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The Public Charge Rule: How It Could Affect Your Immigration Case

| Aug 20, 2019 | Immigration Law

Immigrants and advocates across the United States reacted to a recent DHS decision with outrage and concern. In late 2019, the U.S. Department of Homeland Security made the decision to enforce the long-standing public charge inadmissibility law, a decision that could affect thousands of immigrants seeking to enter the United States lawfully. If you are currently in the United States on a visa or you plan on entering the United States in the future as an immigrant, this decision could affect your ability to obtain immigrant status.

2019 Update to the Public Charge Inadmissibility Law

The 2019 decision to enforce the public charge inadmissibility law is widely considered to be part of the government’s overarching plan to reduce legal immigration. While the law is expected to go into effect in mid-October of 2019, it’s likely that this is not the last that we will hear about it. Already, advocacy groups and civil rights organizations have started to band together to find ways to fight the new rule.

As it stands, right now, the law states that DHS will determine whether or not an immigrant (someone seeking to lawfully enter the U.S.) is likely to become a public charge (someone who in the future may rely on and/or seek a public benefit). DHS will then use that information in determining whether or not to approve a visa or green card application. For aliens already in the United States, this information may be used in determining whether or not to award an extension of stay or change of status.

However, the crux of this law is the way in which it changes the definitions of “public charge” and “public benefit.” Public benefits include:

  • SSI
  • Temporary Assistance for Needy Families
  • Section 8 housing assistance
  • Medicaid (except in certain circumstances)
  • Cash benefit programs
  • SNAP
  • Some services provided under the IDEA

A public charge is any immigrant who gets a public benefit for 12 months in any 36-month period. Using two benefits in one month counts as two months. For example, an intending immigration receiving three types of need-based aid could be defined as a public charge in just four months.

Exclusions

There are several exclusions to the enforcement of this rule. Benefits received by those serving in active duty and international adoptees seeking U.S. citizenship do not count towards the 12-month period. Medicaid services extended to pregnant women and people under the age of 21 are not considered public benefits. Immigration programs for refugees, those granted asylum, certain trafficking victims, and victims of criminal activity are not part of the public benefits definition.

What This Means for Your Immigration Case

While the exclusions list seems fairly broad, it is worrisome for many individuals seeking to lawfully immigrate or obtain permanent residency in the United States. First, the idea of denying entry to someone who is likely to become a public charge appears vague and difficult to quantify. Second, it is not clear what type of guidance DHS officials have been given to determine if someone “is likely to become a public charge”. Third, the exceptions rely heavily on an asylum officer and/or an immigration court’s determination on whether or not an individual is a valid asylum seeker or refugee.

Individuals seeking entry to the United States or residents who want to bring family members into the country face substantial hurdles at this time. It’s important to work with an experienced immigration attorney who understands the implications of the new policy changes and knows how to properly advise their clients on what immigration officials are looking for and what steps to take to avoid being found inadmissible to the U.S. Contact our office today to learn more about your options.

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