This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
The Department of Homeland Security (DHS) has announced that it will soon publish a controversial proposed rule that would make it much more difficult for many who have lower incomes or less education, or who have received public benefits, to become permanent residents, obtain visas, or extend or change/adjust their nonimmigrant visa status. Reportedly, rumors of the impending rule have already resulted in some immigrants in the United States dropping out of social services for fear of potential complications to their efforts to stay in the country. Currently, those who are likely to become a burden on the government can already be excluded if they accept certain cash benefits.
The proposed rule would greatly expand the definition of public benefits to be considered when public charge determinations are made. DHS explained that the public benefits proposed to be designated in this rule include:
- federal, state, local or tribal cash assistance for income maintenance,
- Temporary Assistance for Needy Families (TANF),
- Supplemental Security Income (SSI),
- Medicaid (with limited exceptions for Medicaid benefits paid for an "emergency medical condition" and for certain disability services related to education),
- Medicare Part D Low Income Subsidy,
- the Supplemental Nutrition Assistance Program (SNAP, or food stamps),
- institutionalization for long-term care at government expense,
- Section 8 Housing Choice Voucher Program,
- Section 8 Project-Based Rental Assistance and
- public housing.
The first three benefits listed above are cash benefits that are already covered under current policy, DHS said.
There are some exclusions. DHS noted that by statute, asylees, refugees and other categories of vulnerable individuals are not subject to the public charge ground of inadmissibility. When considering receipt of public benefits in the public charge inadmissibility determination, DHS would also not consider any public benefits received by those serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or the spouse or child of the service member. Additionally, DHS would not consider disaster relief, emergency medical assistance, benefits received by a person's U.S. citizen children or Medicaid benefits received by children of U.S. citizens and potential adoptive children of U.S. citizens.
Among other things, the proposed rule would also require an immigrant to earn at least 125 percent of the federal poverty guidelines, and states that a household income of 250 percent of that level would be deemed "heavily positive." Heavily weighted positive factors would include "significant income, assets, and resources." Income and financial status would be considered as part of the "totality of the circumstances." Some deemed inadmissible on public charge grounds might be allowed to pay for a public charge bond at the risk of losing it if they use any of the listed benefits. Negative considerations would include limited English proficiency and adverse physical or mental health conditions.
The proposed rule would also allow U.S. Citizenship and Immigration Services (USCIS) to consider whether an applicant is using or receiving, or likely to use or receive, public benefits. The proposed rule would impose new costs on people applying to get green cards using Form I-485 who are subject to the public charge grounds of inadmissibility. DHS would require any adjustment applicants subject to the public charge inadmissibility ground to submit new Form I-944 with their Form I-485 to demonstrate they are not likely to become a public charge.
The proposed rule would also impose additional costs for seeking extension of stay or change of status by filing Form I-129 (Petition for a Nonimmigrant Worker), Form I-129CW (Petition for a CNMI-Only Nonimmigrant Transitional Worker) or Form I-539 (Application to Extend/Change Nonimmigrant Status), as applicable. These applicants would have to demonstrate that they have not received, are not currently receiving, and are not likely in the future to receive public benefits as described. DHS noted that these applicants may also incur additional costs if the agency determines that they must submit Form I-944 in support of their applications for extension of stay or change of status. Moreover, the proposed rule would impose new costs associated with the proposed public charge bond process, including new costs for completing and filing Form I-945 (Public Charge Bond) and Form I-356 (Request for Cancellation of Public Charge Bond).
In addition to the effects on individuals, DHS said it recognizes that anticipated reductions in federal and state transfers under federal benefit programs as a result of the proposed rule may have "downstream and upstream impacts on state and local economies, large and small businesses, and individuals." For example, DHS explained, the rule might result in reduced revenues for:
- healthcare providers participating in Medicaid,
- pharmacies that provide prescriptions to participants in the Medicare Part D Low Income Subsidy (LIS) program,
- companies that manufacture medical supplies or pharmaceuticals,
- grocery retailers participating in SNAP,
- agricultural producers who grow foods that are eligible for purchase using SNAP benefits or
- landlords participating in federally funded housing programs.
Current or past applications for or receipt of public benefits as defined "suggests that the alien’s overall financial status is so weak that he or she is or was unable to fully support him or herself without government assistance, i.e., that the alien will receive such benefits in the future.” DHS, therefore, proposes to consider any current and past receipt of certain public benefits "as a negative factor in the totality of the circumstances, because it is indicative of a weak financial status and increases the likelihood that the alien will become a public charge in the future." DHS proposes that past receipt of a fee waiver be considered as part of the financial status factor. "Requesting or receiving a fee waiver for an immigration benefit suggests a weak financial status. Since fee waivers are based on an inability to pay, a fee waiver for an immigration benefit suggests an inability to be self-sufficient," DHS said.
DHS also said that an applicant’s education and skills "are mandatory statutory factors that must be considered when determining whether an alien is likely to become a public charge in the future." In general, DHS said, someone with educational credentials and skills "is more employable and less likely to become a public charge." DHS, therefore, proposes that when considering this factor, the agency would consider "whether the alien has adequate education and skills to either obtain or maintain employment sufficient to avoid becoming a public charge, if authorized for employment," to include consideration of the applicant's history of employment, English proficiency, licenses, certifications and academic degrees.
Another proposed "heavily weighed negative factor" would be a lack of "private health insurance or the financial resources to pay for reasonably foreseeable medical costs related to a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide care for him- or herself, to attend school, or to work." A person may provide evidence of the prospect of obtaining health insurance, such as pending employment that provides employer-sponsored health insurance, DHS said. With respect to a person's general state of health, DHS said the agency "would rely on panel physician and civil surgeon medical examination for purposes of whether an individual's circumstances [give] rise to this heavily weighted negative factor." Age would also be considered, with an age of less than 18 or greater than 61 requiring a demonstration of employment or sufficient household assets and resources.
The categories and programs could change under the final rule, which could take many months up to a year or longer before it is finalized. Among other things, the Trump administration will need to review potentially thousands of comments before it can finalize the rule. Moreover, the rule is likely to be subject to litigation.
DHS said the proposed rule will be published in the Federal Register "in the coming weeks." Once it is published, a comment period will last 60 days. A DHS press release announcing the proposed rule is available here. A copy of the proposed rule marked "unofficial" and provided by DHS can be found here.