“PUBLIC CHARGE” AND THE DEPARTMENT OF HOMELAND SECURITY’S NEW RULE Washington Coalition On Medicaid Outreach September 20, 2019 – Spokane
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PUBLIC CHARGE: Questions we’ll address 3 What is the Who is subject to a current policy What is “public “public charge” charge?” test for admission about public to the U.S.? charge? What are What would the When will the important “Take - new DHS public new DHS public aways” about charge rule charge rule be in this? change? effect?
PUBLIC CHARGE: Issues not addressed today 4 1. Sponsor liability memo 2. Grounds for Deportation Reasons: • Nothing has changed regarding these at this time. • Watch for news about potential changes. See resources slide.
Getting legal advice 5 The information provided today is based on an analysis of the final public charge rule on inadmissibility. This is not legal advice! Resources to seek legal advice for a specific situation: http://childrensalliance.org/sites/default/files/2019- 08/FINAL%20PIF-WA%20legal%20resources.pdf
What is “public charge?” 6 Under U.S. immigration law, the government can deny admission to the U.S. or deny lawful permanent residence (“green card” or “LPR”) status to a person who is determined “likely at any time to become a public charge.” The purpose of the test was to identify people who may depend on the government as their main source of support. Many categories of people are not subject to this test.
When does “public charge” test apply? 7 • When a person applies for admission to the U.S. (from inside or outside the U.S.) • When a person applies to adjust to lawful Public Charge permanent resident (LPR) status test is applied • When an LPR leaves the U.S. for over 180 typically: continuous days and seeks to reenter.
Who is not subject to the “public charge” test? 8 Lawful Permanent Residents (LPR) applying for citizenship U.S. Armed Forces enlistee/active duty/ready reserve (plus spouses and children) – at time the benefit is received or when applying for admission or adjustment of status “Exempt” immigrants, including: Refugees and Asylees VAWA Self-petitioners T or U visa applicants/holders (Survivors of Domestic Violence, Trafficking, or Other Serious Crimes) Special Immigrant Juveniles Other categories (e.g. paroled into U.S., other humanitarian immigrants)
Currently there are two different tests! 9 2018 guidance Department of State FAM – for adopted now those applying differs from DHS outside of the U.S. policy + rule Public Charge Department of Tests Homeland Security Current policy – for admission applies until at least apps. or LPR apps. October 15 from people within New DHS rule; the U.S. who are not “exempt” lawsuits pending
Longstanding Public Charge Test - 1 10 The definition used until the new rule is effective: A person who is considered “likely to become primarily dependent on the government for subsistence.” Types of public benefits considered are limited to: Cash assistance for income maintenance (SSI, TANF, state cash assistance) Long-term institutional care at government expense
Longstanding Public Charge Test - 2 11 • Age • Health Totality of • Family status Circumstances • Financial status is considered: • Education and skills • Affidavit of support
Longstanding Public Charge Test - 3 12 The current public charge assessment has been forward-looking: • Is the person likely to rely on cash or long-term care in the future? • No one factor (including past use of cash benefits) can alone determine whether or not someone is a “public charge” • Positive factors can be weighed against negative factors
Foreign Affairs Manual (“FAM”) Public Charge test 13 On January 3, 2018, the U.S. Department of State published revised sections of the “FAM” dealing with “public charge.” Applies to people OUTSIDE THE U.S. seeking permission to enter as an immigrant, return as an LPR after 180 day absence from U.S., or on a non- immigrant visa at a U.S. embassy or consulate. Changes regarding treatment affidavit of support; use of non-cash benefits used by applicants, sponsors and family members; ability to pay for medical expenses; education and skills relevant to employment prospects. May be revised again to conform with final DHS rules.
New Public Charge Rule: Overview of Changes TOTALITY OF ADDITIONAL NEW DEFINITION CIRCUMSTANCES BENEFITS New weighted factors Additional public of the totality of A dramatically benefits programs circumstances (TOC) different definition of can be considered by test designed to make public charge immigration officials. it harder for low and moderate income people to pass
What the new DHS public charge rule would change – 15 Issue is whether person is likely to become a public charge at any time in the future – based on - NEW definition of public charge - 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).”
The new DHS rule changes “Totality of Circumstances” (re whether likely to become a public charge in future) 16 Income, Assets, Financial Status • Under 125% FPL (negative), over 250% FPL (heavy positive); benefits (negative) Age • Under 18 or over 61 (negative) Education, Skills, Employment • Includes English proficiency, degrees. If not in school or employed (heavy negative) Health • Condition likely to require extensive treatment or affect ability to care for self, attend school or work, if lack assets or private health insurance(heavy negative) Family Status (“household” size) Affidavit of Support
New public charge rule would change – what benefits are considered 17 Plus- if used (Not new) after 10-15-19 Federal, state, and you were local or tribal not exempt cash assistance from public for income charge at the maintenance time they are used: (Not new) Institutionalizati Public housing Medicaid (with on for Long- SNAP (food and Section 8 important Term at assistance) (vouchers & exceptions – Government project-based) see next slide Expense
New Public Charge – Medicaid programs NOT considered in public charge determinations 18 Services for emergency conditions (AEM) Benefits for children under age 21 Benefits for pregnant women Benefits for women 60 days post pregnancy
New public charge rule – other benefits that do NOT count for public charge decision -- 19 • School-based nutrition Everything services • WIC not listed • tax credits: ACA, EITC on slides • Medicare Part D (“Extra Help,” LIS) assistance above! • State and local non- cash programs Examples - • Benefits received by someone else
New test for some people on non-immigrant visas 20 A new requirement penalizes people with non-immigrant visas who have accessed “listed” benefits for a designated period of time This affects non-immigrants seeking: Extension of their nonimmigrant visas, or Change to another nonimmigrant status (e.g., from student visa to employment visa) This test is different from the “totality of circumstances” test. This group already must have resources to support themselves in U.S.
When will the new DHS public charge rule be in effect? 21 See Resources page Rule effective Date BUT - Litigation may for ways to learn October 15, 2019 delay this date developments
Key Take-Away points on public charge change 22 The rule if and when it goes into effect: • Applies only to applications submitted on or after October 15, 2019. • And litigation may delay or impact the effect of the rule. Not everyone is subject to the rule. • Many immigrants are exempt from the test or not subject to it. Positive factors can be weighed against negative factors in this forward-looking test. • Use of public benefits alone will not make you a public charge.
More Key Take-Away Points 23 Benefits used by family members are not considered. • Benefits used by eligible family members are not counted unless the family members are also applying for a green card. The rule does not consider benefits newly listed as factors if the benefits are used before October 15, 2019 . Every situation is different. • Consult an immigration attorney for questions about your case.
Deportation for public charge is rare: Current grounds 24 This does not apply if you become a public You became a public For reasons that existed charge because of charge within 5 years before you entered the something that of entry to the U.S. U.S. happened after you entered the U.S.
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