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.

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International Entrepreneur Rule Gets a Second Chance

(Read more about International Entrepreneur Rule in the earlier article here)

On December 1, 2017, in National Venture Capital Association v. Duke the United States District Court of the District of Columbia ruled the United States Citizenship and Immigration Services (USCIS) violated the Administration Procedure Act’s (APA) notice and comment rulemaking requirements when it decided to delay the international entrepreneurial rule (IER) without giving the public adequate notice or time to comment on its decision to delay the rule.

On January 17, 2017, three days before the end of the Obama administration, the Department of Homeland Security (DHS) published the final IER rule to allow foreign nationals who meet certain entrepreneurial standards to apply for parole, which is temporary admission into the United States to grow new companies. The rule was to set to go into effect on July 17, 2017, 180 days following its publication.

A Change In Administrations

On January 25, 2017, President Trump issued an executive order that required all agencies to reexamine its parole admission policy and ensure it was not being abused. On July 11, 2017, six months after the President’s executive order and six days before the IER became effective, the USCIS announced it would be delaying the IER until March 14, 2018 to review its compliance with the President’s executive order. The USCIS did not engage in the rulemaking process when it delayed the IER.

International Entrepreneur Rule Overview

Prior to the IER, the Secretary of Homeland Security had the authority to grant parole admission into the United States on a case-by-case basis if a foreign national had been subject to a national disaster or the foreign national could provide sufficient evidence that his or her admission into the United States would provide a significant public benefit. However, Congress had never defined a “significant public benefit” and the IER established what criteria the USCIS should use in determining if an entrepreneur would be considered a “significant public benefit.”

Then, according to the National Venture Capital Association decision, meeting the requirements did not automatically grant admission to an applicant; but rather, streamlined the agency’s [DHS] treatment of entrepreneurs. In forming the IER, the DHS had initially undergone the notice and comment proceedings under the APA, made significant changes, and delayed the final implementation of the rule until July 17, 2017, to ensure the USCIS had adequate time to allocate the resources necessary to implement the new rule without sacrificing any of its current services.

However, under President Trump’s executive order IER did not go into effect on July 17, 2017, and a lawsuit followed.

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