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“Public Charge” Takes on New Meaning

USCIS publishes new public charge rule that will likely have a negative effect on green card applicants.

This week, the U.S. Department of Homeland Security (DHS) published a final rule that redefines the public charge grounds for inadmissibility. The term “public charge” is used to describe individuals applying for admission to the U.S. or adjustment of status who are considered likely to become a burden on society. The new rule is set to go into effect on October 15, 2019, and may affect somewhere between 60-80% of green card applicants. Lawsuits have already been filed challenging the lawfulness of the new rule and seeking restraining orders to stop the new rule from going into effect.

What was the old public charge rule?

The current rule defines public charge as an individual who is likely to become primarily dependent on the government for support, meaning that they rely on cash assistance programs for income support or government funded long-term care. Immigration officers currently consider whether applicants have used these benefits in the past, which include welfare (TANF) and SSI (Supplemental Security Income). Under existing policy, the use of housing and nutrition programs or publicly-funded health care is not considered.

What has changed?

Under the new rule, any intending immigrant who received public benefits for more than a total of 12 months within a 36-month period has a heavily weighted negative factor against their application for permanent residence, and may be considered a public charge. Benefits considered for public charge determinations now include Medicaid, the Supplemental Nutrition Assistance Program (SNAP/Food Stamps), Section 8 housing assistance, federally subsidized housing, and any form of federal, state, or local cash assistance.

The following are not public benefits under the new rule:

  • Medicaid for those under 21;
  • Medicaid for pregnant individuals (including 60 days after giving birth);
  • Medicaid under the Individuals with Disabilities Education Act;
  • Emergency medical care or disaster relief;
  • Members of the U.S. armed forces (and their spouses and children) who are enrolled in benefits programs;
  • National school lunch programs;
  • Student loans or mortgage loans; and
  • Food pantries or homeless shelters.

Only benefits received directly by immigrants will be considered, so U.S. Citizen family members who receive benefits are not considered.   Also, some immigrants, such as those granted asylum and refugees, are exempt from the public charge rules.

Immigration officers may also consider lack of proficiency in the English language to be a negative factor, and English proficiency to be a positive factor. Additionally, an individual’s medical conditions can weigh negatively against their applications, especially if they will likely require extensive medical treatment, are unable to work, and will likely be uninsured. The rule will still consider an applicant’s entire circumstance, including examining their financial status, size of family, age, education, skills, and employment status.

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The long awaited “state-side” waiver has arrived!

In January 2013, the Department of Homeland Security published a rule for how certain undocumented relatives of U.S. citizens apply for a waiver of the time they were in the U.S. without permission. The new state-side waiver rule will result in significantly shorter periods of family separation by allowing a green card applicant to apply for and receive an approved waiver before leaving the U.S. for the consular interview.  As a result, the time that the applicant for permanent residence will have to spend outside the U.S. could be shortened to as little as a week. However, not all foreign nationals who have a U.S. citizen immediate relative (spouse, parent, child over 21 years of age) will benefit from this rule.

To be eligible for the new waiver, an individual must meet the following criteria:

  • Be physically present in the U.S.;
  • At least 17 years of age at the time of filing;
  • Have an approved immigrant visa petition as the immediate relative of a U.S. citizen;
  • Have an immigrant visa case pending with the U.S. Department of State;
  • Be inadmissible based on unlawful presence in the United States;
  • Meet all of the requirements of the provisional unlawful presence waiver.

It is important to note that the program is only available when there is hardship to a U.S. citizen spouse or parent, not a lawful permanent resident spouse or parent. An individual may become eligible for the program even if they are in removal proceedings if they are able to successfully petition the government to administratively close their removal proceedings and they meet the other eligibility requirements.

Individuals are not eligible for an unlawful presence waivers if they meet the following criteria:

  • The eligibility requirements have not been met;
  • Have a pending application to adjust status to permanent resident;
  • Are in removal proceedings that have not been administratively closed or re-calendared;
  • Have been ordered removed, excluded, or deported from the U.S. or are subject to reinstatement of a prior removal order;
  • DOS acted to schedule your immigrant visa interview prior to January 3, 2013;
  • Have not proven extreme hardship to a U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion;
  • USCIS has reason to believe that DOS may find you inadmissible for grounds other than unlawful presence.

Immigration will begin accepting applications for the new waivers on March 4.

 

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