October 31, 2018 Comments are off NIAC Staff

Public Charge FAQ

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The Trump administration is once again attempting to close the door to immigration by significantly expanding what types of public assistance preclude individuals from receiving a visa or permanent residency. These changes may significantly impact Iranians.

How is the current public charge rule applied?

Prospective immigrants have long been susceptible to inadmissibility, deportation, and preclusion from receiving permanent residency for receiving certain public benefits. When they receive a certain threshold of benefits they are determined to be a “public charge” or someone who is likely to become reliant on public benefits. Past field guidance defined a “public charge” as someone who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” However, only 3% of noncitizens use benefits like cash payments that are included in this limited definition. The Trump administration plans to dramatically expand what benefits are included.

MAIN TAKE-AWAY: If you are likely to become reliant on public benefits then your status will likely be at risk once this new rule takes effect.

What is the proposed change?

The proposed policy rejects earlier Clinton-era guidance that excludes non-cash benefits and instead defines a “public charge” as any alien who receives one or more public benefits. This means that an individual who receives benefits or is expected to receive benefits based on age, education, health, income, or education will likely be considered a public charge – and be at risk of visa denials, visa extension denials, and being precluded from permanent residence and/or citizenship – if they receive any public funds directly or indirectly and even if they are not primarily dependent on the government.

The administration justifies this definition based on a medley of case law and dictionary definitions that “generally suggest that an impoverished or ill individual who receives public benefits for a substantial component of their support and care can be reasonably viewed as being a public charge.”

The proposed policy specifically defines a public charge as anyone who receives benefits including medical care (e.g., Medicare Part D Low Income Subsidy & Medicaid except in the case of an emergency medical condition), housing (e.g., Section 8), and food (e.g., SNAP – informally known as food stamps) that exceed 15% of the Federal Poverty Guidelines (FPG) for a household of one within a period of 12 or non-monetized benefits that are received for more than 12 months within a 36-month period. The federal poverty level for a single person in a 12-month period is $12,140 and monetized benefits cannot exceed 15% of this figure which is $1,821. This is severely limiting for individuals with disabilities, students, parents, and many others. Earning less than 125% of the federal poverty level and limited education will also be applied negatively against the individual. This may have the effect of chilling benefits requests.

Will the changes be applied retroactively?

The government claims that the policy is not retroactive. In other words, you will not be held accountable for public aid received before the changes go into effect.

What common benefits will be excluded from the public charge consideration?

Common benefits that will be excluded from consideration in public charge determinations are student loans, emergency medical care, women infants and children (WIC), CHIP (Children’s Health Insurance Program, subject to change), and disaster relief.

Asylees and refugees are not subject to the public charge determinations.

Will the changes apply to the issuance and/or extension of non-immigrant visas?

Yes.

Should I drop my benefits if I am a foreign national?

The short answer is not yet. The “Inadmissibility on Public Charge Grounds” proposal will remain on the Federal Register for comments until December 10, 2018. According to USCIS’s own FAQ, the rule will be prospective (i.e. it will only apply to benefits received at the time or after its effective date, but not to past benefits). After the proposed rule is considered for public comments on the Federal Register, the DHS will issue a final rule with an effective date. So your benefits will not count against you until this final effective date; however, you should plan accordingly as there is a strong chance this rule will take effect. We will update our own FAQ as things develop. Please note that if you are a refugee or asylee the proposed rule does not apply to you.

Ultimately, each individual will have to make their own risk calculation. We understand that for some individuals their present need for assistance will be more important than long-term concerns about status. We do not think this is fair and it is for this very reason that we are opposed to the changes.

How can I express my opposition to the proposed changes?

You can express your opposition to the proposed rule by visiting this link, clicking on the “Comment Now” tab, entering your comment in the text box, and following the prompts. Do not submit the same comment or ask others to submit the same comment more than once as it will not be counted twice. Comments are being accepted through December 10, 2018.

*This document is for informational purposes only and not for the purpose of providing legal advice.*

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