DHS AND DOS IMPLEMENT NEW PUBLIC CHARGE RULE FOR GREEN CARD AND VISA APPLICANTS IN THE U.S. AND ABROAD

Under the new public charge rule, implemented on February 24, 2020, foreign nationals applying for a change or extension of status, a temporary visa, or permanent residence (aka the ‘Green Card’) here in the U.S. or at Consulates abroad, will have to demonstrate that they are financially self-sufficient and not likely at any time to become a ‘public charge’ (i.e., someone in need of financial assistance from the U.S. government).  If an applicant is deemed inadmissible on public charge grounds, he or she may still be allowed to obtain their status, visa, or Green Card by paying a bond.  While the concept of asking immigrants to demonstrate basic financial means has been around for over a century, the new rule significantly raises the bar, especially for lower-income, lower-skilled, and family-based immigrants.

Who is exempt from the new public charge rule?

In general, the rule will not apply to U.S. citizens and most permanent residents.  Refugees, asylees, special immigrant juveniles, victims of serious crime and/or human trafficking, VAWA self-petitioners, Temporary Protected Status applicants, and a few other categories are also exempt.

What factors will be considered under the new public charge rule?

Applicants for permanent residence (in the U.S. or at U.S. Consulates abroad), will have to pass a complex test in which immigration officials weigh the totality of their circumstances, including the applicant’s age, health, family status, income, financial assets and liabilities, health insurance coverage, education and skills, and the purpose and duration of the intended stay in the U.S.  In addition, they must disclose whether they ever applied for or received public benefits while in the U.S.

Those applying for an extension or change of their nonimmigrant status from inside the U.S. will only have to report public benefits received on or after February 24, 2020.

What public benefits are problematic under the new rule?

• Any federal, state, local or tribal cash assistance for income maintenance (other than tax credits), such as:
  • Supplemental Security Income (SSI);
  • Temporary Assistance for Needy Families (TANF);
  • Federal, state or local cash benefit programs for income maintenance (“general assistance”);
• Supplemental Nutrition Assistance Program (SNAP or “food stamps”);
• Section 8 Housing Assistance under HUD’s Housing Choice Voucher Program;
• Section 8 Project-Based Rental Assistance (incl. Moderate Rehabilitation);
• Medicaid (with certain exceptions, incl. medical emergencies, pregnant women, minors); and
• Public Housing under section 9.

What are some of the benefits applicants can receive without fear of negative consequences?

• Benefits received on behalf of family members;
• Benefits received by U.S. military service members or their spouses and children;
• Medicaid benefits received for a medical emergency, during pregnancy or within 60 days of pregnancy, or by applicants under age 21; immunizations; Medicaid Part D LIS; CHIP; health insurance under the Affordable Care Act;
• Disaster relief; energy assistance; food pantries; homeless shelters;
• Student and mortgage loans; Pell Grants and student aid; school-based services or benefit (e.g. school lunch programs) provided to minors; services or benefits under the Individuals with Disabilities Education Act (IDEA);
• Worker’s compensation or unemployment benefits; social security.

Will the new public charge rule lead to longer application preparation and government processing times?

In short: yes.  Applicants for a change or extension of their nonimmigrant status will have to answer a series of new questions.  Adjustment (Green Card) applicants will have to complete an additional 19‑page Form, the I‑944 Declaration of Self-Sufficiency, while immigrant visa applicants must submit the new 4‑page DS‑5540 Public Charge Questionnaire.  Depending on the applicant’s situation, extensive supporting documentation may also be required, all of which will then have to be reviewed and evaluated by immigration officials.

– Katja Frommer, Attorney at Serotte Law