Public Charge Updates in 2019

One of the key inquiries made by the United States Citizen and Immigration Services (USCIS) when deciding to grant or deny a nonimmigrant visa or permanent residency is whether an applicant will likely be or become a public charge. A public charge is an individual that will heavily rely on the federal government for assistance. For the purposes of this article, we will focus on public charge analysis as applicable to an applicant for U.S. permanent residency.

An applicant has the duty to show that he or she will not be a public charge by demonstrating he or she has and will have sufficient income or financial support if granted permanent residency in the United States.

When determining if an applicant is or is likely to become a public charge the USCIS considers the applicant’s age, health, family status, assets, resources, financial status, education, and skills.  Furthermore, applicants are required to submit an affidavit of support from family members or friends pledging financial support to the applicant in the case of financial hardship.

The USCIS looks at all the documentation submitted by the applicant in its entirety and either grants or denies permanent residency, or a change in visa status, based on a totality of the circumstance’s analysis.

Traditionally, not all government services and assistance have been considered in the public charge analysis.  Recently, the Department of Homeland Security (DHS) proposed a change to current rules that would affect what services and support the USCIS would consider when evaluating whether an applicant is or would likely become a public charge.

Proposed rule changes do not have the force of law until the rules are finalized, therefore, current permanent residency applicants should not change the services they are currently receiving or refuse the use of government services based on any proposed changes.

Current Public Charge Service

Currently, the USCIS only considers a permanent resident applicant a public charge if the applicant is receiving or is likely to receive a public benefit from the Federal Government. Traditionally, a public benefit was limited in definition to the receipt of cash.

Examples of cash services included Temporary Assistance for Needy Families, Supplemental Security Income (also known as social security), or long-term care facilities sponsored by the federal government.

Traditionally, these programs are directly funded by federal income tax dollars and the USCIS has denied permanent resident status to immigrants that would increase the burden on social systems that are already financially struggling.  The USCIS may deny an applicant even if an applicant has not previously used public benefits, if the USCIS determines that the applicant is likely to rely on public benefits in the future.

Proposed Changes

The proposed changes are inspired by the Trump Administration’s policies to protect American Workers and American Wages. In the proposed changes, the DHS stated that the DHS seeks to increase self-sufficiency and more clearly define when a permanent resident has received a public benefit.

The proposed changes would consider the use or the likely need of noncash support. Examples of noncash benefits include the Supplemental Nutrition Assistance Program (SNAP, formerly called food stamps), Housing Choice Voucher (formerly called section 8), Medicaid, and Medicare Part D.

The DHS stated that if a foreign national is unable to provide themselves with food, shelter, and medical care, then the foreign national is not self-sufficient and will likely require assistance, now or in the future, from the state.

Further, the DHS proposed rule clarifies when the use of noncash support would lead to a determination that the applicant was a public charge. First, if the noncash benefit can be monetized, then the value of the benefit may not exceed 15% of the Federal Poverty Guidelines (FPG) for a household of one within a period of 12 consecutive months based on the per-month FPG for the months during which the benefits are received.

For example, the USCIS could determine the monetary value of a housing voucher and the voucher must not exceed 15% of the FPG for a single person household. If the voucher exceeded 15%, then the USCIS would find the applicant to be a public charge.

Second, if the noncash benefit cannot be monetized, then the benefit must not be used for more than 12 months within a 36-month period. For example, it may be difficult to determine the exact value of medical care or services received, therefore, the applicant would be found a public charge if he or she received benefits for more than one year in the last three years. Emergency medical services are excluded from the proposed changes.

Avoiding Being A Public Charge – Cash Assistance

Currently, foreign nationals do not need to change their behavior or the government services that they are using in order to apply for permanent residency.

During a time of volatile immigration law announced changes can cause panic and rapid change in behavior.  For example, after announcing the proposed rule changes local Women, Infant, and Children Facilities saw a 20% reduction in applications. These facilities provide money and financial assistance to young mothers and pregnant women to purchase food and formula for newborns and children.

If the rule is finalized and takes effect foreign nationals seeking permanent residency will not need to stop using all government services, but foreign nationals will need to monitor the monetary amount of services they receive or the amount of time they receive the services.

For example, a foreign national could receive food assistance through SNAP as long as he or she received less than $1,874 per year this number is based on 15% of the 2019 poverty level for a single person. This amount is subject to change yearly).  Similarly, a foreign national could receive housing assistance up to $1,874 per year, which in most cases would be one or two months of rent assistance.

Furthermore, foreign nationals would need to ensure that they are not awarded assistance higher than $1,874 per year even if they only use $1,874. For example, if a foreign national is awarded $3,000 in food assistance but only uses $1,874, then the foreign national will most likely still be found to be a public charge.

 

Monitoring the amount of cash benefits a foreign national receives will be crucial to avoid a public charge determination.

Avoiding Being A Public Charge – Noncash Assistance

Currently, foreign nationals do not need to change their behavior or the government services that they are using in order to apply for permanent residency.  This includes the use of Medicaid and Medicare part D.

Even if the current rules are changed, foreign nationals would be entitled to emergency services and 12 months of medical subsidies within a 36-month period. Consequently, foreign nationals should not deny themselves access to medical services in fear of the proposed rules being finalized, because they could still receive 12 months of medical subsidies without being labeled a public charge.

Applying for Health Insurance Through the Affordable Care Act (ACA)

Applying for private subsidized health insurance through the ACA will most likely not lead to a determination that a foreign national will be a public charge.  A public charge determination is only appropriate when a foreign national applies for public benefits and the ACA offers tax incentives for private benefits.

Some states automatically create a Medicaid application when anyone applies for health insurance on the Marketplace Exchange, but when an applicant is denied Medicaid then the marketplace determines an applicant’s eligibility for an ACA tax credit health insurance plan.

A Medicaid application will likely lead to a public charge analysis, but the proposed rule explicitly excludes ACA tax credits. Therefore, where a foreign national did not enroll in Medicaid and was forced to apply by state law, the foreign national would have a strong argument and supporting evidence that the foreign national is not a public charge.

In contrast to forced application, the USCIS will likely find a foreign national is a public charge if the foreign national uses a subsidized health care plan purchased on the Marketplace Exchange for long term care.

Under the proposed rule, if a foreign national’s current health care coverage would lead to a public charge determination, then the foreign national would have 60 days from the date the proposed rule is finalized to change their health insurance coverage.

A foreign national should not deny him or herself coverage under the ACA in anticipation of the proposed rule being finalized. If the rule was finalized Marketplace Exchange insurance plans would be excluded and if a foreign national’s plan would be considered, then a foreign national would have 60 days to change their current health care coverage.

Conclusion

The Trump Administration has brought rapid changes and uncertainty to many areas of immigration law.  Currently, foreign nationals should not stop receiving government benefits that have not traditionally been considered in the USCIS’s public charge analysis.  Even if the new rule is passed, foreign nationals should carefully consider what services they choose to stop using because not all services will lead to a determination that a foreign national is a public charge.Public Charge Updates in 2019 Under the Trump Administration

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