New Public Charge Rule Coming Out on August 14, 2019, Not Retroactive for Cases Submitted Before 10/15/19 and ACA Subsidized Health Insurance Outside of Medicaid not Considered a Public Benefit

by


I have not read the advance copy of the final rule as it is over 800 pages, so this is not a comprehensive summary and is only based on reading the regulation itself and not the comments save for those dealing with health insurance. This can best be used as a quick guide to most of the changes to the public charge section.

The rule goes into effect on 10/15/19, and all cases will be judged by it which are submitted on that day or after. All cases submitted prior to that date will be judged by the old rules. Under the old rules, food stamps (SNAP), section 8 housing vouchers and any other benefits excluded from consideration now are not to be considered. Those that would be considered public benefits now and are received before 10/15/19 will be considered in the totality of the applicant’s circumstances, but will not be weighed heavily. Those include any amount of cash assistance for income maintenance, including SSI, Temporary Assistance for Needy Families (TANF), state and local cash assistance programs that provide benefits for income maintenance (often called general assistance programs), and programs including Medicaid supporting aliens who are institutionalized for long-term care, received, or certified for receipt.

The standard of proof in determining the public charge ground is whether someone is "more likely than not" at any time to become a public charge.

U.S.C.I.S. will make a determination of public charge on the totality of circumstances of whether the alien is more likely than not at any time in the future to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period. Minimum factors to consider are the alien’s age, health, family status, education and skills, and assets, resources, and financial status. In looking at the family status, DHS will consider the household size and whether the household size makes the alien more likely than not to become a public charge at any time in the future. In looking at assets, resources, and financial status, the rule looks at whether the household's annual gross income is at least 125% of the most recent federal poverty guideline (FPG), and on counting assets three times the difference between the household income and 125% of the FPG if the alien is the spouse or child of a USC (and the child has reached the age of 18), and in all other cases five times the difference.

Evidence-wise, U.S.C.I.S. will be looking for tax transcripts from the IRS, and if they cannot be obtained, other credible and probative evidence of household members’ income, including an explanation of why a transcript is not available. Non-cash assets and resources to be considered are those which can be converted into cash within 12 months –specifically mentioned are annuities, securities, retirement and educational accounts, and any other assets easily converted to cash. The rule also considers as evidence the alien’s credit history and credit score in the United States and other evidence of liabilities not reflected in the credit history and credit score, e.g. mortgages, car loans, unpaid child or spousal support, unpaid taxes, and credit card debt.

In considering education and skills, an alien must provide the last three years of tax transcripts from IRS and if not available, other credible and probative evidence of the alien’s history of employment for the past three years including an explanation as to why transcripts are not available; whether he or she has a high school diploma or a higher education degree; whether the alien has any occupational skills, certifications, or licenses; whether the alien is proficient in English or proficient in other languages in addition to English; and whether the alien is a primary caregiver such that the alien lacks an employment history.

Applicants seeking adjustment of status will be required to submit a declaration of self-sufficiency on a form to be designated by DHS.

Where an affidavit of support is required in family-based cases, U.S.C.I.S. will be looking at the sponsor’s relationship to the applicant, including but not limited to whether the sponsor lives with the alien, and whether the sponsor has submitted an affidavit of support for other individuals.

The household size for an alien 21 or older or under 21 and married includes the alien, alien’s spouse physically residing with the alien, children physically residing with the alien, other children not physically residing for whom the alien provides or is required to provide at least 50% of the children's financial support, any other individuals including a spouse not physically residing with the alien to whom the alien provides or is required to provide at least 50% of the individual’s financial support or are listed as dependents on the alien's federal income tax return, and any individual who provides to the alien at least 50% of the alien's financial support, or who lists the alien as a dependent on his or her federal income tax return. Similar rules apply where the alien is a child including the child's children, parents, legal guardians, or other individuals providing or required to provide at least 50% of financial support, and the other children or other individuals to whom the alien's parents are legal guardians who provide or are required to provide at least 50% financial support, or any other individual who is listed as a dependent on the parents’ or legal guardians’ federal tax return.

Heavily weighted negative factors are that the alien is not a full-time student and is authorized to work, but is unable to demonstrate current employment, recent employment history, or reasonable prospect of future employment; has received or has been certified or approved to receive one or more public benefits for more than 12 months in the aggregate within any 36 month period beginning no earlier than 36 months prior to the alien's application for permission or adjustment status on or after 10/15/19; the alien has been diagnosed with a medical condition likely to require extensive medical treatment or institutionalization or that will interfere with the alien's ability to provide for himself or herself, attend school, or work, and is uninsured and does not have the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition; or the alien was previously found inadmissible or deported on public charge grounds by an immigration judge or the Board of Immigration Appeals.

Heavily weighted positive factors are that the alien's household has income, assets, or resources, and support of at least 250% of the FPG for the alien’s household size; the alien is authorized to work and is currently employed in a legal (as opposed to illegal) industry with an annual income of at least 250% of the FPG; or the alien has private health insurance and does not include health insurance for which the alien receives subsidies in the form of premium tax credits under the Affordable Care Act (ACA).

Refugees and asylees along with certain other classes are exempt from the rule.

Public benefit means all of the ones currently prohibited, but the new ones are food stamps (SNAP), section 8 housing assistance under the housing choice voucher program, section 8 project-based rental assistance, public housing under section 9 of the US Housing Act of 1937, and Medicaid (except for emergencies, benefits under the Disabilities Education Act, school-based services or benefits for persons below the oldest age eligible for secondary education, benefits received by an alien under 21 or a woman during pregnancy and during the 60 day period beginning on the last day of the pregnancy). Of note is that it does not include health insurance bought with subsidies outside Medicaid. In answer to a comment on whether to add subsidies provided using means tested criteria under the Patient Protection and Affordable Care Act, DHS answered in the following:

DHS has decided not to consider ACA subsidies or health insurance received through the health insurance marketplace outside of Medicaid as public benefits in the public charge inadmissibility determination, due to the complexity of assessing the value of the benefit and the higher income eligibility thresholds associated with the benefit, as compared to the eligibility thresholds for other benefits. As discussed in section III.R of this preamble, DHS has added a heavily weighted positive factor for private health insurance appropriate to the expected period of admission. This heavily weighted positive factor would not apply in the case of a plan for which the alien receives subsidies in the form of premium tax credits.

In the future, a strong suggestion would be for those organizations offering subsidized health insurance to openly identify the source of the subsidies.

Public charge bonds to overcome the public charge ground can be given in the discretion of DHS with the warning that if an alien has one or more heavily weighted negative factors in his or her case, DHS generally will not favorably exercise discretion to allow submission of the bond. The minimum amount of bond has been decided as not less than $8100, and bond amounts will be annually adjusted for inflation based on the Consumer Price Index for Urban Areas (CPI-U) and rounded up to the nearest dollar. The bond remains in effect until U.S.C.I.S. grants the request to cancel the bond in situations wherein the alien has naturalized or otherwise obtained US citizenship, permanently departs the US, dies, has reached his or her five year anniversary since becoming an LPR, or the alien changes immigration status to one not subject to the public charge ground of inadmissibility. Where a bond has been granted, the alien may not receive any public benefits for more than 12 months in an aggregate within any 36 month period (such that, for instance, receipt of two benefits in one month counts as two months) after the alien’s adjustment of status.

We imagine that in the next two months before the regulation goes into effect, there will be court challenges which may delay or alter the final rule, and we hope that such will meet with success. The rule while not being the worst imaginable in this author’s opinion clearly favors those who are young, educated, middle-class to affluent, and speak English. The Trump administration has already said that parents, less educated, and non-English-speaking people (mostly those of color) are no longer welcome, and this regulation is that planted sign on the front lawn of America.

‡ This article © 2019 Alan Lee, Esq.


About The Author

Alan Lee, Esq. is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in theMartindale-Hubbell Law Directory for 20+ years, registered in theBar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.