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What is the New Public Charge Rule and Who Does It Affect? | Part 1

Andrea I. Scheer, an immigration attorney with the law firm Pollack, Pollack, Isaac & DeCicco, LLP, discusses part 1 of the new public charge rule that went into effect on February 24, 2020; and who it affects in today’s edition of LIVE with PPID. In next week’s edition, Ms. Scheer will discuss Form I-944, the declaration of self-sufficiency, which must now be submitted to the U.S. Citizenship and Immigration Services (USCIS) in part 2.

The new rule went into effect on February 24, 2020. Public charge considerations have always been part of the immigration system. However, prior to February 24, there was a more lenient rule in place. The new rule makes it much more difficult to immigrate to the United States.

There are four major changes to public charge considerations.

 

  1. First, the language of the statute changes to whether a person is “likely at any time to use or receive one or more public benefits.”
    • Immigration officers will now apply a totality of the circumstances standard. Meaning that receiving public benefits will only be a factor in the analysis. Officers will also look at age, income, education, health, family and employment.

 

  1. Second, the rule expands the programs that count as a public benefit to include benefit programs that are not cash benefits such as: SNAP, food stamps, non-emergency Medicaid, public housing and section 8, as well as cash assistance and institutionalization for long term care.
    • It does not include benefits such as emergency medical assistance, disaster relief, national school lunch program, children’s health insurance program
    • The rule is NOT retroactive, which means any applications sent before February 24, 2020, will not be impacted by this new rule; rather they will be subject to the older more lenient rule.
    • Some amount of public benefits is allowed, but you cannot receive more than 12 months of total benefits in a 3-year period.
    • The regulation doesn’t apply to benefits used by U.S. citizen children even if the benefits are under your name.
    • Each benefit counts separately. Example: If you receive rental assistance and food stamps in the same month, that would count as two months of benefits.

 

  1. Third, the rule expands when the test is applied to include those applications to change or extend nonimmigrant visas.
    • For example, if you entered the United States as a tourist and would like to extend your six months stay, you will be subject to public charge considerations.

 

  1. The fourth and final major change is that the rule reduces the weight of the affidavit of support in the totality of the circumstances analysis. In the past, the affidavit of support, which is filed with most green card applications, signed by a United States citizen or permanent resident sponsor was sufficient to show that an immigrant would not be a public charge in the future. However, now it will only be a factor in the analysis.

 

There are many exceptions to the rule. It does not impact refugees or asylum seekers, as well as trafficking victims, victims of crime or victims of domestic violence amongst others.

The rule only applies to you when you apply to become a permanent resident or you apply to change or extend status within the United States. If you are applying for a green card, then yes, you are subject to the public charge rule, unless you fall under an exception.

There is a lot of information out there and sometimes it can be very misleading, so please speak to an experienced immigration attorney before you decide to terminate, start, or continue using public benefits.

 

Please consult with an immigration attorney if you have any questions about the new public charge rule or other immigration matter by calling 212-203-4795.

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