Understanding the new DHS rule on public charge inadmissibility

Understanding the new rules on
public charge inadmissibility
August 20, 2019
Live webinar – AILA Washington Chapter

www.soundimmigration.com
Outline
The current public charge rules01
New totality of circumstances test and prohibited
programs
02
Public charge bonds03
Considerations for immigration
lawyers
04
page 2

Current rules
Statutory factors and
the Form I-864

Immigration
and
Nationality
Act
• Self-sufficiency required since
1882.
• INA prohibition: “likely at any time to
become a public charge.”
• No definition of “public charge.”
• Factors “to be taken into account.”
• Age
• Health
• “Family status”
• Assets, resources and financial status
• Education and skills

Affidavits of
Support
Thanks,
Joey Gurian

1996
legislation
• Illegal Immigration Reform and
Immigrant Responsibility Act
(IIRAIRA).
1. Binding Affidavits of Support.
• Enforceable by government.
• Also by immigrant
beneficiary.
2. Required in virtually all family-
sponsored cases.

1996
legislation
• Personal Responsibility and Work
Opportunity Reconciliation Act
(PRWORA)
• Limits means-tested benefits to
“qualified aliens.”
• = Lawful permanent resident
(LPR) status for 5+ years.

INS Field
Guidance
(1997)
• “Likely to become a public charge” =
“primarily dependent on
government for subsistence”
1. Case assistance for income
maintenance.
• SSI
• TANF
• General assistance.
2. Institutionalization for long-
term care at government
expense.

But here’s the practical reality:
Currently, a valid and sufficient Form I-864
resolves public charge inadmissibility absent
extraordinary circumstances.
page 9

Consular processing
page 10

Consular processing
page 11

Consular processing
page 12

Prospective only:
Effective to applications postmarked after:
October 15, 2019 at noon EDT
So file before then!!
page 14

This is a
DHS rule
Doesn’t apply:
• Consular processing cases;
• Immigration court; and
• Doesn’t create new procedures at
ports of entry.

This is a
DHS rule
Main application:
Adjustment of status cases.
Also change/extension of status,
but standard is not very onerous.

Exempt
groups
• Amerasian immigrants;
• Afghan and Iraqi special visa interpreters;
• Cuban and Haitian entrants under section 202 of the
Immigration Reform and Control Act of 1986;
• Applicants under the Cuban Adjustment Act;
• Applicants under the Nicaraguan Adjustment and
Central American Relief Act;
• Applicants under the Haitian Refugee Immigration
Fairness Act of 1998;
• Special immigrant juveniles;
• Applicants for Temporary Protected Status; and
• Most self-petitioners under the Violence Against
Women Act.

T-Visa
holders
(Unlike in proposed rule) don’t have
to “apply” for a waiver, and DHS
“may” grant a waiver.

New
definition of
“public
charge”
• “Public charge” = one who receives
“public benefits.”
• “Public benefits” = receives qualified
program above defined de minimis
levels.
• But…
• Prospective test based on multi-
factor totality of circumstances
test.

Hang in there.
Let’s unpack this.
First: “public benefits.”
page 21

October 2018 proposed rule
page 22
Public benefits
Monetizable benefits
Non-monetizable
benefits
• Medicaid.
• Institutionalization for
long-term care.
• Medicare, Part D
• Subsidized housing.Cash
• SSI.
• TANF.
• General.
Assistance.
Non-cash
• SNAP.
• Section 8 housing
choice voucher.
• Section 8 project-
based.
• Rental assistance.

The de minimis threshold
Receiving benefits for 12 months
in any 36-month period
page 23

What programs?
• SSI;
• TANF;
• SNAP/Food Stamps;
• Medicaid;
• Section 8 housing;
• Section 9 public housing.
page 24

What is not on the list?
• WIC;
• “Obamacare” (but wait…);
• Earned Income Tax Credit;
• Medicare Part D; and
• “Institutionalization for long term care.”
page 25

Medicaid exceptions
1. Emergency Medicaid;
2. Individuals with Disabilities Education Act;
3. School-based services;
4. Under age 21; and
5. Pregnant women.
page 26

Other exceptions
1. Military families; and
2. Children who will automatically become
citizens after adjusting (live with U.S. citizen
parent).
page 27

Other exceptions
page 28
Receipt of benefits by household members is
not imputed to foreign national applicant

Rule is prospective only
Looks at receipt of public benefit programs
on/after October 15, 2019
But, prior receipt/application/certification will
still be reported and considered.
page 29

Totality of
circumstances test

Form I-944, Declaration of Self-Sufficiency
page 31
Sort of like the newer, harder, longer
Form I-864, Affidavit of Support…
but for the immigrant.

Form I-944, Declaration of Self-Sufficiency
page 32
Documentation includes:
~ Three years of tax transcripts;
~ Credit report;
~ Documentation of any untaxed income;
~ Proof of asset-ownership if needed, including a real estate appraisal from a licensed appraiser;
~ Copies of policy pages for all health insurance policies, or documentation that applicant has
enrolled;
~ Any “documentation that may outweigh any negative factors related to a medical condition”
and
~ Child support orders and/or custody agreement, for any children being supported who do not
reside in the household.

The factors.
1. Age.
2. Health.
3. Family status.
4. Assets, resources and financial status.
5. Education and skills.
6. Anticipated period of admission.
7. Affidavit of support.
page 33

Age
• Preference given to working age:
18-65/67.
• Considered in relation to
employment and employability.

Health
• Whether the applicant has a medical
condition that impacts her ability to
work.
• Primarily based on G-639.

“Family
status”
Household includes:
● The applicant;
● The applicant’s spouse, if residing with the applicant;
● The applicant’s children, if either residing with the applicant or if he
is required to provide at least 50% of the child’s financial support;
● Anyone other individual for whom the applicant is required to
provide at least 50% of the individual’s financial support

Assets,
resources and
financial
status
1. Whether the applicant’s income is
at/above 125% FPG;
2. Whether the applicant has
sufficient resources to cover
reasonably foreseeable medical
costs; and
3. Whether the applicant has
financial liabilities or has received
public benefits.

Assets,
resources and
financial
status
Income from unauthorized
employment may be counted.

Education
and skills
DHS will consider…
• Three years of tax transcripts.
• High school diploma or higher;
• Documented occupational skills;
and
• Proof of English language ability.

Anticipated
period of
admission
• The immigration status that the
applicant seeks and the period of
planned admission.

Affidavit of
Support
• Sponsor’s income, assets and
resources.
• Sponsor’s relationship to the
applicant.
• “Likelihood that the sponsor would
actually provide the statutorily-
required amount of financial
support.”

Overall impression:
A fog of overlapping and broad considerations
that will give adjudicators extraordinary
authority to find material supporting an
inadmissibility finding.
page 42

“Heavily-weighted” considerations
Supposedly not outcome determinative…
but nearly so.
page 43

“Heavily-weighted” negative:
1. “The alien is not a full-time student and is authorized to work, but is unable to
demonstrate current employment, and has no employment history or no reasonable
prospect of future employment.”
page 44

2. The applicant is currently receiving – of certified/approved to receive – public
benefits.
page 45

3. Applicant been diagnosed with a medical condition that is likely to require extensive
medical treatment or institutionalization or that will interfere with the alien’s ability to
provide for him- or herself, attend school, or work; and… The alien is uninsured and
has neither the prospect of obtaining private health insurance, or the financial
resources to pay for reasonably foreseeable medical costs related to a the [sic.]
medical condition.”
page 46

4. Prior public charge inadmissibility finding by Immigration Judge or Board of
Immigration Appeals.
page 47

“Heavily-weighted” positive:
1. Applicant’s household income is at/above 250%
FPG (including assets).
page 48

2. Applicant is work authorized and has income
at/above 250% FPG.
page 49

3. Applicant has private health insurance (but not
health insurance with premium tax credits).
page 50

Status quo
• INA allows posting bond to
overcome exclusively public charge
inadmissibility.
• Effectively unheard of.
• USCIS does not even have a
procedure.
• Very occasionally used by DOS.

Proposed
regulations
• Minimum $8,100 bond.
• Cash or surety by treasury-certified
agency.
• Duration:
• Become a U.S. citizen;
• Permanently departed the U.S.;
• Died;
• Been an LPR for five years; or
• Changed to a non-immigrant status not
subject to public charge inadmissibility
• Must apply for cancellation.

Public charge bonds, bottom line:
1. Significant new leverage over applicants in
borderline public charge circumstances.
2. Substantial additional financial burden to families
with least resources.
3. Much discretion over implementation.
page 54

#1
File before October 15, 2019 if you can!
page 56

#2
Revise intake and legal services agreement now.
page 57

#3
Do not focus on public benefits to exclusion of other
factors.
page 58

#4
Any case with a joint sponsor will become
problematic
page 59

#5
Help those with limited English language ability and
bad financial planning connect with community
resources
page 60

#6
Educate clients and community on prohibited versus
acceptable programs.
page 61

#7
Remember naturalization and beyond
page 62

Questions?
Comments?
Greg McLawsen
Managing Attorney
Sound Immigration
Twitter: @mclawsen
1-855-809-5115
greg@soundimmigration.com

Understanding the new DHS rule on public charge inadmissibility

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