A non-citizen individual who lives in the United States primarily dependent on the US government for subsistence. That is “received cash for the income maintenance from public cash assistance” or “care under the Government expense for long-term” is called a public charge rule.
Public Charge History
Way back in 1800, Congress put on record that foreigners are inadmissible to the United States if they are not able to take care of themselves without becoming public charges. Later in 1996, federal laws stated that foreigners, in general, have to be self-sufficient. Then in 2019, the Department of Homeland Security finalized a rule to find out if a person applying for admission to the United States or adjusting status is likely to become a public charge at any time. The rule also states that foreigners who want to extend their nonimmigrant stay or change their immigration status have to prove that they did not receive any public benefits since getting the non-immigrant status they wish to extend to change.
Changes after the new rule
The Department of Homeland Security has decided to further detail the definition of “public charge.” According to the present rule, applications could be denied without being mainly dependent on the government for subsistence. The new rule mentions that instead of being “more likely than not” to avail public benefits at any time in the future.
Why there is a Public Charge Rule?
With this rule, the federal government can now handle the provisions of the U.S immigration law related to the public charge ground of inadmissibility in a much better way. The rule throws light on the points considered when finding out whether a person is likely to become a public charge at any time in the future, is inadmissible under various sections of the INA and, therefore does not qualify for admission to the U.S or to adjust status.
The rule also mentions that foreigners in the U.S on a non-immigrant visa and who want to extend their stay in the same visa category or want to change their non-immigrant status to another visa category have to prove that they have not received public benefits for more than 12 months totally within any 36 month period after getting the status they want to extend or change. However, the rule does not penalize for past, present, or future receipt of public benefits by U.S. citizens or foreigners who are exempted from the public charge ground of inadmissibility to the U.S.
To Whom Does the Rule Apply?
The final rule applies to those seeking admission to the U.S. and to those who want to [adjust their status] to that of Green Card holders from inside the United States. It also applies to those who want to extend their stay and to change their status to another visa category.
Who is exempted from Public Charge Rule?
- American citizens, though they are related to a non-citizen who is subject to public charge
- Foreigners who were exempted by the Congress from a public charge that includes refugees, asylees, Afghans and Iraqis with special immigrant visas. Others such as victims of certain nonimmigrant trafficking and crime and persons applying through the Violence Against Women Act (VAWA). Special immigrant juveniles and persons who were granted a waiver of public charge inadmissibility by the Department of Homeland Security (DHS) also fall under the exemption category.
What happens to Permanent Residents?
With this new rule, there are chances of many Green Card holders (lawful permanent residents) to get deported. Green card holders can be deported based on public charge within the five years of getting their Green Card. If a person gets a Green Card and then meets with an accident and needs government assistance, such a person will not come under public charge and will not be deported. Earlier, Green Card holders were normally not eligible for welfare.
Hence, very few were deported based on public charge. After the new rule, it looks like the situation is uncertain for many Green Card holders. Persons applying for a Green Card based on getting married to a U.S. citizen are now in a tricky situation. Applicants are offered a fee waiver for low income. But now if this waiver comes under government benefits leading to a public charge count, this spouse of the U.S. citizen can well be deported. However, with no further details about the proposed plan, such instances are not sure to take place.
The Situation for Visa Applicants from Abroad
The new public charge rule is actually issued by the USCIS. The USCIS processes applications filed within the U.S. Visa applicants applying from abroad have to approach the U.S. Consulate in the place where they reside. This process is normally handled by the U.S Department of State. USCIS is a part of the DHS. Though both USCIS and the Department of State followed the same rule, in January 2018, the State Department changed its stance which resulted in a situation where the Consular Officer was given the right to deny an application based on being a public charge.
Points that will favor the applicant :
- The applicant has household income and assets. He/she has resources and support from a sponsor and it excludes income from any form of illegal activity or from public benefits, of at least 250% of the Federal Poverty Guidelines for the applicant’s household size.
- The applicant can legally work in the U.S. and is at present employed in a legal industry with an income of at least 250% of the Federal Poverty Guidelines per annum for a household of the applicant’s household size.
- The applicant has separate private health insurance for the said period of admission, as long as he/she does not receive subsidies such as premium tax credits under the Patient Protection and Affordable Care Act to pay for such insurance.
Points that will go against the applicant:
- The applicant is not a full-time student and can legally work in the U.S but cannot show that he/she is at present employed and neither can the applicant show recent employment history or a prospect of future employment.
- The applicant has received or has been approved to get one or more public benefits for more than 12 months totally within any 36-month period, starting not earlier than 36 months before he/she filed for admission or to adjust status on or after Feb. 24, 2020.
- The applicant has a medical condition that needs extensive medical treatment that will not let him/her attend school or work and he or she is not insured and cannot get private health insurance and does not have the financial resources to pay for the medical costs that are related to a medical condition.
- The applicant was earlier found inadmissible or deportable by an immigration judge or the Board of Immigration Appeals based on public charge grounds.
What happens next?
On February 24, 2020, the Public Charge rule went into effect. But few courts ruled against implementing the Public Charge rule. As the latest on July 29, 2020, a district court in New York ruled against implementing the rule during a time of national crisis with the Covid-19 outbreak.
So the new public charge rule will not be implemented but the USCIS will apply the public charge guidance that was in place before the Public Charge Rule.