• S.K. Burt Law, P.A.

The Public Charge Regulation and Its Effect on Immigration

Over the summer, you may have heard the term “public charge” all over the news. It became a hot topic when the Department of Homeland Security (DHS) announced a proposed regulation which would greatly affect applicants for Adjustment of Status (Green Cards) and Visas. After publishing a final regulation in August, DHS announced that the new public charge rule would take effect on October 15, 2019. Shortly after the announcement, the regulation was challenged in courts across several states. As a result, several injunctions were imposed against the implementation of the new regulation and DHS was unable to put it into effect. Nevertheless, the injunctions were short-lived and on Monday, January 27, 2020 the Supreme Court of the United States ruled in a 5-4 decision to stop the injunction and to allow DHS to implement the new regulation.


What is the “public charge” rule?

The public charge regulation was implemented by the United States government to identify people that rely on government assistance as their main method of support. If the government determines that a person is likely to become a public charge “at any time,” it can deny a person admission to the U.S. or Lawful Permanent Residence. The new rule identifies the method in which both the Department of Homeland Security and the Department of State (DOS) are to interpret and implement the public charge ground of inadmissibility. The controversy lies here; there were significant changes made to this rule which broadens the impact on the immigrant community, principally those of low-income households.


Under the new rule, the term “Public Charge” has been redefined to “an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that,…receipt of two benefits in one month counts as two months).” Thus, when a person is seeking a visa or green card, an immigration officer will assess several factors to determine whether that person is more likely than not to become a public charge in the future. Among the factors to be assessed include:

  • The applicant’s age;

  • Health;

  • Family status;

  • Assets,

  • Resources and financial status;

  • Education and skills; and

  • Any affidavit of financial support submitted on the person’s behalf.

In addition to these factors, the officer will also look at whether the applicant benefits from any of the following government assistance programs:

  • Supplemental Security Income;

  • Temporary Assistance for Needy Families (Welfare);

  • State and Local Cash Assistance;

  • Medicaid with a few exceptions;

  • Supplemental Nutrition Assistance Program (food Stamps); and

  • Federal Public Housing/ Section 8.

It is important to note that benefiting from government programs may carry a heavy negative weight against an applicant’s case. However, it is an immigration officer’s responsibility to consider all of these factors in the totality of the circumstances, or as a whole, to make their decision.


Finally, the new public charge rule creates a “public charge bond.” If an immigration officer finds that a person is likely to become a public charge, they may be required to pay a minimum of $8,100 for admission to the United States. However, not everyone is permitted to post a bond and it is only offered through DHS discretion.


Who is affected by the public charge rule of inadmissibility?

There are primarily two groups of people that will be affected by this regulation: (1) those who apply for adjustment of status to become Lawful Permanent Resident’s; and (2) those that apply for admission to the United States (by visa or green card) through consular processing. In addition, lawful permanent residents that leave the United States for 180 days or more, may be subject to the public charge determination upon re-entry. Although this rule applies to a significant amount of people, there are several immigrants that are exempt from the public charge determination, such as: refugees, asylees, T or U visa applicants or holders, VAWA self-petitioners, special immigrant juveniles, and other immigrant groups.


If you are thinking about applying for your green card or a visa, you may be subject to the new public charge regulation which takes effect on February 24, 2020. If you have any questions about this post or other immigration matters, we would love to help you at S.K. Burt Law, P.A. Please feel free to give us a call at (407) 308-2936.


SOURCES:

Federal Register Vol. 84, No. 157--Department of Homeland Security

The SCOTUS Blog

Protecting Immigrant Families

Politico News

Boundless-Public Charge Rule Explained


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