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Public Charge and its Effect on Your Quest for Residency

Public Charge and its Effect on Your Quest for Residency

What You Need to Know About the Inadmissibility on Public Charge Grounds Final Rule

The United States immigration statutes have long required foreign individuals to be self-sufficient. In 2019, the Department of Homeland Security elaborated on inadmissibility on public charge grounds in a final rule that outlines their criteria of judging the likelihood that someone will become a public charge, and the effects that their reliance on government assistance will have if they seek an adjustment of status.

The final rule has been battled since its introduction last year, with many deeming it immoral to enforce during the coronavirus pandemic. Still, the rule proved unstoppable in September.

Timeline of Inadmissibility on Public Charge Grounds

The final rule was met with criticism almost immediately upon its publication. During its implementation, some states tried to bar its effectiveness by passing a public charge injunction. Unfortunately, this protection was temporary, with the Department of Homeland Security granting a stay to the injunction, effectively thwarting the efforts of the circuit court to protect individuals amidst the coronavirus pandemic when many faced the risk of infection and had no way to receive care should they fall ill. Over the course of the last year, the final rule took many turns before its finalization:

  • August 14, 2019: The Department of Homeland Security published the final rule
  • October 2, 2019: The Department of Homeland Security released a document correcting the use of “exemption” and “exclusion” within the document
  • October 10, 2019: The Department of Homeland Security issued a Notice of Proposed Rulemaking in the Federal Register for a 60-day period to welcome comments from the public
  • October 15, 2019: The final rule was scheduled to go into effect, but was postponed because of delays from litigations
  • February 24, 2020: The final rule went into effect nationwide
  • July 29, 2020: The U.S. District Court for the Southern District of New York issued an injunction to bar DHS from enforcing the public charge rule during a national emergency
  • July 30, 2020: USCIS announced it would abide by the 1999 public charge guidelines in applications for adjustment of status on or after July 29, 2020
  • August 12, 2020: U.S. Court of Appeals for the Second Circuit issued a temporary stay of the nationwide injunction in all states except New York, Connecticut, and Vermont (the states within the Second Circuit)
  • September 11, 2020: U.S. Court of Appeals for the Second Circuit granted a full stay on the July 29 injunction, thereby allowing DHS to implement the public charge nationwide, even in New York, Connecticut, and Vermont

Defining a Public Charge

According to the final rule, a foreigner is a public charge if they receive public assistance and benefits for more than 12 months total within a three-year period. However, if the foreigner receives two benefits within the same month, it counts as two months.

Beyond being deemed a current public charge, individuals can be penalized if they are thought to be more likely than not to become one. To make such a decision, the Department of Homeland Security looks at the applicant’s age, health, finances, education and skills, family status, prospective immigration status, period of admission, and their Form I-864 or Form I-864EZ. They also look at more specific individual circumstances, including:

  • The individual being eligible to work but not being currently or recently employed or anticipating employment soon, despite not being a full-time student
  • The individual has qualified for at least one public benefit for more than one year within a given three-year period
  • The individual has a preexisting condition likely to interfere with their ability to provide for themselves and afford their treatment
  • The individual has been previously deemed inadmissible or deportable on grounds of public charge by an immigration judge or Board of Immigration Appeals

The final rule further outlines the government benefits that can disqualify an applicant should they qualify for the assistance. This includes:

  • Income maintenance, be it federal, state, local, or tribal
  • Supplemental Security Income
  • Supplemental Nutrition Assistance Program (better known as food stamps)
  • Section 8 Housing Assistance or Project-Based Rental Assistance
  • Most federally funded Medicaid programs

These disqualifying aspects apply only to the noncitizen. If the foreigner has children who attain citizenship, the children may receive such benefits without posing a threat to the parents’ prospect of citizenship.

Who Does the Public Charge Apply to?

Inadmissibility on public charge grounds is applicable to:

  • Applicants for immigrant or nonimmigrant visas abroad
  • Aliens within the United States seeking an adjustment of status to become a lawful permanent resident
  • Those seeking entry into the United States on immigrant or nonimmigrant visas

The final rule outlines specific groups who are not affected by the public charge rules, and who therefore may receive government assistance without fear for their future in the United States. The public charge grounds do not apply to:

  • American citizens
  • Afghans and Iraqis in the country on special immigrant visas
  • Applicants under Violence Against Women Act
  • Asylees
  • Qualifying nonimmigrant victims of trafficking or other crimes
  • Refugees
  • Special immigrant juveniles
  • Those granted a waiver of public charge inadmissibility by the Department of Homeland Security

Other Exemptions

The final rule offers a few final exemptions to those who are vulnerable to inadmissibility in regard to Medicaid usage. Medicaid use will not be considered by the Department of Homeland Security if it was:

  • Used to treat an emergency medical condition
  • Provided under the Individuals with Disabilities Education Act
  • Received by someone under 21
  • Received by a woman during her pregnancy and the 60-day period following birth

In instances where the recipient is a child, the alien may remain safe from any effect to their admissibility if they are simply receiving the benefit on behalf of the child, with the benefits still serving the child alone.

The USCIS also released an alert urging any foreigners experiencing COVID-19 systems to seek the necessary healthcare and preventative services. Testing, screening, and treatment of the coronavirus and other communicable diseases will not impact your admissibility. The individual may also provide explanation for their reliance on government assistance during the pandemic if they have lost their job or are prevented from attending school.

Contact Musa-Obregon Law PC for more information regarding inadmissibility on public charge grounds and how we can work to protect your future within the country.


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