When does the New Public Charge Rule take effect?

Adjustment of Status Applications filed on or after Monday, February 24, 2020 will be subject to the new rule.

Is this a new rule?

No, public charge determinations have been part of immigration law since 1882. However, this new rule is more restrictive than in the past and requires that a totality of the circumstances test be applied to make a prospective, forward-looking determination of whether Intending Immigrants are likely to become public charges at any time after admission to the United States.

Who is subject to the new rule?

All applicants for adjustment of status are subject to this New Rule except for the following:

  • Refugees

  • Asylees

  • U Visa Applicants

  • VAWA Applicants

  • Special immigrant juveniles

  • T Visa Applicants

  • Applicants under the following acts: Cuban Adjustment Act, Nicaraguan Adjustment and Central American Relief Act, Haitian Refugee Immigration Fairness Act, and Cuban and Haitian Entrants

  • Amerasian immigrants

  • Afghan and Iraqi special interpreters

How is this determination of public charge made?

USCIS will look at each case individually and apply a two-fold test. The first is whether the Intending Immigrant has in the past received a qualifying public benefit and the second is whether at any time in the future the Intending Immigrant is likely to receive a public benefit.

What public benefits are covered by the inquiry?

If an Intending Immigrant has received any of the following benefits for 12 months out of a 36-month period, that person is inadmissible as a public charge:

1.      Supplemental Security Income (SSI)

2.      Temporary Assistance for Needy Families (TANF)

3.      Any other federal, state or local cash benefit programs (i.e., general assistance)

4.      Supplemental Nutrition Assistance Program (SNAP, i.e., food stamps)

5.      Section 8 Housing Assistance under the Housing Choice Voucher Program

6.      Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)

7.      Medicaid

8.      Public Housing under Section 9 of the U.S. Housing Act of 1937

Do any benefits not count against me?

The following programs do not indicate a public charge and are acceptable for an Intending Immigrant to receive:

1.      Emergency Medicaid

2.      Services provided under the Individuals with Disabilities Education Act

3.      School-based services

4.      Benefits received by individuals under age 21

5.      Benefits received by pregnant women

Also excluded from this prong of the rule are military families and those becoming U.S. citizens immediately upon acquisition of the Green Card.

How does the Service determine whether one is likely to become a public charge?

There are now seven (7) factors that the adjudicators must analyze in order to determine whether the Intending Immigrant is likely in the future to become a public charge.  They are:

1)  Age: Working age preferred

2)  Health: No health issues preferred

3)  Family Status: Smaller households preferred

4)  Assets, Resources, and Financial Status: Sufficient earnings and assets to support the household preferred

5)  Education and Skills: Higher education and job skills preferred

6)  Prospective Immigration Status and Expected Period of Admission: Resources sufficient for the length of stay preferred

7)  Affidavit of Support: Sufficient income and assets on behalf of the Petitioner/Sponsor

Are there any negative factors?

Yes, there are four Heavily Weighted Negative Factors that include:

1)      Failure to work despite being authorized to do so (except full-time students)

2)      Receiving, approved to receive, or certified to receive public benefits

3)      A diagnosis of a serious/chronic medical condition

4)      A previous finding of inadmissibility based on public charge grounds

If my case is not strong enough, is there anything I can do?

Yes, the Service in its discretion can ask an Intending Immigrant to post a public charge bond.  Bond amounts will be set by the Service and are a minimum of $8,100. There is a review of the appeal of the bond amount.

Does this impact any other applications?

Yes, those seeking a change of status or extension of status will not qualify for the change or extension if they have received 12 months or more of public benefits during any 36-month period while in the nonimmigrant status being extended or changed into.

What can I do to secure a Green Card for my family member?

Contact an experienced Itasca immigration attorney to help you navigate this new technical rule. This is not just an additional form to be completed. The New Public Charge Rule is a complicated determination of your loved one’s ability to remain in the United States. At Ana M. Mencini & Associates, P.C. we have been helping clients for over 15 years and can help you navigate the New Public Charge Rule. Call our office today at 630-875-1700 to schedule a confidential consultation.

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