What Does The New Public Charge Rule Mean For Immigrants?

In early October, the Trump administration published the terms of a proposed change to the public charge rule which governs eligibility criteria for legal immigrants seeking to gain permanent residence within the United States.  According to a statement from current Homeland Security Secretary Kirstjen Nielsen, this revised policy aims to ensure that prospective US residents are capable of supporting themselves financially.

If the new public charge rule is issued without further adjustment, then a significant amount of immigrants would be considered dependent on government assistance. This designation could disqualify hundreds of thousands of applicants from the green card process, and may discourage many low-income immigrant families from accepting benefits altogether.

What Is a Public Charge?

The public charge rule has been in effect since at least 1882. The term is used to identify any immigrant who is likely to become “primarily dependent on the government for subsistence”. In past decades, this general description has led to considerable confusion over which public services counted as benefits. In 1999, Congress issued firm guidelines to define a public charge. Prior to the current proposed rule this definition covered any individual who:

  • Relied on cash welfare programs such as the Temporary Assistance for Needy Families (TANF) or Supplemental Security Income (SSI) to supplement their income.
  • Were collecting welfare payments from State and local programs (typically referred to as General Assistance).
  • Were utilizing non-emergency Medicaid to pay for long-term institutionalized care (nursing facilities, mental health institutions).

Very few immigrants have been denied permanent residency based on this definition as the majority of non-citizens are barred from using these public services in the first place. Before applying for a green card, applicants are generally also required to show financial sponsorship from a US-citizen who can prove that they have sufficient income to prevent the applicant from becoming dependent on government benefits in the future. Currently, this income threshold stands at $20,575 for unmarried couples.

How the New Rule Changes Things

Under the proposed rule, the DHS would widen the judgment of benefits to include an array of non cash benefits including:

  • Non-emergency Medicaid
  • Medicare Part D Low Income Subsidies
  • Supplemental Nutrition Assistance Programs (SNAP, also known as food stamps)
  • Section 8 housing vouchers or project-based rental assistance
  • Public housing

In this case, food stamps and housing assistance are defined as monetizable benefits. The DHS has communicated that if the usage of these benefits exceeds a dollar value of $1812 over a 12-month period of the application then the immigrant will be considered a public charge. The proposal also opens up the possibility that further benefits such as Children’s Health Insurance Programs may be folded into this list, based on public feedback.

This new public charge rule will also changes the judgment criteria for whether an applicant is considered likely to become a public charge in the future. Under proposed determinations, immigrants would be assessed for a variety of factors under a weighted system that balances positive and negative factors over a retrospective 36 month period. Negative factors include:

 

  • Being younger than 18 or older than 63.
  • Having any chronic medical condition that impairs your ability to work.
  • Having a large amount of dependents.
  • A lack of educational qualifications, work experience, or training that would make it difficult for you to gain and maintain employment.
  • Poor credit history and large amounts of debt.
  • Poor English competency.
  • Having a sponsor that is considered inadequate or unlikely to follow through.
  • The use of cash and monetizable benefits over the threshold limits.
  • A household income of 125% below the Federal Poverty Guidelines (income of 250% above the guideline is considered a positive factor).

The Consequences

The published proposal is currently awaiting public comment, after which the DHS must address any substantive feedback before issuing a final rule. But based on the current terms, there are likely to be far-reaching consequences for a number of immigrants.

  • According to the DHS more than 2.5% of immigrants may withdraw from public benefits programs in an effort to qualify for permanent residency. While this would save around $1.5 billion in service costs the result may be increased levels of poverty, disease, and poor health amongst low income immigrant families.
  • The new public charge ruling will also apply to any changes in immigration status, including any applications to convert a student visa to an H1B skilled worker visa. Employers may struggle to ensure that their foreign hires meet the much stricter criteria implemented by the DHS.
  • Under the new income requirements up to 56% of all family-based green card applications could be denied. This would result in the breakup of many families.
  • The role of sponsorship has been effectively minimized.

While the scheduled policy wouldn’t go into effect until at least mid-2019, any immigrants that are seeking to obtain their green cards are advised to begin filing for a change of status as early as possible to avoid any potential difficulties down the line.