Jan 27, 2020, a narrowly divided Supreme Court allowed the Trump administration to begin enforcing a rule making it harder for poor immigrants to gain green cards. The policy in question would expand the government’s view of who can be deemed as a “public charge,” or dependent on public assistance. Ultimately, immigration officials could deny green cards or visas to legal immigrants if they’ve used Medicaid, food stamps or other safety-net programs, or if they’re considered likely to do so.

Who is subject to a public charge determination of inadmissibility? Who makes the determination?

Most aliens applying for an immigrant visa, for admission at a port of entry, or for adjustment to LPR status are subject to a determination of inadmissibility based on public charge grounds.

A public charge determination of inadmissibility typically is made by a USCIS immigration official (when an alien residing in the United States applies for adjustment to LPR status) or by a DOS consular officer (when an alien applies for an immigrant visa abroad to seek admission to the United States as an LPR)

What is considered “public charge” under the new rule?

The public benefits proposed to be designated in the new rule are federal, state, local, or tribal

cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF),

Supplemental Security Income (SSI), Medicaid (with limited exceptions for Medicaid benefits

paid for an “emergency medical condition,” and for certain disability services related to

education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance

Program (SNAP, or food stamps), institutionalization for long-term care at government

expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental

Assistance, and Public Housing. The first three benefits listed above are cash benefits that are

covered under current policy.

Who is exempt from public charge determinations of inadmissibility?

These categories include the following:

• Applicants for refugee status or asylum, as well as refugees and asylees seeking adjustment to LPR status;

• Aliens seeking admission pursuant to the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988;

• Cuban and Haitian entrants seeking admission or adjustment of status as described in the Immigration Reform and Control Act of 1986;

• Nicaraguans and other Central Americans adjusting status as described in the Nicaraguan Adjustment and Central American Relief Act of 1997;

• Victims of certain crimes assisting law enforcement (U-visa applicants);

• Victims of human trafficking assisting law enforcement (T-visa applicants);

• Victims of abuse, abandonment, or neglect by a parent (special immigrant juveniles applying for adjustment of status);

• Syrian asylees adjusting status pursuant to P.L. 106-378;

• certain “aged, blind, or disabled” applicants adjusting status under Section 245A of the INA; and

What factors do officials consider in their determination of inadmissibility based on public charge grounds?

Immigration authorities are required by statute to “at a minimum” consider the following factors when determining whether aliens are inadmissible or ineligible for adjustment of status on public charge grounds: age, health, family status; assets, resources, and financial status; and education and skills. Immigration and consular officers may also consider an affidavit of support submitted by an alien’s petitioner, which may demonstrate that the applicant can rely on the financial support of a sponsor and thus mitigate concerns that the applicant will come to rely upon government-funded assistance. The new rule is proposing to consider current and past receipt of designated public benefits above certain thresholds as a heavily weighed negative factor.  The rule would also make nonimmigrants who receive or are likely to receive designated public benefits above the designated threshold generally ineligible for change of status and

extension of stay.

Our experienced attorneys have years of experience working in immigration law. You may contact Attorney Jing Amy Feng jfeng@fengvisa.com if you have any question.