The rule was issued after the Department of Homeland Security changed their interpretation of the Immigration and Nationality Act (INA) pertaining to inadmissibility of individuals seeking to gain admission to the United States or an adjustment of status if they are likely to become a public charge. It also, theoretically, may apply to legal permanent residents who seek entrance to the US after having been continuously abroad for a period greater than 180 days. The INA rule itself does not change in that it allows immigration officers to deny a green card or certain visas if the individual is likely to become primarily dependent on government support. Primary dependence refers to any reliance on cash-aid for income support or long-term care paid for by the government.
Under the new rule, the test for whether someone is likely at any point to be a public charge will change, by altering the definition of who qualifies as a “public charge.” Under the old analysis, immigration officials would review and potentially deny rights to an individual only if they were likely to become “primarily dependent” on the government for income support. However, under the new rule, a public charge is defined as a person who receives any number of public benefits for more than an aggregate of 12 months over any 36-month period of time. Moreover, each benefit used counts towards the 12-month calculation. Therefore if an individual receives two different benefits in one month - that counts as two-months of used benefits.
The new rule also expands the list of programs which immigration officials may consider when determining whether an individual may be a public charge. Under the new rule, Medicaid, food stamps, Section 8 housing and federally subsidized housing can be used to determine that a green card or visa applicant is inadmissible under the public charge ground.
With that being said, even under the new rule benefits received by family members of the undocumented person will still not be considered in the public charge determination. Moreover, Medicaid received by a person under 21 or by a person who is pregnant will not count. Lastly, emergency medical care and disaster relief will also not count towards a public charge determination.
It is important to note that receipt of public benefits is not the only factor used in determining whether someone may be a public charge. There are also other factors that will be considered under the new rule such as financial status, familial size, age, education, skills and current employment are all also considered. Whether the undocumented person speaks English is also seen as a positive towards a determination while a lack of English speaking is seen as a negative.
Once the new rule goes into effect, it will mainly impact those seeking permanent resident status through family member petitions. Thus, speaking with an attorney who is experienced in immigration matters will greatly improve your chances of gaining legal status. Because the rule is slated to go into effect on October 15, 2019, all pending adjustment of status cases that are postmarked before October 15, 2019 will be adjudicated under the current standards. Therefore, it is important to speak to an experienced immigration attorney as soon as possible.
The lawyers at Bretz & Coven, LLP are experienced in handling various immigration matters, including family member petitions. For more information or to schedule a consultation
at our New York City or New Jersey law office, call (212) 267-2555.