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USCIS Implement Final Rule on Public Charge Ground of Inadmissibility

Since 1996, federal laws have stated that aliens generally must be self-sufficient. Indeed, in the Immigration and Nationality Act of 1952 (the INA, or the Act) as amended it is written in Section 212(a)(4) INA(8 U.S.C 1182(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[…]

A public charge is an alien who receives public benefits for more than 12 months in the aggregate in any 36-month period, such that the receipt of two benefits in one month counts as two months. On February 24th, 2020 the U.S. Citizenship and Immigration Services (USCIS) started to implement the inadmissibility on Public Charge Ground final rule. The final rule clarifies the factors considered when determining whether someone is likely at any time in the future to become a public charge, and therefore, ineligible for admission or adjustment of status. These factors are:

  • Aliens seeking immigrant or nonimmigrant visas abroad

  • Aliens seeking admission to the United States on immigrant or nonimmigrant visas

  • Aliens seeking to adjust their status to that of a lawful permanent resident form within the United States

However, certain classes of immigrant are exempt of the public charge ground of inadmissibility rule. For example, refugees, asylees, Afghans and Iraqis with special immigrant visas.

The Department of homeland and Security (DHS) will consider the following public benefits in public charge inadmissibility determinations:

  • 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 program for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)

  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)

  • Section 8 Housing Assistance under the Housing Choice Voucher Program

  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)

  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C 1437 et seq

  • Federally funded Medicaid (with certain exclusions)

DHS will not consider the benefits listed below:

  • The receipt of designated public benefits received by an alien who, at the time of the receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces;

  • The receipt of public benefits by the spouse and children of such service members;

  • Public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431 or INA 322, 8 U.S.C. 1433;

  • The receipt of Medicaid for the treatment of an emergency medical condition;

  • Services or benefits funded by Medicaid but provided under the individuals with Disabilities Education Act;

  • 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;

  • Medicaid benefits received by an alien under 21 years of age; or

  • Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

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 sufficient form I-864, when required under section 212(a)(4)(C) or (D) of the INA. This new rule will make it harder for immigrants to get their green card as the officer will be weighing both the positive and negative factors to determine whether someone is more likely than not at any time in the future to become a public charge.

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