Last week witnessed the release of the much-dreaded final rule pertaining to the public charge ground of inadmissibility. To say that the new policy is a drastic reworking of the current practice is an understatement. The policy changes not only significantly expand the contours of what is considered a public charge but potentially arm adjudicators with additional tools to deny individuals seeking admission into the US. Since the Department of State has already implemented its own draconian public charge regulations, these new changes primarily affect people who are applying for family-based admission in the US, notably adjustment of status applicants. It also impacts certain non-immigrants requesting a change or extension of stay in the US.
The doctrine of public charge essentially states that an individual may be determined to be inadmissible to the US based on his/her likelihood of becoming primarily dependent on the government for support. This has traditionally been interpreted to mean cash aid (ie., welfare) or long-term institutionalized care. Under the new policy, public benefits has been expanded to include such government programs as Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs, such as Section 8 assistance. Furthermore, anyone who has received one or more of the designated public benefits for more than 12 months, in the aggregate, within any 36-month period will presumptively be considered a public charge.
Additionally, in determining whether an individual may be a public charge, officers will be afforded authority to evaluate a wide variety of factors including the applicant’s financial status; size of family; age; education; skills and employment; English proficiency; medical conditions and availability of private health insurance; and past use of immigration fee waivers. Applicants for green cards will be required to submit an extraordinarily arcane Declaration of Self-Sufficiency, which from early drafts looks very intimidating.
All of these new factors point towards a devaluing and diminishment of the Affidavit of Support, which in practical terms, is “black and white” and up to now, generally dispositive of the issue. The new policy will not apply to certain categories of people including those applying for humanitarian based programs for refugees, asylees, Special Immigrant Juveniles, certain trafficking victims (T nonimmigrants), victims of qualifying crimes (U visa applicants) or victims of domestic violence (VAWA). The rule also excludes public benefits received by people serving in active duty or in the Ready Reserve of the US Armed Forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring US citizenship; Medicaid for individuals under 21 and pregnant women; Medicaid for school based services; and Medicaid for emergency medical services. Also, and very importantly, the use of benefits by family members (ie., children) will not be counted against the immigrant applicant.
It is important to note that these new changes are scheduled to go into effect October 15, 2019. Adjustment of status applications filed before that date will be adjudicated under the current public charge rule.