Administration Aiming to Restrict Green Card Eligibility for Those on Public Aid

On Saturday, September 22, 2018, the Department of Homeland Security (DHS) formally announced that it intends to introduce a notice of proposed rulemaking titled “Inadmissibility on Public Charge Grounds” to amend the regulations governing “public charge” determinations for individuals applying for U.S. permanent residence (“green cards”). In the notice DHS states that the proposed rule is intended to provide a standard for determining whether an applicant for a green card is likely at any time to become a public charge (e.g., that they will be unable to financially support themselves while in the U.S.) and seeks to provide a more comprehensive framework under which the United States Citizenship and Immigration Service (USCIS) will consider public charge inadmissibility.

U.S. immigration law has long required that individuals applying for green cards be able to demonstrate that they will not become a public charge , and has weighed a number of statutorily required factors in making this determination, such as age, health, family status, assets, resources, financial status, education and skills. While cash benefits including Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid (with limited exceptions for Medicaid benefits paid for an "emergency medical condition," and for certain disability services related to education) are currently considered in the analysis of whether an individual is likely to become a public charge, the new proposed rule would require adjudicators to also consider current or past use of non-cash benefits including Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing above certain thresholds as a heavily weighed negative factor in determining an individual’s eligibility for a green card.

While historically the definition of a “public charge” was considered someone “primarily dependent on the government for subsistence,” under the proposed rule, DHS would start denying green cards and temporary visas to anyone who is deemed likely at any time in the future to receive any of the above-listed government benefits. In addition, to receipt of certain public benefits, the proposed rule states that any of the following factors could become a “negative factor” could supporting a finding by DHS that an applicant is likely to become a public charge:

  1. Prior or current use of certain public benefits.

  2. Being older than 61.

  3. Being younger than 18.

  4. Having any medical condition that could interfere with school or work.

  5. Not having sufficient resources to cover such a medical condition.

  6. Not having private health insurance.

  7. Having several children or other dependents.

  8. Having financial liabilities.

  9. Having “bad credit” or a low credit score.

  10. Having no employment history.

  11. Not having a high school diploma or higher education.

  12. Not having “adequate education and skills” to hold a job.

  13. Not speaking English.

  14. Receiving an application fee waiver from DHS.

  15. Having a sworn financial sponsor whom DHS feels is “unlikely” to follow through.

Individuals able to demonstrate a household income above 250% of the federal poverty guidelines (that’s $41,150 for a family of two) would be able to overcome a public charge finding in certain circumstances.

In terms of screening nonimmigrants for their likelihood to become public charges, the proposed rule directs USCIS to add pertinent questions to several of its immigration forms (including Form I-129 Petitions for Nonimmigrant Workers and Form I-539 Applications to Extend/Change Nonimmigrant Status). Furthermore, USCIS would be required to develop a new form, Form I-944 Declaration of Self-Sufficiency, which can be issued to applicants and beneficiaries requesting immigration benefits, to further screen for public charge concerns.

DHS projects that the proposed rule will impact roughly 382,000 individuals annually and many activists anticipate that the result of the regulation will be that numerous individuals will immediately withdraw from public assistance programs, even where doing so risks losing critical food, shelter, and medical benefits for themselves and potentially U.S. citizen children, for fear that such use will result in them being denied a green card and deported from the United States. Pro-immigration advocates view the new rule as the most recent in a string of adjudication, policy, and other regulatory changes by the Trump Administration aimed at drastically curbing legal immigration to the United States.

DHS expects the proposed rule to be published in the Federal Register in the coming weeks and it will become final after undergoing the 60-day review period.

D&S will continue to monitor the situation and provide updates and additional clarity on the scope of the proposed rule as they become available.