Immigration Alert: “Public Charge” Moves Towards More Restrictive Standard

On October 15, 2019, new Regulations go into effect that impact virtually every applicant seeking permanent entry to the United States. The Department of Homeland Security (DHS) has dramatically changed the standard by which it will determine whether an applicant for permanent resident (Green Card) status is qualified and is not “likely at any time to become a Public Charge.” Under this new rule, the test of Public Charge is redefined from “an individual who is primarily dependent on public benefits” to one who may receive a public benefit “for more than twelve months in the aggregate within any thirty six month period”. Individuals who are likely, in the opinion of DHS officers, to become a Public Charge will be excluded from the United States.

In determining Public Charge inadmissibility, adjudicators will apply a complex test that weighs the alien’s age, health, family status, education and skills, as well as assets, resources, and financial status and takes into account a broad range of positive and negative factors. Adjudicators will make a determination whether the applicant is “more likely than not” at any time in the future to receive one or more public benefits, as defined by the new rule. The new rule also includes new definitions for public benefits to include SSI income, Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), and Section 8 Housing.

This DHS final rule, which is more restrictive than current policy, allows adjudicators to make a subjective judgment about qualifications to enter the United States. Previously, an applicant could submit an Affidavit of Support from a family member, other permanent resident, or U.S. Citizen to overcome any question of possible Public Charge. The new rule is expected to change how adjudicators determine who is subject to the Public Charge bar from an objective standard based on Affidavits of Support and income in excess of 25% of the poverty level to a subjective standard based on the totality of the circumstances.

The rule also requires new forms called a “Declaration of Self Sufficiency” for all Green Card filings. These filings will take significant time to complete and will further slow the DHS’s already severely-delayed case processing.

For more information on the new regulations, or to discuss other immigration matters, please contact Joel Pfeffer, Elaina Smiley, or Gary Sanderson. Links to their contact information are included below.

This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.