On September 22, the Department of Homeland Security promulgated new rules regarding the public charge ground of inadmissibility that may have a tremendous impact on immigrants who have accepted public benefits. Under our immigration law, most applicants for permanent residence must demonstrate that they will not become a “public charge”-that is, someone 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.” If the proposed rule is finalized without any alterations, the final rule will reach beyond cash assistance and long-term care to include health, nutrition, and housing programs as well. Some programs implicated include:
· Non-emergency Medicaid (with limited exceptions)
· Medicare Part D Low Income Subsidy
· Supplemental Nutrition Assistance Program (“SNAP”)
· Certain Public Housing, such as the Section 8 Program
Under the changes, current and past receipt of any of the above benefits will be “heavily weighed negative factors” indicative of the applicant’s inability to support him or herself, which can constitute a ground of inadmissibility. In plain language, what this essentially means is that someone who has lived in a section 8 housing area may be denied a green card, even if all other aspects of eligibility have been satisfied. If that person is undocumented or not in legal status, a denial can mushroom into graver problems, such as the initiation of removal proceedings.
Another troubling aspect of the 400-page-plus new rule is the practice of requiring public charge bonds for those deemed inadmissible due to financial reasons or health reasons. Individuals may have to post a minimum of $10,000 which would become forfeit if they accept any government benefits.
These developments mirror a similar trend started by the Department of State earlier this year when the Foreign Affairs manual was revised to incorporate stricter public charge standards. In short, meeting 125% of the federal poverty guideline level on the Affidavit of Support, will no longer be dispositive in determining the public charge issue. Officers will have more discretion to evaluate and make decisions based on an applicant’s lack of English proficiency as well as physical and mental conditions that may affect the individual’s ability to find work or look after him or herself.
The proposed rule does not apply to refugees or asylum seekers. Receipt of public benefits by individuals serving in military active duty (or the Ready Reserve, or the spouse or child of a service member) will also not be considered, nor will benefits received by aliens who victims of natural disaster.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.