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USCIS PUBLISHES FINAL RULE ON INADMISSIBILITY ON PUBLIC CHARGE GROUND

  •  USCIS has published the final rule on enforcing public charge inadmissibility law. In
    general, this law talks about the self-sufficiency of an Alien seeking entry into the United
    States either temporarily or permanently. The new public charge rule will come into
    effect at midnight on October 15, 2019, if legal challenges do not delay the
    implementation. Hence, this Rule will apply to the applications filed on or after October
    15, 2019, and not to the ones applied before.

A. What is meant by Public Charge?

  •  Means an individual who is likely to become dependent on the government assistance in
    the form of public cash assistance for income maintenance or receiving long-term care
    from an institution at the government expense.
  • The Rule allows an official to determine the inadmissibility of an individual into the
    United States. Now, inadmissibility can be ascertained at the time of seeking admission
    into the United States or at the time of the adjustment of status. Therefore, if an
    individual is not found inadmissible at the time of seeking entry into the United States,
    will or can likely be found inadmissible at the time of the adjustment of status if he or she
    has received a public benefit for 12 months in aggregate, within 36 months period.
    Hence, if a person receives a public benefit for 12 months in a continuation or if he
    accumulates 12 ‘months’ worth of benefit in 36 months then he or she will be covered
    under this Rule. Getting two different benefits in one month counts as two months. But
    the duration can vary based on the totality of the circumstances.
  • An individual is found to be inadmissible under this Rule, admission into the United
    States or adjustment of status (Obtaining a green card) will not be granted. Benefits used
    by the family members will not be counted against the individual. Most importantly, most
    of the individuals applying for the change of status are not even eligible to avail these
    benefits. Therefore, they are least likely to be affected by this new rule change.
  • The public charge rule will not apply to humanitarian-based refugees, asylees, individuals
    who are victims of domestic violence (VAWA), certain trafficking victims, Special
    immigrant juveniles (SIJ), victims of qualifying criminal activities.

B. The USCIS considers the following factors in determining if an individual will be
covered under the public charge rule or not:

  1.  Age of a person is taken into consideration by the USCIS.
  2. Health condition of the alien or individual.
  3.  Family size.
  4. Family status of the individual, which generally means individuals income and assets.
    Now an individual will be required to furnish a “Declaration of Self-Sufficiency (Form I-
    944)” which is in addition to the affidavit of support from the sponsor (Form I-864).
  5.  Education level.
  6. Skills possessed by the individual, which will help him or her to obtain or maintain
    employment.
  7. Prospective immigration status.
  8. The expected period of admission

C. The Following public benefits are considered at the time of determination of the

public charge.

  1. Cash assistance for income maintenance, such as supplementary security income.
  2. Cash assistance from the Temporary Assistance for Needy Families (TANF).
  3. State or Local cash assistance programs (general assistance).
  4. Medicaid used to support aliens residing in an institution for long term care.
  5. Project-based rental assistance.

Mere receipt of these benefits is not considered as a criterion for inadmissibility, and it varies

from case to case. An individual may also be required to furnish a public charge bond of a
certain amount, varying from an individual to an individual. But the minimum amount set for the
bond is $8,100. Short term institutionalization for rehabilitation is excluded from the public
charge determination.

D. The Following public benefits are excluded from the public charge rule.

Non-cash benefits and special-purpose cash benefits are excluded from the public
charge rule, and these benefits are as follows:

  1. Medicaid and other health insurance and health services (including public assistance for
    immunizations and testing and treatment of symptoms of communicable diseases, use of
    health clinics, short-term rehabilitation services, prenatal care, and emergency medical
    services) other than support for long-term institutional care.
  2. Children’s Health Insurance Program (CHIP).
  3. Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)-commonly referred to as Food Stamps (Under certain circumstances SNAP can be considered for determining the public charge), the Special Supplemental Nutrition
    Program for Women, Infants and Children (WIC), the National School Lunch and School
    Breakfast Program, and other supplementary and emergency food assistance programs.
  4. Housing benefits (But Housing assistance under the housing choice voucher program and
    public housing under Section 9 will be taken into consideration in determining the public
    charge).
  5. Childcare services.
  6. Energy assistance, such as the Low-Income Home Energy Assistance Program
    (LIHEAP).
  7. Emergency disaster relief.
  8. Foster care and adoption assistance.
  9. Educational assistance (such as attending public school), including benefits under the
    Head Start Act and aid for elementary, secondary or higher education.
  10. Job training programs.
  11. In-kind, community-based programs, services or assistance (such as soup kitchens, crisis
    counseling and intervention, and short-term shelter).
  12. Non-cash benefits under TANF such as subsidized child care or transit subsidies.
  13. Cash payments that have been earned, such as Title II Social Security benefits,
    government pensions, and veterans’ benefits, and other forms of earned benefits
  14. Unemployment compensation.

Note: Further, when the purpose of such benefits is not for income maintenance, but
rather to avoid the need for ongoing cash assistance for income maintenance, they are not
subject to public charge consideration.

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