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DHS Proposes Change to “Public Charge” Rule

On October 10, 2018, the Trump administration published its proposed changes to the public charge rule in order to ensure that those admitted as immigrants and temporary visa holders are more likely to be self-sufficient, and not a public charge (someone who is likely to be primarily dependent on the government for survival).  The proposed rule will expand the types of public assistance that will be considered by immigration officials in making a public charge determination for new applicants, and will be more strict on how much past or potential future dependence on public assistance will disqualify an applicant.

Conrad E. Pollack, PPID’s managing partner and head of our immigration department, highlights important details about the proposed public charge rule that the public should be aware of:

  • The rule impacts applicants, not immigrants. As of this date, we foresee NO impact on persons in the United States who already have green cards or are already naturalized. However, there may possibly be negative ramifications for lawful residents returning to the U.S., who have remained outside the U.S. for periods of more than 6 months.
  • Humanitarian and DACA categories are exempt. There are many categories that are exempt from the rule, including refugees, asylees, and certain nonimmigrant categories (U and T visa holders). The rule also does not apply to consular cases – those persons applying for visas at U.S. consular posts overseas will not be affected by this proposed rule. The categories that ARE subject to the rule include most family and employment-based categories, as well as other nonimmigrant categories. Specifically, the rule applies to applicants seeking adjustment of status to permanent residency, and nonimmigrant extensions and changes of temporary visa status.
  • The rule is prospective. In determining if an applicant qualifies, DHS will look to see if a person is likely to become a public charge in the future by reviewing evidence of an applicant’s past and present situation.
  • DHS will look at two sets of factors in making a public charge determination. The minimum factors and the “heavily weighed factors.” For example, receiving housing assistance and Medicaid will be viewed highly negatively. Disabilities and chronic health conditions are also serious negative factors.
  • Monetary benefits over 15% of the Federal Poverty Level. Benefits that can be monetized are counted as receiving a public benefit if they exceed 15% of the Federal Poverty Guidelines. This is considerably stricter than the current guidelines that require benefits to exceed 50%.
  • “Public Charge” bonds are revived. Applicants who fail to prove that they won’t become a public charge may be given the opportunity to post a bond to prove that they will not become a public charge. The amount will be set by DHS and it will be no less than $10,000 (annual inflation adjustments will occur).
  • $1.5 Billion in taxpayer savings. The DHS predicts that taxpayers will save approximately $1.5 billion a year with this rule due to the anticipated number of individuals who will stop using public assistance.

The Rule Considers the Following to be Public Benefits:

  1. SNAP
  2. Section 8 Housing
  3. Medicaid
  4. Subsidies for Medicare Part D (prescription drugs)
  5. Subsidized Housing under the Housing Act of 1937
  6. Any Cash Assistance for Income Maintenance

Basic Factors Considered in Determining if Applicant Will Become a Public Charge:

  1. Age
  2. Health
  3. Family Status (first time credit reports and scores will be used)
  4. Assets, Resources, & Financial Status
  5. Education & Skills
  6. An Affidavit of Support Submitted by the Alien’s Sponsor

Heavily Weighed Negative Factors Include:

  1. Lack of Employability
  2. Current Receipt of a Public Benefit or Receiving one within the last 36 months
  3. Financial Means to Pay for Medical Bills
  4. Previous Findings of Being a Public Charge

Heavily weighed positive findings revolve around income. If an applicant is over 250% of the Federal Poverty Guidelines, the applicant should not be scrutinized.


What’s Next?

Now that the proposed rule is officially published in the Federal Reserve, there will be a 60-day public comment period that closes on December 10, 2018. Following the 60-day period and DHS’s consideration of the comments made, it would issue final regulations and an effective date for the rule.  Pollack, Pollack, Isaac & DeCicco, LLP will continue to advise of any changes still to come and the final rule in public charge determinations.

For more information on the proposed “public charge” rule or to speak with a reputable US immigration attorney in New York City, please contact our firm online or call 212-203-4795.



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