WHAT IS THE “PUBLIC CHARGE” TEST?
It is a determination that is made when someone is applying to become a permanent resident and get their green card. It does not apply when applying to become a U.S. Citizen. It mostly impacts people who are immigrating through a family member. It is a prospective test and asks whether the applicant is likely to become a public charge in the future.
WHAT IS THE CURRENT SYSTEM?
Under the current rules, generally the only benefits that make you a public charge are cash benefits and long term institutional care. The focus of the determination now is whether there is a sponsor who can support the applicant. The sponsor or sponsors submit an affidavit of support. This is how someone can show they won’t become a pubic charge.
The question is can the sponsoring relative or a joint sponsor show enough income to support the applicant at or above 125% of the federal poverty guidelines (currently $32,187 per year for a family of four).
WHAT ARE THE NEW PROPOSED CHANGES?
The proposed changes include a new definition of public charge which will be defined as someone likely to use 12 months of benefits in a 36-month period. The changes also expand the types of benefits that can be used against an applicant to decide they are likely to become a pubic charge. Now non-cash benefits such as MediCal, food stamps, and subsidized housing can be considered public benefits that would deem someone a public charge. There is also a new list of positive and negative factors to be used in determining if someone is likely to become a public charge.
WHEN DO THE NEW PROPOSED CHANGES TAKE EFFECT?
While we are already seeing some changes in public charge determinations at consulates abroad, the new proposed changes for those who submit their applications for permanent residence to USCIS in the U.S. don’t take effect until October 15, 2019. This means that any application postmarked on or before 10/14/2019 will be decided under the current rules and not the new rules.
ARE ALL APPLICATIONS FILED ON OR AFTER OCTOBER 15, 2019 AFFECTED BY THIS NEW RULE?
No. Many application types are exempt from the public charge ground of inadmissibility. This includes
- U or T Visa applications or applications for residency based on U or T status
- SIJS petitions or applications for residency based on SIJS
- Asylum applications or applications for residency based on asylum
- Applications for residency based on refugee status
- VAWA self-petitions or applications for residency based on VAWA
- Naturalization applications, DACA, TPS, green card renewal or replacement applications
- Cancellation of Removal
- Other applications where no affidavit of support is needed
WHAT BENEFITS WON’T BE COUNTED AGAINST AN APPLICANT?
Benefits that shouldn’t count against an applicant are: MediCal for children under 21, Emergency MediCal, Prenatal MediCal, School services such as free lunch and Head Start, and Food stamps received by your children or other family members.
WHAT CAN HELP SOMEONE SHOW THAT THEY AREN’T LIKELY TO BECOME A PUBLIC CHARGE?
Factors that can help show that an applicant isn’t likely to become a public charge in the future include things like having private unsubsidized health insurance, having a history of working, being healthy and between the ages of 18 and 61, having a good credit score, presenting an affidavit of support showing your sponsor earns over 250% of the poverty guidelines, showing that they speak English, having education, and having close family members who can support them.
WHAT CAN LEAD USCIS TO DECIDE THAT AN APPLICANT IS LIKELY TO BECOME A PUBLIC CHARGE?
Factors that can be used to show that an applicant is likely to become a public charge include that the applicant has a work permit and is not working or cannot show a recent history of working and is not a full time student or caregiver, the applicant has received 12 months of benefits in the last 36 months, or the applicant has a medical condition or disability that will interfere with their ability to work in the future or they have a medical condition and don’t have health insurance or financial resources to pay for their medical care.
SHOULD PEOPLE PANIC?
No! But if they are eligible to file for adjustment of status before October 15th, they should make sure to do so. With lawsuits already filed, it is possible that a judge will order the new rules not to go into effect.
HAVE MORE QUESTIONS? If you are a potential applicant or petitioner, contact one of our offices and come in for a consultation. If you are a service provider who would like a presentation for your staff or clients, please reach out to one of our offices.