Changes to Public Charge: Implications for advocates & - - PowerPoint PPT Presentation

Changes to Public Charge:

Implications for advocates & low-income immigrants November 4, 2019

Session Goals

➔ Understand the status of litigation and the larger network of administrative attacks ➔ Understand the changes to the rule and how they will impact eligibility for status

◆ Impact of expanded “totality of circumstances” balancing test on low-income immigrants ◆ Scope and nature of public benefits impacts

➔ Be able to counsel clients with questions about public charge

Big Picture - developments in litigation

• Highlights in decisions:

○ Rule is likely beyond scope of DHS authority’s & contrary to law ○ Rule may discriminate on basis of disability ○ Rule is likely arbitrary & capricious; no rational basis for new definition ○ Government failed to consider costs to states & localities; failed to account for public health impacts ○ Use of I-944, new I-485, and all related forms enjoined ○ Feds can’t look back to 10/15 if they later prevail, must set new effective date

Big Picture: Web of Administrative Attacks

Restrict Access to Benefits Punish Benefits Use Chill Benefits Use

• Requires immigrant visa

applicants to have private insurance or the funds to pay for any medical costs Final Rule ENJOINED NATIONWIDE

DHS Public Charge Rule

• Applies to green card

apps & visa extensions

• Imposes stricter

requirements based on income & family attributes

• More benefits implicated

Interim Final Rule NOT YET IN EFFECT

DOS Public Charge Rule

• Applies to most visa

applications

• Largely tracks DHS rule
• Currently not being

enforced while forms are developed Goes into effect November 3

Presidential Proclamation

New Form in Effect

Fee Waiver Rule

• Eliminates receipt of

public benefits as a ground for a fee waiver

• New form required as of

December 2, 2019 Not yet proposed/published

DOJ Public Charge Rule

Federal law, not applied universally

Sponsor Deeming & Liability

• Would change the public

charge ground of deportability

• Currently no information
• n content or timeline
• NOT IN FORCE
• Includes sponsor income

in benefits applications

• Sponsor must repay

benefits received

• Enforcement varies

Proposed Rule

HUD Rule

• Would require all public

housing residents to be “qualified aliens”

• Would separate/render

homeless mixed-status families

• Requires all public

housing residents to have qualifying status

• Would separate/render

homeless mixed-status families

Public Charge - Final Rule

REMEMBER: This rule is NOT IN FORCE and is currently enjoined nationwide!! The current, unchanged public charge standard should be applied in all cases

Public Charge Inadmissibility - Key changes

Lowers standard of what the government considers to be a “public charge” Expands programs included in the public charge test Decreases weight of Affidavit of Support while increasing weight of applicant’s income and situation

Adds a public charge condition to visa holders seeking to extend or change their non-immigrant status

1 3 2 4

Public Charge - application

• Though ground of both inadmissibility and deportability, this rule only

concerns inadmissibility

• The public charge ground of inadmissibility applies to green card and

immigrant visa applications, as well as many non-immigrant visa applications

• It does NOT apply to:

○ US Citizens ○ LPRs (unless seeking admission following a trip of +6 months) ○ Statutorily-exempt statuses

Public Charge - definition

“An alien….likely at any time to become a public charge is inadmissible” But who is a public charge?

• Old definition: a person who is primarily dependent on the government
• New definition: a person who receives one or more enumerated benefits

for more than 12 months out of a 36 month period. Therefore, a person who is likely to receive an enumerated benefit for more than 12/36 months in the future is a public charge, and inadmissible.

Public Charge - definition

But how does the government guess the future? They conduct a “totality of the circumstances” balancing test looking at nearly all aspects of your life (including past/present benefit use) to come up with a subjective determination.

• Age
• Health
• Family status
• Assets, resources, and financial status; and
• Education and skills
• + any affidavit of support

Public Charge - exemptions

Certain individuals exempted from rule by statute or regulation:

• See section 212.23 for full enumerated list, includes:

○

Refugees & Asylees during application process and when adjusting

○

Amerasian Immigrants (for their initial admission)

○

Individuals granted relief under the Cuban Adjustment Act, NACARA, HRIFA

○

Individuals applying for T & U visas, and T & U visa holders applying to adjust (exemption clarified in final rule)

○

Special Immigrant Juveniles

○

VAWA self-petitioners

○

Applicants for Temporary Protected Status (TPS)

Public Charge - exemptions

• People in these statuses are exempt from the public charge determination

when they submit their applications, and will not have benefits use while in an exempt status held against them in any subsequent adjustment application

• Public charge inadmissibility also does not apply to:

○ US Citizens ○ LPRs (unless seeking admission after a trip abroad of +6 months)

Public Charge Inadmissibility - Key changes

Lowers standard of what the government considers to be a “public charge” Expands programs included in the public charge test Decreases weight of Affidavit of Support while increasing weight of applicant’s income and situation

Adds a public charge condition to visa holders seeking to extend or change their non-immigrant status

1 3 2 4

Balancing Test

Test remains: totality of circumstances

• Rule reduces weight of affidavits of support to just one of many factors -

meaning that applicants’ age, health, family status, financial status & education/skills will weigh more heavily.

• “Heavily weighted” positive & negative factors are considered alongside all
• ther potential factors

Balancing Test

Age

• Will the person’s age impact their ability to work?

Under 18 Over 61

Balancing Test

Health

• Does the individual have a serious medical condition that might impact ability

to provide for him/herself?

• Will defer to civil surgeon’s medical exam, unless there is
• ther evidence suggesting the report is not complete.

Balancing Test

Family Status

• Does the individual’s household size make him or her more likely to become a

public charge?

• Household:
• Spouse and children if residing with applicant
• Other children or spouse that the applicant is obligated to support (≥50%)
• Any other people listed as dependents on tax return
• Anyone who supports the applicant (≥50%)

Has the applicant applied for, been certified for, or received public benefits listed in the rule?

Benefits Use

• Note that newly-listed benefits only taken into

consideration post-effective date

• Will go into detail in next section

Does the applicant have liabilities?

Liabilities

• Credit score & history
• Mortgages/loans, credit card debt, unpaid

taxes

Does the applicant have assets & resources to cover foreseeable medical costs?

Health Costs

• In particular, as related to conditions that will

interfere with the ability to work, attend school, care for oneself

Is household income over 125% of the federal poverty guidelines?

Income & Assets

• If no, can make up with assets totalling 3-5

times the value

• Tax filings for all household members whose

income included

• Savings, stocks, bonds, real estate, etc.

Balancing Test - Assets, resources, financial status

Balancing Test

Education and Skills

• Does the applicant have adequate education and skills to obtain/maintain lawful

employment at an income sufficient to avoid becoming a public charge? Will look at:

• history of employment (3 yrs tax returns or other credible evidence)
• educational attainment
• ccupational skills, certifications and licenses
• English proficiency
• whether individual is a primary caregiver

Balancing Test

Prospective Immigration Status

• Expected immigration status and period of entry related to person’s ability to

support themselves

Balancing Test

Affidavit of Support

• What is the likelihood that the sponsor would actually provide the applicant financial

support so that the alien does not become a public charge? Will look at:

• sponsor’s income, assets and resources
• sponsor’s relationship to applicant, including whether sponsor lives with applicant
• whether the sponsor has sponsored other people for green cards

Balancing Test

Heavily weighted negative factors:

• Not a full-time student and work-authorized, but no current employment and no

employment history or reasonable prospect of employment

• Receipt (or certification/approval to receive) of one or more public benefits identified

in proposed rule for more than 12 months out of the 36 months prior to the application

• Medical condition that will likely require extensive treatment or rehabilitation or

interfere with ability to work/study, AND is uninsured and no prospect of obtaining private insurance or means of paying for treatment

• Has been previously found inadmissible or deportable based on public charge

Balancing Test

Heavily weighed positive factors:

• Has financial assets, resources, and support (or income) of at least 250% of the

FPG

• Has private, unsubsidized health insurance appropriate for the period of admission

Public Charge Inadmissibility - Key changes

Lowers standard of what the government considers to be a “public charge” Expands programs included in the public charge test Decreases weight of Affidavit of Support while increasing weight of applicant’s income and situation

Adds a public charge condition to visa holders seeking to extend or change their non-immigrant status

1 3 2 4

Expanded list of benefits

• SSI
• TANF
• State/local cash benefit programs for

income maintenance

• Long term institutionalization for care

at government expense

• SSI
• TANF
• State/local cash benefit programs for

income maintenance

• SNAP
• Housing vouchers & project-based

rental assistance (Section 8)

• Public housing (Section 9)
• Non-emergency Medicaid

(exceptions apply)

Expanded list of benefits

MEDICAID

• Only includes federally-funded Medicaid; state-funded Medicaid or
• ther health plans not implicated!

○ Important for people to understand the nature of their coverage

• Exception for pregnant women up to 60 days after birth and children

under 21 y/o

• Exception for emergency Medicaid

Expanded list of benefits

• Amount/duration of benefits:

○ Any past receipt, application or certification/approval of an enumerated benefit may be relevant in the balancing test ○ Only receipt of more than 12 months of benefits out of a 36 month period are “heavily weighted” against an applicant ○ Separate benefits each received for a six month period would count as 12 months of benefits

• Cannot consider newly added benefits that were received before effective

date (date unknown at this point!)

Benefits excluded

Programs excluded from consideration:

• State and local benefits that are not for income maintenance (see,

locally-funded Medicaid)

• Medicaid for children & pregnant women; emergency Medicaid
• Any benefits not enumerated in the rule
• Benefits received by family members, including children
• Benefits received while in a status that is exempt from public charge

Reminder:

Restrict Access to Benefits Punish Benefits Use Chill Benefits Use

Benefits - considerations

• Most immigrants are NOT eligible for these benefits - & those who are

eligible are typically exempt from public charge!!

• Given weight accorded all other factors, unclear that disenrollment would

substantially benefit even the small number of applicants impacted

Federally-funded benefits

• SSI
• TANF
• SNAP
• Public housing + vouchers & project-based rental assistance
• Non-emergency, federally-funded Medicaid (excluding pregnant women & children)

Typically restricted to LPRs (sometimes with a 5 year bar), and individuals whose status/future adjustment will be exempt from public charge. These people have either *already passed* their public charge test, or will in all likelihood never be subjected to it Every case is different, and there could be very limited instances in which a person received these benefits and is later subject to a public charge test. Greatest risk? Lack of clarity about Medicaid benefits

Locally-funded benefits (only cash for income maintenance)

• State/local cash benefit programs for income maintenance

In New York, more expansive eligibility for state-funded benefits potentially puts more people at risk in a public charge analysis Cash assistance has long been a potential public charge trigger - question is how much more stringently will cash assistance be treated under the new rule?

Public Charge Inadmissibility - Key changes

Lowers standard of what the government considers to be a “public charge” Expands programs included in the public charge test Decreases weight of Affidavit of Support while increasing weight of applicant’s income and situation

Adds a public charge condition to visa holders seeking to extend or change their non-immigrant status

1 3 2 4

Nonimmigrant impacts

People in valid nonimmigrant status (e.g. students, tourists, temporary workers) who want to extend their status or change from one non-immigrant status to another non-immigrant status will have to prove that they have not received any of the designated benefits for more than 12 months in the aggregate within a 36-month period.

Retroactivity concerns

• New rule will apply to applications filed on or after the effective date (date

unknown pending outcome of litigation)

• Enumerated benefits received prior to the effective date will be treated

according to the current standard (standard in effect when benefits received)

• Remember: in most cases benefits use will not be relevant because of

limited eligibility for these benefits + exemptions from public charge!

Impacts & Advice

• There are many people who will *not* be impacted

○ People who are not eligible for benefits today ○ People who may not be eligible to adjust status (apply for a green card) in the future ○ People who fall into one of the exempted categories (refugees, asylees, etc.)

• Fear is running high; disenrollments & enrollment dips coincide with public

charge news coverage

• Rule is not in effect now, and will not have retroactive effect
• Possible action to take now: file adjustment soon if possible, to ensure

benefit from current rule

Impacts & Advice

Common & challenging questions:

• Is it safest to disenroll, just in case?
• Is the government monitoring benefits enrollment?
• I’m sponsoring my relative - should I disenroll from my SNAP?

Impacts & Advice - how to respond?

• Remember: it should be very rare that benefits disenrollment is an

appropriate response to the new rule, given small overlap between eligible & non-exempt categories

• Benefits play a crucial role in the health & welfare of communities, and the

self-sufficiency of individuals & families

Resources

NYIC Public Charge One-Pager (will be updated soon)

○ www.thenyic.org/publiccharge

Protecting Immigrant Families (PIF)

○ www.protectingimmigrantfamilies.org

USCIS FAQ

○ USCIS FAQ Webpage

Questions?