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Warning: New Regulations Regarding Public Charge Will Affect Thousands

Author: New York Immigration Lawyer Alena Shautsova

DHS has published an advance copy of the Public Charge Rogations. A “public charge” inadmissibility ground has been in the US laws for a long time, but the way the government officials were have been considering cases now is going to change.

Ordinarily, when a person is being sponsored for a US immigrant visa, the petitioner has to provide an affidavit of support, confirming that the sponsored immigrant will not become a “public charge”: that is that the petitioner or the joint sponsor will be responsible for the person in the US if he/she does not work, and the immigrant will not be using public resources in the US (such as Medicaid, Cash assistance, Food Stamps, etc.)

It has been sufficient for a sponsor to produce an affidavit of support, a copy of the recent Federal tax return and, at times, copies of pay stubs.

Now, the new proposal would sufficiently illuminate a person’s chance to become a green card holder though family immigration if he/she is in poor health, does not have education/profession that would allow him/her to earn a living in the US; of an advanced age; does not possess assets that would allow him/her to support him/herself in the US.

The receipt of the public benefits will be taken into consideration. DHS proposes that be a person will be regarded as potential public charge if he/she uses the cumulative value of one or more such benefits that can be monetized (i.e., where DHS can determine the cash value of such benefit) exceeds 15 percent 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 (hereafter referred to as the 15 percent of FPG or the proposed 15 percent standard or threshold); or DHS proposes that the threshold for duration of receipt of the nonmonetizable benefits would be 9 months in the aggregate within a 36-month period.

The following benefits will be considered:

Monetizable benefits:

Any Federal, State, local, or tribal cash assistance for income maintenance, including Supplemental Security Income (SSI)

Temporary Assistance for Needy Families (TANF), and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which may exist under other names);

Benefits that can be monetized in accordance with proposed 8 CFR 212.24:

Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”), Public housing defined as Section 8 Housing Choice Voucher Program;

Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);

Non-cash benefits that cannot be monetized:

Benefits paid for by Medicaid, 42 U.S.C. 1396 et seq., except for emergency medical conditions as prescribed in section 1903(v) of Title XIX of the Social Security Act, 42 U.S.C. 1396b(v), 42 CFR 440.255(c), and for services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);

and benefits provided to foreign-born children of U.S. citizen parents;

Premium and Cost-Sharing Subsidies for Medicare Part D;

Benefits provided for institutionalization for long-term care at government expense;

Subsidized Housing under the Housing Act of 1937, 42 U.S.C. 1437 et seq.

In sum, the following factors will be regarded as highly negative: (a) Lack of Employability (b) Current Receipt of One of More Public Benefit (c) Receipt of Public Benefits within last 36 Months of Filing Application (d) Financial Means to Pay for Medical Costs (e) Alien Previously Found Inadmissible or Deportable Based on Public Charge.

In addition, the proposed rules will also affect non-immigrant status seekers, such as those who file form I 539( change/extension of status) for example. In certain situations, the applicants will have to execute an affidavit of self-sufficiency. People seeking admission in non-immigrant categories will be also evaluated on account of potential public charge (for example, B1/2 visa holders).

Finally, the DHS proposes a Public Charge Bond (minimum $10,000): a surety that a person will be able to place with the government if the government finds him/her inadmissible based on public charge.

26 September 2018
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