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DHS Final Rule on Public Charge Ground of Inadmissibility

On August 14, 2019, DHS published the Inadmissibility on Public Grounds final rule that codifies regulations governing the application of the public charge inadmissibility ground. The final rule goes into effect on Oct. 15, 2019 and will only be applied to applications and petitions postmarked on or after that date.

The rule applies to applicants for admission, aliens applying for permanent residency, and those seeking to extend or change their nonimmigrant status. 

The final rule does not apply to US citizens, refugees, asylees, Afghans and Iraqis with special immigrant visas, and certain nonimmigrant trafficking and crime victims, VAWA and SIJ applicants, or those with granted waivers.  DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. Most lawful permanent residents are not subject to this rule unless they have been absent from the US for an extended period of time.

In limited circumstances and in USCIS’ discretion, an alien may post a bond and obtain adjustment of status, despite being determined inadmissible on public charge grounds. The final rule sets the minimum bond amount at $8,100; the actual bond amount would be dependent on the alien’s circumstances.

In certain cases, an alien may obtain a waiver of the public charge ground of inadmissibility. 

DHS will only consider these public benefits:   

  • Any federal, state, local, or tribal cash assistance for income maintenance   
  • Supplemental Security Income (SSI) 
  • Temporary Assistance for Needy Families (TANF) 
  • Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)  
  • Supplemental Nutrition Assistance Program (SNAP, or “Food Stamps”) 
  • Section 8 Housing or Rental Assistance and Section 9 Public Housing
  • Medicaid (if federally funded, with certain exclusions) 

DHS will not consider: 

  • Emergency Medicaid  
  • Services or benefits funded by Medicaid but provided under IDEA  
  • School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education
  • Medicaid benefits received by an alien under 21 years of age or by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.   

The officer must weigh both the positive and negative factors when determining whether someone falls into this category. When making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s age; health; family status; assets, resources, and financial status; education and skills; prospective immigration status; expected period of admission; and sufficiency of sponsors’ income, when required.

Negative factors generally weighing heavily in favor of a public charge finding: 

  • The alien is not a full-time student and is authorized to work, but cannot show current employment, recent employment history, or a reasonable prospect of future employment. 
  • The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization, or that will interfere with alien’s ability to provide for him or herself, attend school, or work, and alien is uninsured and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition. 
  • The alien has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.  

Positive factors generally weighing heavily against a public charge finding: 

  • The alien has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250% of the Federal Poverty Guidelines for their household size. 
  • The alien is authorized to work and is currently employed in a legal industry with an annual income of at least 250% of the Federal Poverty Guidelines for a household of alien’s household size. 
  • The alien has private health insurance appropriate for the expected period of admission, and does not receive subsidies in the form of premium tax credits to pay for such health insurance. 

 

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The Law Offices of Connie Kaplan, P.A. offer aggressive and experienced legal representation for immigration cases, with a focus on family immigration and investor visas.

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