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New Public Charge Rule

>>> Read our Frequently Asked Questions about the new Public Charge Rule here. <<< 

Beginning on October 15, 2019, USCIS will change the meaning of "public charge" when considering applications for legal permanent residence filed within the United States-a process known as adjustment of status. Under immigration law, an applicant may be denied legal permanent residence if he or she is likely to become a public charge.

Under the new rule, a public charge means someone who is likely to receive certain public benefits for more than one year within a three-year period. The new guidelines list certain public benefits, some which are not considered currently, which include:

  • Federal, state or local government cash benefit programs for income maintenance
  • Certain federal government housing assistance (Sections 8 and 9)
  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Supplemental Nutrition Assistance Program (SNAP)
  • Medicaid, with certain exceptions, such as for emergency medical attention, benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy).

Permanent residence may be denied if the officer believes the applicant will receive any of the benefits above. Importantly, the past use of these benefits alone is not enough for the officer to find that a person is a public charge. The final rule makes clear that different factors must be considered to determine if the applicant is likely to become a public charge. A sufficient affidavit of support by a sponsor will no longer be enough to avoid a public charge finding. Instead, the officer must review the factors to see if the applicant will be able to rely on himself or herself, including the applicant's age, health, family status, education and skills. Let's take a closer look at them:

  • Age. An applicant is of working age (18-61) and able to find a job is considered a positive factor under the guidelines.
  • Health. An applicant with a medical condition that requires extensive treatment may be required to show evidence of private health insurance or ability to pay medical costs.
  • Family status. An officer may consider the size of the family or household and their financial contributions and assets.
  • Education and skills. An officer may consider if the applicant can maintain lawful employment based on his or her education, experience, and skill level, including English proficiency. (The English language factor is being challenged in court.)
  • Financial status. The applicant's own financial situation, including his or her assets, resources, and credit history may guide the officer in determining public charge. A new form is being created for this purpose. It is not published yet, but it appears to be lengthy and require extensive financial information.

Additionally, USCIS may consider significant factors (referred to as "heavily weighted" factors" under the guidelines) that will weigh heavily in favor, or against, a finding of public charge. These special factors include:

  • Significant negative factors:
    • Applicant who is not a full-time student and is authorized to work, but is unable to demonstrate employment or prospect of employment.
    • Applicant who has received or been approved to receive one or more public benefits for more than one year within a three-year period.
    • Applicant who has a medical condition that requires extensive care but is uninsured and unlikely to pay the medical costs.
  • Significant positive factors:
    • Applicant (if authorized to work) or household members combined bring in a substantial amount of income (or have assets) above the federal poverty guidelines.
    • Applicant has private health insurance.

The public charge rule does not apply to certain immigrants, including individuals with U visas (victims of crime), VAWA petitions (domestic violence), or refugees/asylees. For more information on who is exempted or excluded from the public charge rule, visit our Frequently Asked Questions page.

It is important to know that the rule does not affect the applicant if the applicant's family members are receiving public assistance, such as food stamps or other assistance for the children. It will only affect the applicant if he or she is listed as a beneficiary of the public benefit. The new rule should not prevent your family from seeking important public assistance, especially medical help, for which they are eligible.

Applications for adjustment of status filed before the October 15, 2019 will not be subject to the new rule. We recommend that clients file their paperwork prior to this date if there are any concerns about the family's financial status or reliance on public assistance.

Please note that there are several lawsuits in process that can suspend or eliminate the new public charge rule. Be sure to stay on top of developments by downloading our App-Lawpilot Guardian- by texting GUARDIAN to 55588 or by following us through social media.

If you have any questions about public charge and how it might affect your case, please see our Frequently Asked Questions page, or call us to schedule a consultation to speak to one of our experienced immigration attorneys.

>>> Read our Frequently Asked Questions about the new Public Charge Rule here. <<<

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