Earlier this week, the U.S. Supreme Court ruled to allow the U.S. Department of Homeland Security’s (“DHS”) new public charge rule to take effect. Under the Immigration and Nationality Act, an individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. Most notably, the rule expands the type of public benefits to be included when making a public charge inadmissibility determination, including Medicaid, food stamps and housing vouchers, among other types of aid.
The new rule expands the type of public assistance that can be viewed disfavorably in a public charge determination when a foreign national is applying for admission or an adjustment of status. Green card holders absent for more than 180 days can be subject to inadmissibility determinations since they can be regarded as “seeking admission”. The rule also includes a requirement that aliens seeking an extension or stay of change of status demonstrate that they have not received public benefits.
A sufficient affidavit of support will no longer be determinative as to whether an individual is likely at any time in the future to become a public charge. Rather, the U.S. Citizenship and Immigration Services (“USCIS”) will apply a complex totality of circumstances test that weighs the alien’s age; health; family status; education and skills; and assets, resources, and financial status when making the determination.
One heavily weighted negative factor is an applicant’s receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment.
New forms, submission instructions, and Policy Manual guidance will be posted next week, and the rule will go into effect on February 24, 2020. Accordingly, WR recommends filing Forms I-485 and I-129 before this date, wherever possible. Critically, however, DHS will not regard the receipt of specified benefits prior to the rule’s effective date, with the exception of cash assistance and long-term institutionalization benefits that DHS already considers relevant to the public charge determination under current policy. DHS remains enjoined from implementing the rule in the State of Illinois due to pending litigation.
This is a substantial change from over 100 years of public charge determination policy and seeks to limit legal immigration: “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge,” said Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, twisting Emma Lazarus’ famous words on a bronze plaque at the Statue of Liberty.
Wolfsdorf Rosenthal LLP remains at the forefront of U.S. immigration law. If you have questions or concerns about your case or ability to enter or remain in the United States because of this new rule, please contact your WR attorney.
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