The attorneys at GillespieShields practice family, employment, civil, criminal, probate, appellate, and immigration law.
Since the 1800s, the US has had immigration laws centering around self-sufficiency. The laws have stated that individuals who were unable to care for themselves without relying on government aid have always been considered inadmissible to the United States. On Feb 24, 2020, the U.S. Department of Homeland Security’s (DHS) public charge rule (officially called the Inadmissibility on Public Charge Grounds final rule) will take effect. This rule provides guidance and further clarification on how to determine whether someone applying for a green card or visa – known as Adjustment of Status (I-485)- is likely to become a public charge.
Individuals applying for green cards and visas from within the United States (US) —known as “Adjustment of Status” (I-485) will be affected by this new rule.
What is a Public Charge?
Traditionally, a “public charge” is someone “primarily dependent on the government for subsistence,” – demonstrated by either (a) using public cash assistance for income maintenance or (b) by institutionalization for long-term care at government expense, including:
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF), commonly known as “welfare”
- State and local cash assistance, sometimes called “General Assistance”
- Medicaid or other programs supporting long-term institutionalized care, such as in a nursing home or mental health institution
How will DHS Apply the New Public Charge Rule?
DHS plans to dramatically expand the definition of “public charge,” so that green card and other visa applicants could be denied for being “more likely than not” to use certain public benefits at any point in the future.
Under the new regulation, the following criteria could be used to deny green card applications from within the US:
- Prior use of certain government benefits:
- All benefits listed above (SSI, TANF, general assistance, and long-term institutional care)
- Supplemental Nutrition Assistance Program (SNAP), commonly knowns as “Food Stamps”
- Section 8 housing and rental assistance
- Federal housing subsidies
- Nonemergency Medicaid benefits (with exceptions for children under 21, people with disabilities, pregnant women, and mothers within 60 days after giving birth)
A “public charge” denial would be triggered if someone has received one or more of the above public benefits, for more than 12 months in aggregate within any 36-month period. Receipt of two benefits in one month counts as two months.
- The likelihood of future use of government benefits – determined by specific factors that immigration officers must take into account when determining whether or not a visa applicant is likely to become a “public charge” at any point in the future – factors include:
- Age: Applicants could be denied if they are younger than the minimum age for full-time employment (18), older than the minimum “early retirement age” for social security purposes (61), or otherwise at an age that impacts their “ability to work.”
- Health: Any medical condition – whether this condition could affect the applicant’s ability to work.
- Family size: Having more children or other dependents could increase the likelihood of a visa denial.
- Skills: Whether an applicant has “adequate education and skills to either obtain or maintain employment” (if authorized to work), by looking at employment history, high school degree and higher education, “occupational skills, certifications, or licenses,” and proficiency in English or other languages.
- Financial status: Credit history, credit score, and financial liabilities, plus whether the applicant has private health insurance or enough resources to cover “any reasonably foreseeable medical costs” that could interfere with work or study.
- Insufficient financial resources: Not enough personal financial resources.
DHS plans to require a new form called the “Declaration of Self-Sufficiency” (Form I-944) to accompany most applications for green cards to help immigration officers determine whether the applicant is a “public charge” under the new criteria outlined above. With this new policy, DHS plans to impose financial requirements on the applicant, not just the sponsor.
Who Would be Affected by this Policy Change?
Green card applicants applying for AOS. This includes green cards based on:
- a family relationship to a U.S. citizen or lawful permanent resident
- sponsorship by a U.S. employer (140,000 green cards granted per year)
- Temporary visa applicants
The public charge rule will not apply to visa applicants whom Congress has exempted from the public charge test, such as refugees, asylees, individuals who have experienced domestic violence, and other special categories.
Some 56% of all family-based green card applicants could be denied under the public charge rule’s unprecedented income requirement — more than the 47% at risk based on prior use of government benefits. (Source: Migration Policy Institute)
Contact an Immigration Attorney
If you have questions about how this rule might affect you and your family and you are in the great Phoenix metro area, please contact the Immigration Team at GillespieShields. The attorneys and paralegals have years of experience and are ready to help you with your case. Contact us or call us at 602-870-9700 today to set up your consultation.
The information contained on this site is not, nor is it intended to be, legal advice. You should consult an attorney for legal advice concerning your individual situation. We welcome you to contact us via phone, electronic mail, or through this website. However, contacting us does not create an attorney-client relationship. Please do not send us confidential information until such time as an attorney-client relationship is established.