The New Public Charge Rules

The New Public Charge Rul…

By Susan E. Hill

On August 14, 2019 DHS published its final rule on “public charge,” increasing its scrutiny of the financial status of most people seeking lawful status from inside the U.S. Here is the important information:

What is “public charge?” This is a person who will rely on public benefits in the future. In other words, to be allowed immigration status in the U.S., you must prove you will remain financially self-sufficient and not go on welfare and other assistance.

Who is affected by this rule? Most people filing an application inside the U.S. with the Department of Homeland Security, to receive a lawful immigration status. This includes Adjustment of Status I-485 (green card), Extension or Change of Nonimmigrant Status (I-129), and anyone else seeking an immigration status with DHS. It will not apply to humanitarian relief, such as refugees, asylees, Special Immigrant Juveniles (SIJs), T visas for victims of human trafficking, U visas for victims of qualifying criminal activity, or victims of domestic violence (VAWA self-petitioners), among others.

What must I prove? You must prove it is more likely than not that you will be self-sufficient, which means it is your burden to bring up this issue and submit your evidence, rather than wait for DHS to ask you for it. You will not be given the benefit of the doubt if your evidence is unclear. For Adjustment of Status applicants (green card), you must file new Form I-944 with your application. This form asks for extensive financial and background information about you and your household, and requires credit reports, tax transcripts and many other types of evidence.

How is this rule different from current law? It allows the government to be much more aggressive and deny applications in discretion. For family green cards, currently the “public charge” concern is erased with the sponsor filing a mandatory Affidavit of Support, promising to pay back the government if the immigrant goes on welfare/public benefits. Now that promise is not enough and the immigrant also must disclose detailed information about the likelihood of their financial stability in the future.

Effective date: October 15, 2019 – applications filed on this date forward will be subject to the higher scrutiny, and must submit extra evidence on public charge (see below).

New factors for consideration: Your age, health, family status, education and skills, assets and resources, financial status and whether you received public benefits in the past for more than 12 months in the aggregate.

What counts as public benefits? They are defined as:

  1. Any federal, state, local or tribal cash assistance for income maintenance, such as:
  2. Social Security Income (SSI)
  3. Temporary Assistance for Needy Families (TANF, or “welfare”)
  4. Other federal, state or local government General Assistance cash payments for income maintenance
  5. Supplemental Nutrition Assistance Program (SNAP or Food Stamps)
  6. Section 8 housing (Housing Choice Voucher Program and Rental Assistance)
  7. Medicaid received after age 21 (pregnancy Medicaid does not count)
  8. Public housing

What does not count as public benefits? Unemployment benefits, worker’s comp, accident insurance payments, Medicaid received when you were under the age of 21, pregnancy Medicaid up until the baby is 60 days old.

What time period counts if I received public benefits in the past? If you received anything before October 15, 2019 it will not harm you. For anything you receive after October 15, 2019, DHS will look at the last 36 months before you file your application. Then it will total up each public benefit you received per month. You cannot have more than an aggregate of 12 monthly benefits total during that 3-year period. If you received two separate benefits in one month, such as SNAP and TANF, then that is 2 monthly benefits which will both count toward that maximum of 12 total.

What if my family members received the public benefits? Your household family members’ benefits do not count toward your own maximum limit of 12. However, DHS will take it into consideration and balance it against all the other factors.

What if I am applying outside the U.S. at a consulate? The Department of State is in charge of consulate cases, and it does not yet have a similar rule. However, it is anticipated that they will adopt a similar rule soon.

Is anyone challenging this new rule? Yes, lawsuits have already been filed.

Take action now to get your case on file before October 15th, or you will be working very hard to meet the new requirements.

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