Public Charge 101 March 2020 ABOUT US The Shriver Center on - - PowerPoint PPT Presentation

Public Charge 101

March 2020

The Shriver Center on Poverty Law fights for economic and racial justice. Over our 50-year history, we have secured hundreds of victories with and for people living in poverty in Illinois and across the country. Today, we litigate, shape policy, and train and convene multi-state networks of lawyers, community leaders, and activists nationwide. Together, we are building a future where all people have equal dignity, respect, and power under the law. Join the fight at povertylaw.org. ABOUT US

Agenda

• Timeline for public charge litigation
• What is public charge?
• Who is subject to the public charge test?
• Effective date of the final rule
• Final public charge rule
• Impact
• Messages
• Resources
• Questions

Timeline

Timeline

Public Charge Final Reg was published August 2019 with an effective date

• f 10-15-19.

Nine lawsuits filed to block implementation Three nationwide injunctions and

• ne Illinois state-
• nly injunction

blocked implementation. By Feb. 22, 2020, all injunctions lifted by US Supreme Court.

Effective date for the rule was 2/24/20 in all 50 states.

Litigation Update

• The Supreme Court’s decisions addressed only whether the

lower courts should have issued the injunctions.

• Legal challenges to both the Dept. of Homeland Security (DHS)

(applications from inside the U.S.) and State Department (DOS) rules (applications from abroad) are ongoing and

• could result in the rule being declared illegal and

unenforceable.

What is public charge?

What are we talking about when we are talking about “public charge”?

• “Public charge” is a Ground of Inadmissibility.
• Grounds of Inadmissibility = reasons that a person could be

denied a green card, visa, or admission into the United States.

• Even though it is called “admission,” someone applying for a

green card could be (and often is) already living in the US.

• Remember, though, not all immigrants are subject to the

Public Charge test! (more to come)

How does the “public charge” test work?

• In deciding whether to grant an applicant a green card
• r a visa, an immigration officer:
• Reviews information submitted by the applicant, and
• Decides whether that person is likely to become dependent on certain

government benefits in the future, which

• Would make them a “public charge” and therefore inadmissible.

Who is making these decisions?

• Decisions about applications for LPR status inside the

U.S., are guided by regulations and policy from the:

• U.S. Citizenship and Immigration Services (USCIS) in the

Department of Homeland Security (DHS).

• Applications for visas and LPR status processed at U.S.

embassies and consular offices outside the U.S. are:

• guided by Department of State (DOS) regulations.

Legal Consequence of Being Determined a “Public Charge”

• If the immigration official determines that a person is likely at any time in

the future to become a public charge, they can:

• deny the person admission to the U.S. or LPR status (or “green card”).
• This means that the person remains out of status or will fall out of status and

therefore be at risk of deportation from the US.

• While some individuals may be able to apply for a green card again in the

future, the past determination will be held against them.

Who is subject to the public charge inadmissibility test?

Which applicants for admission into the U.S. are subject to the public charge inadmissibility rule?

1) Applicants for a visa abroad (DOS rule)—see next slide 2) Nonimmigrants (visa holders) applying for an extension or change

• f status within the United States (new policy under the final rule)

3) Applicants for adjustment of status (applying for legal permanent residence (LPR)--also known as a green card--in the United States 4) LPRs who have been absent from the United States for a continuous period > 180 days could be questioned as to their likelihood of becoming a public charge when they seek reentry.

Let’s look at each….

[1] Public Charge for Immigrants with Applications for visa/LPR status Processed Outside The U.S.

• Decisions are guided by Foreign Affairs Manual (FAM), published by the State

Department (DOS).

• DOS implemented its final rule on public charge beginning on February 24, 2020
• captures information regarding the immigrant visa applicant’s household size and income, assets,

liabilities, education, job skills, health, and receipt of public benefits

• DOS Rule is similar to the DHS rule and has been challenged in court.
• For more information: https://protectingimmigrantfamilies.org/analysis-research/

[2] Non-immigrant visa holders (e.g., students, tourists, and temporary workers):

• Are subject to the public charge test but this does not usually

present a significant barrier.

• Most of these applicants must also establish that they do not

intend to reside permanently in US and have the resources to support themselves while they are here temporarily.

• Must prove they have not accessed certain benefit programs at

the time they apply for an extension or a change of their nonimmigrant status (e.g., from a student to an employment- based visa).

MPI estimates this number as 2.3 million nationally

file:///Users/andreakovach/Downloads/MPI-PublicChargeImmigrationImpact_FinalWeb.pdf

[3] Who is Most Affected by the Public Charge Ground of Inadmissibility and the New Rule?

• Those seeking lawful permanent resident (LPR) status

based on a family relationship.

• These include the spouses, children, and unmarried adult

sons and daughters of a U.S. citizen or LPR and the parents, siblings, and married sons and daughters of a U.S. citizen.

DHS FY17: of the 1.2 M granted LPR status, 748K did so based on a family relationship. Source: https://www.dhs.gov/immigration-statistics/yearbook/2017/table6

[3] (Continued) Example: For Green Card/LPR applications inside the U.S.

Rosa will be assessed under the DHS Public Charge test

• Rosa entered the U.S. on a

visa; she meets and marries a U.S. citizen.

• Rosa then applies for a

green card through the family immigration pathway via her U.S. citizen spouse.

[4] Will this rule affect immigrants who are already green card holders or U.S. citizens?

• The rule does not affect individuals who have already become U.S. citizens
• LPRs also are not subject to a public charge inadmissibility determination when

they apply to renew their green card or when they apply to become a U.S. citizen

• Conditional residents are not subject to the public charge ground of

inadmissibility when they apply at the two-year stage to remove the conditions (Form I-751).

• LPRs who have been absent from the United States for a continuous period >

180 days could be questioned as to their likelihood of becoming a public charge when they seek reentry and should talk with an immigration attorney prior to leaving the US.

Non-citizens who are not subject to the public charge ground of inadmissibility and thus not affected by this rule:

• Refugee applicants and refugees who are applying for adjustment of

status

• Asylum applicants and asylees who are applying for adjustment of

status

• Applicants for withholding of removal or relief under the Convention

Against Torture

• Applicants for initial or re-registration of Temporary Protected Status

(TPS)

• Applicants for initial or renewal of Deferred Action for Childhood

Arrivals (DACA) status

• Cubans who are applying for adjustment of status under the Cuban

Adjustment Act

• Amerasians who are applying for adjustment of status
• Afghan and Iraqi interpreters and translators who are applying for

special immigrant visas (SIV)

• Applicants for Special Immigrant Juveniles Status (SIJS)
• Victims of certain crimes who are applying for a U nonimmigrant visa or

U visa holders applying for adjustment of status

• Victims of trafficking who are applying for a T nonimmigrant

visa; T visa recipients who are applying for adjustment of status no longer have to seek a waiver of public charge inadmissibility

• Victims of domestic violence who are applying for relief

under the Violence Against Women Act (VAWA), including approved self-petitioners who are applying for adjustment of status

• Applicants for “registry” based on their having resided in the

United States since before January 1, 1972

• Applicants for benefits under the Nicaraguan Adjustment and

Central American Relief Act (NACARA)

• Applicants for benefits under the Haitian Relief and

Immigrant Fairness Act (HRIFA)

• Lautenberg parolees who are applying for adjustment of

status.

A complete list is set forth at 8 CFR §212.23(a).

Does public charge apply to DACA recipients?

• There is no public charge assessment when a person renews their

DACA.

• However, DACA recipients are not exempt from public charge.
• If a DACA recipient obtained a pathway to becoming an LPR, such

as by marrying a U.S. citizen, they would be subject to a public charge assessment (unless the pathway were itself exempt, such as a U visa).

When does the public charge test take effect?

USCIS stated effective dates:

• “We will apply the final rule only

to applications and petitions postmarked (or, if applicable, submitted electronically) on or after Feb. 24, 2020.”

• If before Feb. 24, 2020:

assessed under the prior policy, the 1999 Interim Field Guidance.

Rosa

Ø If Rosa submitted her LPR application prior to 2/24/20, it is assessed under the 1999 test Ø If Rosa submitted her LPR Application on or after 2/24/20, it is assessed under Final Rule that went into effect 2/24/20

What is the public charge inadmissibility test?

Public Charge Definition in the Final Rule

• A public charge is a person who “receives one or more

public benefit… for more than 12 months in the aggregate within any 36-month period

• (such that, for instance, receipt of two benefits in one

month counts as two months).” 8 CFR §212.21(b)

Public Charge Definition in the Final Rule

• The Public Charge Test look at the factors set forth in the statute

and based on current characteristics, immigration officials will predict the LPR applicant’s likelihood of becoming a public charge at any time in the future based on the “totality of the circumstances,” (which are on next slide).

Protectingimmigrantfamilies.org

Totality of the Circumstances Test in the Rule

Factors in the TOC Test Age Family Status Education & Skills Health Financial Status/Asset and Resources

Sponsor’s Affidavit of Support is no longer given great weight; it is just one of many factors.

• The Rule considers whether the sponsor is likely to support

the individual, based on:

• Relationship to the immigrant
• Whether the sponsor is residing in the same household

as the applicant

• Whether the sponsor has sponsored others too

New standards and evidentiary requirements to the TOC test

• Age: consider whether the applicant’s age will

impact ability to work;

• Negatively weighs persons who are younger

than 18 or older than 61.

• Positively weighs persons between the ages
• f 18 and 62.

Final Public Charge Rule: Totality of the Circumstances Test

• Family Status:
• An applicant’s household size, including immediate family members as

well as anyone else to whom the applicant provides at least half of their support, or who provides the applicant with half of their support.

• Larger households are disfavored unless ample proof of financial

support.

Final Public Charge Rule: Totality of the Circumstances Test

Education and Skills:

• Whether the applicant has adequate education and skills to obtain or maintain

employment with an income sufficient to avoid becoming a public charge. It considers whether the person has:

• A history of employment (e.g. 3 years of tax returns)
• A high school degree or higher education, occupational skills, certificates or

licenses

• Proficiency in English or in other languages in addition to English
• A role as the primary caretaker of someone in the household who is a child,

senior, or a person who is ill or who has disabilities.

Final Public Charge Rule: Totality of the Circumstances Test

Health

• Whether the non-citizen has health conditions that could require extensive treatment in

the future, or that could affect a person’s ability to work, attend school, or care for

• neself.
• If the non-citizen has such a condition and does not have access to private health

insurance or other resources to pay for treatment, it will be weighed as heavily negative.

• “Disability” is considered here “to the extent such disability makes the alien more likely

than not to become a public charge”

Final Public Charge Rule: TOC Test Continued

• Income and Financial Status
• Household income: under 125% FPL ($32,750 for a family of four) (negative);
• Household assets;
• Credit history/score: applicants who do not have a credit report or score must

submit a statement from one of the three agencies verifying that they do not have

• ne;
• Use of or applications for public benefits;
• Fee waivers received on or after 2/24/20 and for immigration programs that are

subject to the public charge ground of inadmissibility.

Final Public Charge Rule: TOC Test Continued

• **Medicaid
• Supplemental Nutrition and Assistance

Program (SNAP or food stamps)

• Section 8 Housing Choice Voucher

Program

• Section 8 Project-Based Rental

Assistance, and

• Public Housing

Public Benefits Assessed in the Rule

Exceptions on Next Slide

• Supplemental Security

Income (SSI)

• Temporary Assistance to

Needy Families (TANF)

• State or local general relief
• r general assistance, and
• Institutionalization for long-

term care. Prior List of Benefits Are Still Included in New Test

Medicaid Benefits specifically exempted from the public charge test:

Exempted from public charge test

Medicaid for children up to age 21 (includes the All Kids program, EPSDT) Medicaid for pregnant women including for 60 days after the pregnancy ends (Moms & Babies program) Emergency Medicaid Federal Medicaid for services under the Individuals with Disabilities Education Act Federal Medicaid for “school-based benefits or services” for secondary education

Example: putting it all together

Rosa

• Immigration Officials assess Rosa’s current
• age,
• health,
• family status,
• income and assets (including application/use of those 9 included benefits by Rosa)
• skills and education
• Make a prediction:
• whether at any time in the future, Rosa would be likely to “receive one or more

public benefit… for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”

How will immigration officials know this information? New I-944 form: Declaration of Self- Sufficiency

• The applicant will be required to submit much of the information

required for the public charge test in the new:

• Form I-944, Declaration of Self-Sufficiency.
• This includes information to prove up the totality of the

circumstances’ factors (including application/denial/use of public benefits).

• The applicant “must submit this form with Form I-485, Application

to Register Permanent Residence or Adjust Status, to demonstrate that you are not inadmissible based on the public charge ground.”

How will Immigration Officials Get the Information?

Received, applied for, denied, certified for

How will Immigration Officials Get the Information?

Medicaid Benefits specifically exempted from the public charge test:

Exempted from public charge test

Still needs to be included on I-944? Medicaid for children up to age 21 (includes the All Kids program, EPSDT)

YES

And documented by IDHS

Medicaid for pregnant women including for 60 days after the pregnancy ends (Moms & Babies program) Emergency Medicaid Federal Medicaid for services under the Individuals with Disabilities Education Act Federal Medicaid for “school-based benefits or services” for secondary education

How will Immigration Officials Get the Information?

Benefits/Programs Excluded from the Public Charge Test:

• WIC
• EITC
• LIHEAP
• Public benefits received while in a status that is exempt from the

public charge ground of admissibility or received a waiver of the public charge inadmissibility ground

• Public benefits received by children being adopted internationally

by U.S. citizen parents

• State and Local Public Health Programs
• AIDS Drug Assistance Program (ADAP);
• Public benefits received by immigrant who at time of receipt is enlisted n U.S. Armed

Forces serving in active duty or in the Ready Reserve (or is a spouse or child of such service member).

• School lunch programs including National School Lunch Act (NSLP) [at 41389]
• Medicare Part D Low-income Subsidies– Extra Help
• At 41386: “DHS also notes that it has not designated any other aspect of Medicare

for consideration in the public charge inadmissibility determination. however, any receive [sic] of Medicaid as a subsidy for Medicare would be considered receipt of a public benefit in the public charge inadmissibility determination”

More Benefits/Programs Excluded from the Public Charge Test:

• Social Security retirement benefits
• Head Start
• Healthy Start
• Pell grants and student aid programs
• Disaster relief programs

Even More Benefits/Programs Excluded from the Public Charge Test:

Are advance premium tax credits (subsidies) under the Affordable Care Act counted in the public charge test?

• Receipt of these subsidies are not counted as receipt of a public

benefit.

• And having subsidized health coverage under the ACA or other

private health insurance can help overcome a negative weight based on a person’s health condition.

• But, only private insurance without subsidies is weighed as a

heavily positive factor.

Benefits eligible immigrants who may also be subject to public charge grounds of inadmissibility?

Although most immigrants who are eligible for the listed public benefits are not subject to public charge test, a smaller group of individuals are & could be penalized for using benefits for which they are eligible.

• For instance, LPRs who leave the U.S. for more than 6 months

and attempt to re-enter the country can be subject to an inadmissibility determination, which could include a public charge test.

Subject to the Public Charge Test and Eligible for the Benefit

Program Included in the Test

Subject to the Test and Eligible for the Benefit

ACA Adult Medicaid/Family Care

LPRs who met 5-year bar & who left US for > 180 days; Some people granted parole, withholding

• f removal, and a small subset of Cuban/Haitian entrants may have a pathway to permanent

status (such as a family-based petition) that subjects them to public charge

AABD

See above

Federal housing programs

See above plus Some people granted parole or withholding of removal are eligible for housing programs and may be subject to public charge if they seek lawful permanent resident status through, e.g. a family-based visa

• petition. Citizens of Micronesia, Marshall Islands or Palau could be subject to public charge determinations if

they leave the U.S. and attempt to reenter, or if they seek a green card through a family-based visa petition or another pathway where public charge is applied.

Federal SNAP

See above plus some members of the Hmong and Lao communities that helped the U.S. during the Vietnam War may be subject to a public charge test if they seek status through, e.g. a family- based visa petition.

Can a person be determined a “public charge” and not use public benefits? Yes.

• An applicant does not need to have received public benefits in the

past to be determined a pubic charge.

• While receipt of certain public benefits is part of the Totality of

the Circumstances factors (Age, Health, Education & Skills, Financial Status, Family Status, Asset and Resources), most findings of inadmissibility under this new rule will likely not be based on the applicant’s current receipt of public benefits.

Example: Can a person be determined a “public charge” and not use public benefits? Yes.

Rosa Rosa (as a LPR applicant who entered U.S. on a visa) was

• Rosa was ineligible for federal Medicaid

such as ACA Adult/FamilyCare (except she could have been eligible for Moms & Babies if pregnant and otherwise eligible),

• & ineligible for SNAP, TANF, public housing

if Rosa has:

• household income <125% FPL,
• a medical condition needing treatment
• low English proficiency,
• low credit score,
• Poor credit history
• (more negative factors than positive)

she could still be determined a public

• charge. We don’t know for sure; we need

To see how final rule is implemented by Federal immigration officials.

And Yet…

Public Benefits Received By LPR Applicant’s Family Members

• Immigration officials will only consider public benefits received

directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit.

• will not consider public benefits received on behalf of another as a legal

guardian or under power of attorney for such a person.

• will not attribute receipt of a public benefit by one or more members of

the applicant’s household to the applicant, unless the applicant is also a listed beneficiary of the public benefit.

Example

Rosa has two U.S. citizen children with her U.S. citizen

• spouse. Both of her children are enrolled in All Kids and
• SNAP. Rosa completed her child’s SNAP application.
• Rosa submitted her LPR application on or after 2/24/20; it is

assessed under DHS Final Rule that went into effect 2/24/20.

• Immigration officials will not consider the use of benefits by

her U.S. citizen children and she will not have to report their use of benefits on the I-944 form

Impact

Impact of Public Charge Inadmissibility Rule: Direct and Indirect Effects

• Directly affected individuals (certain green card applicants and visa

applicants)

• Broader population of people subject to “chilling effect”
• Fear extends to people who are not subject to public charge
• Fear extends to benefits not considered in public charge test

Which categories of immigrants are eligible for the programs in the rule, and also potentially subject to public charge grounds of inadmissibility?

• Largest Category of Directly Impacted and eligible for public benefits

included in the test:

• LPRs who leave the U.S. for more than 6 months and attempt to re-enter the

country can be subject to an inadmissibility determination, which could include a public charge test.

Directly Impacted will need to complete the I-944: Need to Report and Prove Up Use of Exempt Programs too

• Emergency Medicaid
• Moms & Babies
• All Kids (except if solely state-funded)
• IDEA services
• School-based services

Documentation from IDHS/HFS to satisfy I-944

• IDHS working group in order to ensure proper

documentation for use/denial/application of benefits included and exempted (Medicaid exceptions) in the final rule

• Stay tuned!

Disproportionate Impact on Immigrants of Color

• MPI 2018 study:

https://www.migrationpolicy.org/news/chilling-effects-us- public-charge-rule-commentary

• Shift in the origins of immigrants granted green card, away

from the origins of Mexico and Central America—most likely to have the negative factors set out in the rule

• Shift towards other regions especially Europe

Disproportionate Impact

• Women
• Children
• Older Adults
• Source: https://www.migrationpolicy.org/research/impact-

dhs-public-charge-rule-immigration

Chilling Effect

• According to a December 2018 nationwide survey,
• about one in seven adults in immigrant families

reported a chilling effect where individuals did not participate in a government program for fear of risking future green card status.

Messages

Key Messages: Fight Fear with Facts!

• The public charge test does not apply to all immigrants -

there are many exemptions to DHS’ rules.

• Most immigrants who are subject to public charge are not

eligible for the benefits that count under the rule, and many benefits are not considered in the public charge assessment.

• Only benefits used by the applicant for LPR status are

considered in the public charge test, not benefits used by their family members.

Will I be determined a public charge if I use public benefits included in the rule?

• The public charge statute — which cannot be changed by regulations — requires

immigration officials to look at all factors that relate to ability to support oneself, (age, health, income, assets, resources, education/skills, family members they support, and family who will support them, signed affidavit of support).

• Since the test looks at the person’s overall circumstances prospectively, no one

factor is definitive.

• Any negative factor, can be overcome by positive factors,
• such as having completed training for a new profession or having college-educated children who

will help support the family.

• Thus, use of public benefits will not automatically make one a public charge, and the

applicant can present the best case for him/herself.

Messages for Healthcare Provider Staff

• Hospital financial assistance programs are not included in the public charge

test and do not need to be reported on the I-944 form.

• Use of health care at the hospital is not included in the public charge test.
• Any information patients share with hospital staff is protected by state and

federal law.

• Staff can connect with community organizations that can provide additional

information and help answer questions you may have (see resources later)

COVID-19

• Immigrants who seek care at an ER may be eligible for Emergency

Medicaid and the hospital may ask the immigrant to apply for it.

• The public charge test does not consider the use or receipt of

emergency Medicaid.

• That means that use or receipt of emergency Medicaid is not a negative factor

in the public charge test.

• Those low-income uninsured immigrants who do not qualify for

emergency Medicaid (for example, their income is too high) may still qualify for hospital charity care programs.

• Receipt of charity care is not a negative factor in the public charge test.

COVID-19 continued again

• Care provided by FQHCs or community health centers is not a negative factor in the public

charge test.

• Services provided by public health departments is not a negative factor in the public charge

test.

• Use of Medicaid--such as the All Kids program or school-based health services--by U.S.

citizen children will NOT be factors in their parent’s public charge determination.

• For those seeking coronavirus (COVID-19) information in other languages, please refer to

the resources World Relief link below, listed by source and then alphabetically by language, starting with English: https://worldreliefdupageaurora.org/covid-19-resources

• The Illinois Department of Public Health has a statewide COVID-19 hotline and website to

answer any questions from the public or to report a suspected case: call 1-800-889-3931 or visit IDPH.illinois.gov.

Resources

Protecting Immigrant Families-Illinois (PIF-IL)

Steering Committee Members:

Convened By: ICIRR, Latino Policy Forum, Legal Council for Health Justice, Shriver Center on Poverty Law

• AIDS Foundation of Chicago
• Asian Human Services
• Catholic Diocese of Joliet
• Elevate Energy
• Erie Family Health Center
• Greater Chicago Food Depository
• Health & Medicine Policy Research Group
• Healthy Illinois Campaign
• Housing Action Illinois
• Illinois Coalition for Immigrant and Refugee Rights (ICIRR)
• Illinois Chapter of the American Academy of Pediatrics
• Legal Aid Society of Metropolitan Family Services
• Legal Council for Health Justice
• National Immigrant Justice Center
• Shriver Center on Poverty Law
• The DuPage Federation
• The Latino Policy Forum
• The Ounce of Prevention Fund
• YMCA of Champaign

65 Grass tops, Provider-facing, and Community- facing education Webinars on Public Charge Growing and Formalizing the Coalition Press Briefing & legislator Briefing City of Chicago & Cook County Board Resolutions Organizing for robust comment volume Two Press Conferences, Vigil

pifillinois@povertylaw.org

Protectingimmigrantfamiliesillinois.org

PIF-IL NEW WEBSITE!!!

HelpHub Can Help!

HelpHub will directly link you to experts on health care (Medicaid, Marketplace), public benefits, tax implications of Obamacare, immigrant eligibility, public charge, legal aid issues and more so that you can help your clients/community members. HelpHub is a way to highlight problems and issues you are seeing in your community with regard to health care access, including public charge. Also, it serves as a feedback loop to state and federal government. HelpHub connects you to others working on similar issues across the state. You can also post events and resources to share.

How Do I Sign Up for HelpHub?

16

http://helphub.povertylaw.org

Click Here!

How To Ask a Question on HelpHub

7

• 1. Click “Ask” to

type your question

• 2. Select tags
• 3. An expert or other

assister will answer

Resources

• Individuals who expect to apply for a visa or lawful

permanent resident status should consult an immigration lawyer. To find help in your area, visit immigrationadvocates.org/nonprofit/legaldirectory

• Immigrant Family Resource Program:

https://www.icirr.org/ifrp

Resources continued

• https://getcareillinois.org/
• Community facing
• Available in 5 languages
• Will help you get healthcare coverage if you need it.
• If you already have healthcare coverage, this site

will help you understand how to use your coverage to go to the doctor.

Thank you! pifillinois@povertylaw.org

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