Who is NOT subject to the Public Charge Rule?

As discussed in previous blog posts, the Public Charge Rule does not apply to applications for Immigrant visas that are filed overseas at U.S. Consulates. Those applicants continue to be subject to the standards set forth in the FAM (Foreign Affairs Manual) and are required to file the Form DS-5540 Public Charge Questionnaire.

In addition to Immigrants who are processing for green cards overseas, there are several other classes of applicants who are not subject to the Public Charge Rule because they are either exempt under the law or are allowed to file a Waiver of public charge determinations. According to the Public Charge Rule, these classes are:

• Refugees;
• Asylees;
• Amerasian Immigrants;
• Afghan and Iraqi special visa interpreters;
• Cuban and Haitian entrants under section 202 of the Immigration Reform and Control Act of 1986;
• Applicants under the Cuban Adjustment Act;
• Applicants under the Nicaraguan Adjustment and Central American Relief Act;
• Applicants under the Haitian Refugee Immigration Fairness Act of 1998;
• Special immigrant juveniles;
• Applicants for Temporary Protected Status;
• U-Visa Petitioners and U Nonimmigrants Applying to Adjust Status;
• T-Visa Applicants and T Nonimmigrants Applying to Adjust Status; and
• Most self-petitioners under the Violence Against Women Act (VAWA)

In addition to these exempt classes, the Public Charge Rule also creates three exemptions for applicants who have received public benefits:

1. Medicaid Enrollment Applicants: This exemption excludes applicants who have received Emergency Medicaid, Services provided under the Individuals with Disabilities Education Act, School-based services, Benefits received by applicants under 21 years of age; and Benefits received by pregnant women.
2. Benefits received by Military Families. This exclusion exempts applicants who were in U.S. military services when they received public benefits OR who were in the military service at the time of filing or adjudication of their application for immigration benefits. It should be noted that this exemption applies to applicants who were in the military service AND applicants who are the spouse or minor child of someone who was a member of the U.S. military.
3. Child Applicants who will acquire Citizenship. This exclusion exempts children who will automatically acquire U.S. citizenship under Section 320 of the Immigration and Nationality Act. In other words, this exclusion applies to lawful permanent resident children (both biological and adopted) who are residing in the U.S. with at least one U.S. citizen parent.

Before automatically assuming that you are subject to the Public Charge Rule because you are applying for adjustment of status, it is recommended that you first check to see if you may be covered by an exception or exclusion to the Rule.

If you have any questions about whether you are subject to the Public Charge Rule, contact U.S. Immigration Lawyer Sean D. Hummel to schedule a consultation. In addition to having practiced Immigration Law for over 25 years, Attorney Hummel is well versed on the details and requirements of the Public Charge Rule and is prepared to guide you through the maze of new requirements and documentation that must be produced in order to qualify under the new standards of adjudication.