PUBLIC CHARGE AND THE DEPARTMENT OF HOMELAND SECURITYS NEW RULE - - PowerPoint PPT Presentation

“PUBLIC CHARGE” AND THE DEPARTMENT OF HOMELAND SECURITY’S NEW RULE Washington Coalition On Medicaid Outreach

September 20, 2019 – Spokane

Northwest Health Law Advocates (https://nohla.org/)

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Northwest Health Law Advocates (NoHLA) is a public interest legal organization that works to improve access to health care. NoHLA advocates for health care consumers, focusing on issues of concern to low- income and vulnerable populations in its policy and legal analysis, community education, and systemic

• advocacy. NoHLA's mission is to achieve a health

care system in which all individuals receive quality, affordable health care, provided on an equitable and timely basis, and are assured of basic rights and protections. Join our mailing list

PUBLIC CHARGE: Questions we’ll address

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What is “public charge?” Who is subject to a “public charge” test for admission to the U.S.?

What is the current policy about public charge? What would the new DHS public charge rule change? When will the new DHS public charge rule be in effect? What are important “Take- aways” about this?

PUBLIC CHARGE: Issues not addressed today

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• 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

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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?”

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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

• n the government as their main source of support.

Many categories of people are not subject to this test.

When does “public charge” test apply?

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Public Charge test is applied typically:

• 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

permanent resident (LPR) status

• When an LPR leaves the U.S. for over 180

continuous days and seeks to reenter.

Who is not subject to the “public charge” test?

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 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!

Public Charge Tests

Department of State FAM – for those applying

• utside of the U.S.

Department of Homeland Security – for admission

• apps. or LPR apps.

from people within the U.S. who are not “exempt” Current policy applies until at least October 15 New DHS rule; lawsuits pending

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2018 guidance adopted now differs from DHS policy + rule

Longstanding Public Charge Test - 1

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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

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• Age
• Health
• Family status
• Financial status
• Education and skills
• Affidavit of support

Totality of Circumstances is considered:

Longstanding Public Charge Test - 3

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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

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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

ADDITIONAL BENEFITS

Additional public benefits programs can be considered by immigration officials.

NEW DEFINITION

New weighted factors

• f the totality of

circumstances (TOC) test designed to make it harder for low and moderate income people to pass A dramatically different definition of public charge

TOTALITY OF CIRCUMSTANCES

What the new DHS public charge rule would change –

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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)

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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

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(Not new) Federal, state, local or tribal cash assistance for income maintenance (Not new) Institutionalizati

• n for Long-

Term at Government Expense Plus- if used after 10-15-19 and you were not exempt from public charge at the time they are used: Medicaid (with important exceptions – see next slide SNAP (food assistance) Public housing and Section 8 (vouchers & project-based)

New Public Charge – Medicaid programs NOT considered in public charge determinations

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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 --

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Everything not listed

• n slides

above! Examples -

• School-based nutrition

services

• WIC
• tax credits: ACA, EITC
• Medicare Part D (“Extra

Help,” LIS) assistance

• State and local non-

cash programs

• Benefits received by

someone else

New test for some people on non-immigrant visas

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 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?

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Rule effective Date October 15, 2019 BUT - Litigation may delay this date See Resources page for ways to learn developments

Key Take-Away points on public charge change

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• 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

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 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

You became a public charge within 5 years

• f entry to the U.S.

For reasons that existed before you entered the U.S. This does not apply if you become a public charge because of something that happened after you entered the U.S.

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Important messages

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 Most people who are eligible for the listed benefit programs

– are not subject to public charge determinations.

 Some policies proposed earlier (e.g. considering benefits of

family members such as citizen children) were NOT adopted.

 People who are eligible for benefits and who need them to

stabilize themselves and their families may forego benefits unnecessarily - out of fear.

 People need accurate information to stop that. See Resources.

Examples of people who may be at risk from the new rule - 1

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 All benefit programs: LPRs who leave the U.S. for more than 180

days on return may be subject to public charge on return

 Medicaid/SNAP: Some people granted parole, withholding of

removal, + some Cuban/Haitian entrants may have a pathway (e.g. family-based petition) to permanent status subject to public charge

 SNAP: Some Hmong and Lao people who helped U.S. during Vietnam

War may be subject to the test if they seek status through family- based visa petition.

Examples of people who may be at risk from the new rule - 2

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 Public Housing/Section 8:

• Some people granted parole or withholding of removal are eligible for

housing programs and may be subject to public charge if they seek LPR 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

• r if they seek a green card through a family-based visa petition (or any

pathway where public charge applies)

Those at risk should seek legal advice from an immigration

• attorney. See Resources.

RESOURCES

 Federal Register – “Preamble” and text of final rule -

https://www.federalregister.gov/documents/2018/10/10/2018-21106/inadmissibility-on-public- charge-grounds

 Protecting Immigrant Families – National Campaign - https://protectingimmigrantfamilies.org/  Protecting Immigrant Families – WA Coalition - http://childrensalliance.org/protecting-washingtons-

immigrant-families

 Washington Law Help – self-help materials - https://www.washingtonlawhelp.org - public charge  Northwest Immigrants Rights Project – legal services –

https://www.nwirp.org/get-help/

 DSHS – FAQ listing benefits that will and won’t affect public charge (distributed today) and info

translated into ten languages https://www.dshs.wa.gov/esa/office-refugee-and-immigrant- assistance

 “Litigation Tracker”-

https://docs.google.com/spreadsheets/d/1gdbxw6wusU_4ZIeAAYG_Qu8qrZs- uHrt_PLBMa4gMT8/edit#gid=1746889895

QUESTIONS & ANSWERS

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Thank You!

Charlie Mitchell Senior Staff Attorney With assistance from NoHLA staff attorneys Huma Zarif and Ann Vining Charlie@nohla.org www.nohla.org

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