final rule on public charge

Final rule regarding public charge to be effective from October 14, 2019.

Will a permanent residency application be denied if the applicant has received public benefit from the government?

Recently, the Trump Administration has announced a couple of times that it would change immigration policies regarding public assistance because permanent residency applicants and undocumented aliens have received the “public assistance Now here is the final rule on public charge.

(Thresh hold questions)

What does it mean to “receive” public benefit?

Who has to receive it? Only Alien who is applying for a green card has to receive in his/her name for his own benefit. Final rule makes it clear that alien who receives the public benefit for his USC children is not going to be considered “public benefit” received by alien.

How long do you have to receive? You have to receive more than 12 months for a period of 3 years.

However, it is important to point out that in case of an alien who receives less than 12 months of public benefit, even though he is not considered to have received the public benefit, such a receipt in and of itself is a negative factor when considering the totality of the circumstance of alien, who may likely to receive the public benefit.

What’s public benefit under the final rule?

1. Cash Benefits

SSI (social security supplement income): Cash benefits provided to those who are in extreme poverty. SSI is primarily for US citizens. But only “disabled” or blind LPR are eligible for SSI.
Temporary assistance for needy families (TANF: cash aid only): Temporary cash benefits for needy families

Usually, these cash benefits does not become an issue because they are only available for U.S. citizen for the most part. There is only about 1% of permanent residents and non-permanent resident who receives those benefits.

2. Non Cash benefit

Medicaid
SNAP (food stamp)
Section 8 housing and section 9 public housing: Subsidized public housing

What’s not public benefit under the final rule?

Benefits that are not considered public benefits: education, insurance, and emergency benefits

Education benefits are provided for anybody, regardless of their immigration status, which has been decided by the Supreme Court case. Also, the so-called “Obamacare” insurance subsidy or any medical emergency assistance is not a public assistance.

Medicare part D (low income subsidy for prescription coverage

Benefits granted to children who will soon become a U.S. citizen are not the public assistance either.

When one of parents, or both, becomes a U.S. citizen, a permanent resident child under 18 years old automatically becomes a U.S. citizen, which is the same for adopted children. Any public Benefits granted to those children are not considered the public assistance either.

Public benefit granted to US Arm forces and their families.

Medicaid benefit given to alien who is under the age of 21, pregnant women during the pregnancy and up to 60 days after giving a birth.

Benefits that your U.S. citizen children receive as a U.S. citizen are not the public assistance, but it may adversely affect your permanent residency application.

A number of immigrants or undocumented people receive various government benefits, such as insurance benefits, food stamps, CHIOP and WIC. Recently, a lot of immigration news have been reporting that a permanent residency application may get denied if the applicant has received those benefits. However, those benefits, for most cases, are granted to their U.S. citizen children, which is the same case for white and black families. Therefore, this has not been an issue up until today. I believe that such benefits provided for U.S. children should be protected by the 14th Amendment (Equal Protection Clause) because white and black parents of U.S. citizen children are enjoying those benefits. However, from now on, any permanent residency applicant needs to be careful in deciding whether your U.S. citizen children would receive those benefits because it may have a negative impact on your green card application.

The Proposal will change administrative procedures in a noticeable way. It will definitely make it more difficult.

Even if you have a co-sponsor for your permanent residency application, USCIS thinks that you may receive the public assistance in the future, your application may get denied. So having a sponsor sign the affidavit of support (financial support) was sufficient, but under this final rule, it is just one of positive factors under totality of circumstance.

USCIS will take the following factors into consideration even when you have a sponsor in the totality of circumstance.

USCIS will consider such factors as the applicant’s age, financial ability, health, wealth, education level, job skills, family financial status, credit score, private health insurance, public assistance history for the past 3 years of the application. Although benefits granted to U.S. citizen children are not technically considered as the public assistance, it may, in practice, negatively affect the green application of their parents.

Heavily weighted Native factors:

Lack of employability
Current receipt of one of more public benefit
Receipt of public benefits within 36 months before filing
Lack of private health insurance
Lack of funds to pay for medical costs.

Heavily weighted positive factors:

Alien’s household income is at least 250 percent of the Federal poverty guidelines for the alien’s household size. For an example, in case of alien whose household income for 2 is $20,575 according to the Federal poverty guideline, but alien’s household income is more than $51,437.
The alien’s earning capacity for his employment to make at least 250% of the Federal poverty guidelines for the alien’s household size.
Alien has a private Health insurance.

Minimum bond of $8,100 per person if alien is subjected to public charge.

If the case that applicant may become public charge in the future, applicant become inadmissible and he can overcome inadmissibility by posting bond of minimum $8,100. Once the financial situation of the applicant gets better, he/she make a request to cancel the bond and get the money back. If the applicant receives the public assistance once he becomes an LPR, the government uses his bond money to reimburse the government.

Public charge rules is also applicable to non-immigrant visa application or change of status applicant

For an example, applicant for R-1, E-2, H1b, P-1, or O-1the application may be denied if they have received public benefits more than 12 months during 3 years period.

Here are some practical suggestions in view of final rules on Public charge.

Plan ahead who (either permanent resident or U.S. citizen) can be your financial sponsor.
Prepare at least $8,100 for the public charge bond per person
If your U.S. children receive the public assistance and your petitioner does not have enough income to sponsor you, and you don’t have enough income, try not for your children to receive such assistance more than 12 months within 3 year period prior to your permanent residency application.
When you get your Work permit for you and your family during the adjustment process, try to get a job for you and for your family so that your household income would be at least 250% of the federal poverty guideline for your household size.
Once you get your work permit and social security, try to get private health insurance for you and your family.
When you apply for non-immigrant visas (R-1, H1b, or E-2), make sure that you receive the income more than the required income under the Federal Poverty Guideline. For example, if you apply for R-1 and your household size is 2 (yourself and your spouse), your income should be more than $20,575.
In case of Employment based immigration, make sure that your job, though unskilled, would pay at least amount that exceed the 125% of the federal poverty guideline for your household size.