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Proposed Change to Public Charge Ground of Inadmissibility

On Sept. 22, 2018 the U.S. Department of Homeland Security  posted an advance copy of the Notice of Proposed Rulemaking  related to the public charge ground of inadmissibility. So far the Notice has not been published in the Federal Register.

It would give enormous discretion to US Citizenship and Immigration Services (USCIS) officers to reject an immigrant’s application for admission, or for adjustment of status, based on the officer's subjective evaluation whether immigrant will make enough money to support a large family or doesn’t have the resources to provide health care for a preexisting condition. The government does not plan to count against an immigrant any benefits used before the rule went into effect.

This rule would not impact groups of aliens that Congress specifically exempted from the public charge ground of inadmissibility, such as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles. Additionally, the rule excludes consideration of benefits received by U.S. citizen children of aliens who will acquire citizenship under either section 320 or 322 of the INA, and by alien service members of the U.S. Armed Forces.

Under INA 212(a)(4) any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

Factors to be taken into account.

(i)   In determining whether an alien is  excludable  the alien's

  • age;
  • health;
  • family status;
  • assets, resources, and financial status;
  • education and skills;
  • any affidavit of support.

Designated public benefits that can lead to the public charge inadmissibility

  • Cash assistance for income maintenance,
  • Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education),
  • Medicare Part D Low Income Subsidy,
  • the Supplemental Nutrition Assistance Program (SNAP, or food stamps),
  • any benefit provided for institutionalization for long-term care at government expense,
  • Section 8 Housing Choice Voucher Program,
  • Section 8 Project-Based Rental Assistance, and Public Housing.

thresholds for determining whether the person becomes a public charge

(1) Benefits that can be monetized easily (cash benefits, SNAP or food stamps, and Section 8 vouchers and rental assistance) is 15 percent of the Federal Poverty Guidelines (FPG) for a household of one within any period of 12 consecutive months, based on the per-month FPG for the months during which the benefits are received.

  • Poverty Guidelines (Form I-864P), provides current minimum income requirements for use in completing Form I-864. The sponsor must prove they can support the relative by providing documentation that their income is 125% above the mandated poverty line for their family, including the sponsor and all other sponsored family members. The sponsor should complete an I-864 Affidavit of Support when the relative has been scheduled for an immigrant visa interview with a consular officer overseas or when the relative is about to submit an application for adjustment to permanent resident status with the USCIS or with an Immigration Court in the United *48 States except for Alaska and Hawaii State.
Sponsor’s Household Size100% of HHS Poverty Guidelines for 2018125% of HHS Poverty Guidelines*
For sponsors on active duty in the U.S. armed forces who are petitioning for their spouse or childFor all other sponsors
2$16,460$20,575
3$20,780$25,975
4$25, 100$31,375
5$29,420$36,775
6$33,740$42,175
7$38,060$47,575
8$42,380$52, 975
Add $4,320 for each additional personAdd $5,400 for each additional person

For 2018, the equivalent 15 percent of the FPG dollar value is $1,821. As a result, under the proposed rule, if DHS determines that within any period of 12 consecutive months, an individual is likely to receive these “monetizable” benefits in a cumulative amount above the threshold, DHS would consider the alien inadmissible and ineligible for adjustment of status on public charge grounds.

(2) The proposed threshold for those benefits that cannot be monetized easily (Medicaid, the Medicare Part D Low Income Subsidy, and Public Housing) is receipt of such benefits for more than 12 months in the aggregate within a 36-month period (such that, for instance, receipt of two non-monetizable benefits in one month counts as two months).  As a result, under the proposed rule, if DHS determines that in any 36-month period in the future, an individual is likely to receive these “non-monetizable” benefits for a cumulative duration above the threshold, DHS would consider the alien inadmissible and ineligible for adjustment of status on public charge grounds.

(3) A person would be considered likely to become a public charge if he or she is likely to receive a monetizable benefit below the threshold, plus one or more non-monetizable benefits for longer than 9 months.

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