A recent podcast by our west coast colleague attorney John Khosravi brought up a very insightful point that is worth repeating. As we previously discussed, the new public charge rules go into effect October 15 of this year. The rule is extraordinarily complex and well over several hundred pages. Much of the media attention has focused on the expansion of what types of programs constitute public benefits. There is understandable fear that aspiring immigrants may be deterred from applying for benefits which they desperately need out of fear that their immigration cases will be jeopardized. What has not been emphasized, however, is perhaps even more significant than what additional programs will be considered: namely, the number of factors that an officer may consider when determining whether an individual may be a public charge, and hence, ineligible for permanent residence. These include:
· Age
· Education
· Proficiency with English
· Health
· Family Size
· Skills
· Financial Status
These factors in and of themselves may seem perfectly legitimate things to evaluate. However, consider the ramifications if officers abuse the wide latitude of discretion that they are now accorded with. As Attorney Khosravi points out, countless numbers of immediate relative cases involving parents-who are prime beneficiaries of “chain migration”-may be denied under this ground of inadmissibility without a single law being passed. Many foreign born parents of US Citizens are not fluent in English; have little formal schooling; do not intend to seek employment; and/or may have health complications. Any of these issues may trigger further scrutiny by an officer and result in a Request for Evidence, or worse, a possible denial if an officer is not satisfied that the individual will be self-sufficient or that sufficient safeguards will be in place to obviate the need for him/her to apply for financial help from the government.
Since USCIS’s new policy is to place out-of-status individuals into removal proceedings if their adjustment of status applications are denied, the stakes are incredibly high. Also, given that this is a new policy, there will inevitably be many cases where officers are applying unreasonably strict standards or not following the rules uniformly. This is certainly not a time where people would want to serve as guinea pigs. Therefore, strong consideration should be given to filing adjustment of status cases before the new public charge rule goes into effect, especially if the applicant/beneficiary is an older person with marginal English skills or health complications. Any applications filed before October 15, 2019 will be adjudicated under the current public charge standard as it exists today.
The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.