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The Public Charge Rule and how it affects individuals in Immigrant and Non Immigrant Population

The Public Charge Rule and how it affects individuals in Immigrant and Non Immigrant Population

Prepared by Pia Dyquiangco, ESQ

 

On Feb. 24, 2020, USCIS implemented the Inadmissibility on Public Charge Grounds final rule nationwide, including in Illinois.

The Purpose:

Self-sufficiency has long been a basic principle of U.S. immigration law since our nation’s earliest immigration statutes. Since the 1800s, Congress has put into statute that aliens are inadmissible to the United States if they are unable to care for themselves without becoming public charges. Since 1996, federal laws have stated that aliens generally must be self-sufficient. On Aug. 14, 2019, DHS published a final rule regarding how DHS determines if someone applying for admission or adjustment of status is likely at any time to become a public charge.  

This final rule also requires aliens seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that, since obtaining the nonimmigrant status they seek to extend to change, they have not received public benefits (as defined in the rule) over the designated threshold. 

 

The Rule on Public Charge:

The new rules require DHS and DOS to consider the totality of the circumstances and make a prospective, forward-looking determination of whether applicants for an immigrant or nonimmigrant visa, applicants for admission to the United States, and applicants for adjustment of status to lawful permanent residence are likely to become a public charge “at any time” in the future. The DHS regulation also introduces a related (but different) public benefits condition for change of status (COS) and extension of stay (EOS) nonimmigrant applicants, who will have to demonstrate that “since obtaining the nonimmigrant status” they seek to extend or change, until the date USCIS adjudicates the COS or EOS application, they have not received one or more of the listed public benefits over the designated duration threshold.”

DHS and DOS will generally only consider public benefits received on or after February 24, 2020 for petitions or applications postmarked on or after that date.

 

Who does the Public Charge Rule apply to:

As a ground of inadmissibility, public charge generally applies when an applicant seeks admission to the United States as a nonimmigrant or as an immigrant based on a family or employer petition. It also applies when an individual applies for adjustment of status through a relative or employer while within the United States.

What is prohibited under the Public Charge Rule:

Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:

(i) Supplemental Security Income (SSI);

(ii) Temporary Assistance for Needy Families (TANF); or

(iii) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);

Supplemental Nutrition Assistance Program (SNAP) (commonly known as “food stamps”);

Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;

Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;

Medicaid under 42 U.S.C. 1396 et seq., except for:

(i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);

(ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);

(iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;

(iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).

Public Housing under section 9 of the U.S. Housing Act of 1937.

Since the outbreak of COVID-19:

USCIS encourages all those, including aliens, with symptoms that resemble Coronavirus Disease 2019 (COVID-19) (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services.  Such treatment or preventive services will not negatively affect any alien as part of a future Public Charge analysis.  

The Inadmissibility on Public Charge Grounds final rule is critical to defending and protecting Americans’ health and its health care resources.  The Public Charge rule does not restrict access to testing, screening, or treatment of communicable diseases, including COVID-19. In addition, the rule does not restrict access to vaccines for children or adults to prevent vaccine-preventable diseases. Importantly, for purposes of a public charge inadmissibility determination, USCIS considers the receipt of public benefits as only one consideration among a number of factors and considerations in the totality of the alien’s circumstances over a period of time with no single factor being outcome determinative.  To address the possibility that some aliens impacted by COVID-19 may be hesitant to seek necessary medical treatment or preventive services, USCIS will neither consider testing, treatment, nor preventative care (including vaccines, if a vaccine becomes available) related to COVID-19 as part of a public charge inadmissibility determination, nor as related to the public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status, even if such treatment is provided or paid for by one or more public benefits, as defined in the rule (e.g. federally funded Medicaid).   

The rule requires USCIS to consider the receipt of certain cash and non-cash public benefits, including those that may be used to obtain testing or treatment for COVID-19 in a public charge inadmissibility determination, and for purposes of a public benefit condition applicable to certain nonimmigrants seeking an extension of stay or change of status.  The list of public benefits considered for this purpose includes most forms of federally funded Medicaid (for those over 21), but does not include CHIP, or State, local, or tribal public health care services/assistance that are not funded by federal Medicaid. In addition, if an alien subject to the public charge ground of inadmissibility lives and works in a jurisdiction where disease prevention methods such as social distancing or quarantine are in place, or where the alien’s employer, school, or university voluntarily shuts down operations to prevent the spread of COVID-19, the alien may submit a statement with his or her application for adjustment of status to explain how such methods or policies have affected the alien as relevant to the factors USCIS must consider in a public charge inadmissibility determination.  For example, if the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation.  To the extent relevant and credible, USCIS will take all such evidence into consideration in the totality of the alien’s circumstances.

So what does this mean:

  • If you exhibit symptoms of the COVID-19 get medical attention no matter if you have insurance or not. This will not affect your immigration status or case.
  • This rule allows you to be tested, screened and treated for any communicable diseases not just COVID-19 and this includes getting vaccines.
  • If you do end up using public benefits such as cash and non-cash, or if you are in a jurisdiction where disease prevention such as social distancing or quarantine are in place, you may submit a statement with your Adjustment of Status Application as to how the COVID-19 policies have affected your life. USCIS will consider this factor.
  • Remember in determining whether an alien is likely to become a public charge, section 212(a)(4)(B)(i) requires that the adjudicator consider the following factors at a minimum: The alien’s –
    • Age;
    • Health;
    • Family status;
    • Assets, resources, and financial status;
    • Education and skills.

If you need guidance on figuring out whether you are subject to the Public Charge Rule, please do not hesitate to reach out to our office for a free consultation. Consultations may be done via phone until further notice. Please set up an appointment by calling 716.249.6584.

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