does not constitute as a public benefit to be counted for public charge determination.

Huge Emergency Hospital Bill – Waiver in past, does it count as public charge ?

No. Any emergency hospital expenses waiver or Medicare does not count towards public charge. Example, if you had got $10,000 waiver for $15,000 hospital bill, then it is not counted for public charge.

Does State Disability Insurance (SDI) benefits from State for Maternity and Paternity leave count for public charge ?

No. SDI related benefits like maternity, paternity leaves are not listed as public benefit in the new rule, so will not count towards the public charge determination

Does federal rebates and state refunds for electric car purchases count towards public charge?

No, they are not listed as public benefit or weighing factor. So, they do not count towards public charge.

I got laid off on H4 EAD and getting unemployment insurance and doing certification course with the help of TAA , TRA. Does it count for public charge ?

No. The unemployment insurance is not listed as public benefit, so it will not count towards public charge. Read below one for overall guidance.

How do I know, if my subsidy, insurance or tax credits is not a public charge ?

USCIS has given clear guidance that, if a benefit is not listed explicitly in the rule, then it is not classified as public benefit and will not count towards the public charge determination. So, don’t sweat too much on this. See below screenshot. DHS final rule on public benefits that are not listed as public charge

When will the public charge bill go into effect ?

October 15th, 2019. Any application that is post marked, meaning received by USICIS on or after October 15th, fall under the new USCIS rules for Public Charge.

From when will the public benefits be counted to determine public charge ?

Only public benefits used from October 15, 2019 will be counted towards determination of public charge. Applicability of Public Charge Rule for Benefits before October 15th 2019

Will public charge rule add more delays to H1B, H4, L1, other visas ?

Yes, it will very likely add more delays to the current processing times. Because, the adjudicator has to review the application, if there was any public benefit used and will count towards public charge. Also, as needed they may also require form I-944 “Declaration of Self-Sufficiency, which could even lead to more delays as that is a more comprehensive form.

Will the Public Charge Rule face any legal challenges in Court ?

Yes. There are many national level immigration agencies that are already considering brining this public charge rule to court and put a hold on this. We will need to see, how it will all pan out and how Govt will defend. It is also possible that there could be temporary hold, too early to tell.

That’s about it
folks…What do you think of the Public Charge Bill ? How else do you think, it will impact ? Add your comments, thoughts.

References :  Federal Register – Inadmissibility on Public Charge Grounds , Public Charge Rule – Official Public Inspection PDF File (above screenshots from this file)

 

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