If you or someone you know is thinking of applying for permanent residency or naturalization, please read this article. There is a new immigration policy involving more scrutiny and denials of applications for many immigrants for multitude of new reasons.
It could affect young and old, people with medical conditions, and more. New policies will allow Homeland Security to scrutinize and deny applications based on the applicant’s education, skills, finances, the number of children and other dependents in their family, and more.
Below, we will discuss the new immigration rule, what will change, who will be affected, effective dates, and more details to the new policy. We encourage applicants for permanent residency or naturalization to act with their case as far in advance of these new changes as possible.
UPDATE as of October 2019: In October, Federal Courts issued preliminary injunctions blocking the Department of Homeland Security’s proposed new Public Charge Rule from taking effect.
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What Is the “Public Charge” Rule?
The public charge concept was first established by Congress and is used by immigration officials in deciding whether to deny a United States visa to anyone who to is “likely to become a public charge”.
Generally, a public charge is someone that “primarily depends on the government for survival.” This can be shown by (a) use of public cash assistance for income maintenance or (b) long-term care at the government’s expense.
What Are Some Examples of Benefits That Have Been Be Considered a Public Charge?
- Supplemental Social Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- State and local cash assistance, also known as “General Assistance”
- Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution
What Would Change Under the New “Public Charge Rule”?
The Department of Homeland Security (DHS) has plans to dramatically expand the definition of “public charge,” so that current green card holders as well as other visa applicants could be denied not just for being “primarily dependent on the government for survival”, which is the current standard, but also for using “one or more public benefits” in the past or being “likely at any time” to receive such benefits in the future.
- Under the new proposal age could also possibly be a reason for denial. If and applicant is younger than the minimum age for full-time employment (18) or even older than the minimum early retirement age for social security purposes (61) or even if their age otherwise impacts their “ability to work”, the person could be considered a public charge and have their application denied.
- DHS also plans to scrutinize any medical condition and assess whether this condition could affect the applicant’s ability to work, which could potentially expand the scope of the required medical examination.
- DHS plans to also determine whether an applicant has “adequate education and skills to either obtain or maintain employment, if they are authorized to work. This will be achieved by looking at employment history, high school degree and higher education, “occupational skills, certifications, or licenses,” and ability to speak other languages.
- A visa applicant having many children or other dependents could possibly result in denial of an application.
- Lastly, DHS plans to assess an applicant’s credit history, credit score, and financial liabilities. DHS will also check to see whether the applicant has private insurance or enough resources to cover “reasonably foreseeable medical costs.”
Increased Financial Scrutiny and Requirements for Green Cards and Temporary Visas
Even if someone has never used government benefits in the past and are not likely to use them in the future their application could possibly be denied because of an entirely new requirement.
This is known as the personal financial resources. DHS plans to require a new form called the “Declaration of Self-Sufficiency” (Form I-944) to accompany most applications for green cards as well as temporary visas. This form would then be used by immigration officers to help determine whether a person would be deemed a “public charge” under the new criteria.
With this new policy DHS would impose similar financial requirements on the applicant as they do on a sponsor. The income required for the household would increase from 125% to 250% of the poverty guidelines if this policy goes into effect. If this new policy goes into effect DHS could potentially deny up to half of all marriage based green card applications.
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What Benefits Under the New Policy Would Now Be Considered When Evaluating Public Charge?
- Supplemental Social Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
- State and local cash assistance, also known as “General Assistance”
- Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution
- Supplemental Nutrition Assistance Program (SNAP) or “Food Stamps”
- Section 8 housing and rental assistance
- Federal housing subsidies
- Nonemergency Medicaid benefits (except for children under 21, people with disabilities, pregnant women, and mothers within 60 days of giving birth)
Receiving one or more of the above listed public benefits for more than 12 months within a 3-year period, would trigger a “public charge” denial. Additionally, receiving two benefits in one month would count as two months under the new policy. The new policy will not penalize green card or visa applicants for use of these benefits by a spouse or child, only those benefits which the applicant directly receives for their own benefit.
Who Would This Public Charge Policy Affect?
The new public charge policy would apply to most applications and applicants who are applying for permanent residence. This would include family-based petitions as well as employer sponsored petitions. DHS is planning on applying this new policy to people who are applying for temporary/ nonimmigrant visas, specifically when the person is trying to change or extend their current visa. This could include H-1B visa holders.
Permanent residents that are seeking naturalization may possibly affected by the policy as well. This is because even after obtaining a green card a permanent resident can be deported on public charge grounds within the first five years of obtaining their residency, if they became a public charge based on circumstances that existed before they obtained their green card
This new policy would not apply to visa applicants whom are exempt from the public charge such as, refugees, victims of domestic violence, violent crimes, trafficking and asylum seekers.
Is the New Public Charge Policy in Effect Now?
No – the current public charge policy that is followed by DHS will remain in effect until October 15, 2019, the proposed effective date. Even if the new rule is enacted, and it expands the number of government benefits that would trigger a denial of an application based on public charge grounds, it will not penalize applicants for their use of such benefits prior to the October 15, 2019. Applications and petitions postmarked or electronically submitted before the proposed effective date, will not be subject to the new public charge rule.
If you or someone you know is thinking of submitting an application for permanent residency or naturalization, it would be best to do it as far in advance of these new changes as possible.
Contact our office to schedule a consultation with an experienced immigration attorney by clicking this orange button below.
