On August 12, 2019, the United States Department of Homeland Security (DHS) published a final “public charge” rule for inspection which will dramatically expand the discretionary authority of DHS to deny immigrants green cards and admission to the U.S. based upon their income levels and their past use of certain government benefits. While DHS claims that the rule will ensure that immigrants are self-sufficient and can rely on their own capabilities and resources, the reality is that this public charge rule will serve as a bar to many otherwise eligible immigrants and will have the effect of discriminating based upon (low) income and (low) socio-economic status. The rule was released on August 14, 2019, and is scheduled to take effect 60 days later, on October 15, 2019.
The final rule amends DHS regulations by prescribing how DHS will determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The final rule addresses U.S. Citizenship and Immigration Services (USCIS) authority to permit an alien to submit a public charge bond in the context of adjustment of status applications. The rule also makes nonimmigrant aliens who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status.
DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). The rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.
The regulation also excludes from the public benefits definition: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for aliens under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.
This rule also makes certain nonimmigrant aliens in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits are obtaining the nonimmigrant status they seek to extend or from which they seek to change.
Notably, the new public charge rule does NOT apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles, T nonimmigrants, U nonimmigrants, or victims of domestic violence who self-petition under VAWA.
This rule also explains how USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.
Note that the new public charge rule will only be applied to future applications and petitions that are filed on or after the effective date of October 15, 2019. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on prior Guidance, which has been in effect since 1999.
This rule is another brick in the “invisible wall” that has been erected by the Trump Administration and the end result is that it grants additional broad discretionary powers to USCIS adjudicators to deny applications for immigrants and non-immigrants. Ultimately, this rule will wind up discriminating against low-income earners and it will have the effect of punishing individuals and families who received public benefits in their time of need. When the rule is fully implemented, it may prevent large numbers of hard-working and law-abiding people who are already in the U.S. from obtaining green cards or from extending or changing their non-immigrant status.
If you have questions about the new public charge rule and whether it may apply to you, contact South Florida Immigration Lawyer Sean D. Hummel at sean@hummelaw.com or (954) 385-3111 to schedule a consultation.
