Recently, there has been hysteria about Trump’s new public charge rule and how this will affect your visa or green card application.
If you are worried about whether you will pass the new public charge rule test, then you may want to consider submitting your visa or green card application before it goes into effect!
In today’s podcast episode, we are learning all about the new public charge rule and how it will affect your case. Good or bad!USCIS announced on August 14th, 2019 that DHS has published the Final Rule related to the public charge ground of inadmissibility.
Note: This new rule goes into effect October 15th, 2019!
What Is The Public Charge Rule About?
To summarize the 800 page DHS document, it states that noncitizens (or aliens) whom the government believes are likely to receive cash assistance or to need long-term care at government expense should be refused admission into the United States.
- The public charge standard was first in the immigration code in 1882
- New rule dramatically changes the definition of the term “public charge”
- Makes it more difficult to get permanent residence and temporary visas.
This is what’s called “inadmissible due to public charge.” This means that if the consular officer believes that the beneficiary will need government assistance (either cash or non-cash), they must refuse the visa.
America has long encouraged immigrants to be self-sufficient from the moment they enter the US.
Below is an excerpt from USCIS’s guide to sponsoring someone using form I-864 affidavit of support.
If a sponsor does not provide basic support to the immigrants
they sponsor, the sponsored immigrants, or the Federal or State agency that gave the benefits to the family members, can seek reimbursement of the funds through legal action against the sponsor.
You read more about the specifics on sponsoring someone using form I-864 and what the legal requirements are for the US citizen.
When Does The Public Charge Rule Become Effective?
The good news is that you have a little bit of time to submit your petition before the new public charge rule goes into effect.
If you submit your petition after the 10/15/2019 deadline, USCIS, DHS and the consular officer will use the new rule to test whether the beneficiary will become a public charge.
The new public charge rule will affect many parts of your everyday life.
- Federally funded medical care (Medicaid)
- Medicaid is one of the federally funded medical programs that is now included in the new public charge rule. This is unfortunate because health insurance is already so expensive in the United States and unaffordable to many. If you are on Medicaid and wish to apply for a green card, you may need to cancel it before 10/15/2019.
- English language proficiency
- Reading, speaking and understanding the English language is now very important when deciding on who would become a public charge. But, it doesn’t play a huge role just yet. If possible, try to show that you are learning English by taking language classes. This will show that you will be able to function in the US and obtain a job.
- Food stamps
- Applying for and receiving foods stamps may affect your chances of getting a green card. This is difficult to comprehend because the vast majority of people applying for food stamps truly need it! If you are receiving food stamps on behalf of your US citizen child, you may not need to cancel this benefit. Please check with the office that handles this benefit.
- Welfare programs
- Many welfare programs will be a target for the new public charge rule. If you are all concerned about the benefits that you are receiving, you should double-check to see if they are included as part of the new public charge rule and decide whether obtaining your green card is your first priority.
- Local county benefits not included in the rule only federal
- All the benefits I’ve outlined are specific to federally funded benefits only. If you are receiving local state benefits, this may not count against you since the new public charge rule doesn’t include local state programs.
Remember: this new public charge rule goes into effect 10/15/2019 so submit your petition before this date to be grandfathered into the old testing method of inadmissibility on the public charge grounds.
How Does The New Rule Affect Immigrants?
What you really want to know is how this new public charge rule will affect you, right?
Well, it’s kind of like a test you have to pass in order to be granted your visa or green card. This is not a test you can study for and therefore, you have little control in the outcome.
Adjudicators will use public charge test if your income is below a certain amount which mainly targets low-income immigrants and their families.
In addition to the above, adjudicators will consider whether you are likely to use the following government benefits:
- Government housing,
- Food and medical assistance,
- Section 8 vouchers and
- Supplemental Nutrition Assistance Program (SNAP)
- Any diagnosed medical condition that requires extensive medical treatment
Who Would Be Affected By The New Rule?
As I stated before, the number of people that are affected by the new public charge rule is broad.
This can include the following:
- If you are applying for a green card (I-485)
- Applying to extend or change the category of nonimmigrant visa or renewing your status
- Many types of nonimmigrant and immigrant visa (including the spouse visa)
- Green Card holders who have been outside the US for more than 6 months
Note: If you are a green card holder who is living outside the US for more than 6 months, you are risking refusal of entry if you cannot pass the public charge test!
Related Podcast: EP12 How the new public charge rule affects green card holders
Who Will NOT Be Affected By The New Rule?
Thankfully, USCIS does put restrictions on who the new public charge rule will affect.
Below are groups of people that do not have to worry about using public benefits as it will not negatively affect their case or a family members case.
- Anyone that has already become a US citizen
- Undocumented individuals (ineligible for public assistance)
- US Citizen children that receive public assistance benefits
- Refugees and Asylees
- Survivors of domestic violence (VAWA)
The graph below shows the estimated number of people who would be subject to the new public charge test.
For example: If you are applying to adjust your status inside using form I-485, you would be one of 382,264 other people who are not subject to the new public charge rule.
Factors That Affect If You Will Pass or Fail Public Charge Test
Before a consular officer can determine whether someone is likely to become a public charge, they must-have criteria that will help them make the decision.
- Being under 18 and older than 61 will negatively affect your chances of getting an immigrant or nonimmigrant visa. This can also affect your odds of getting a green card. The reason behind this is due to the high chance of you needing financial support since you may not be able to work or willing to work a job to earn money.
- Your health status will also play a role in whether you will pass the public charge test. This is due to the fact that one of the things considered is whether you have an illness that requires expensive medical treatment. It may help if you can prove that you have private health insurance or can afford your medical treatment out-of-pocket.
- Family status
- Your family status will be taken into consideration. Are you married? Do you have children? This can help or hurt you based on your household size and whether you can afford to support a large family.
- Assets, resources, and financial status
- This criterion is pretty obvious to most people. The consular officer will look at your financial status, your income, your assets, and resources. This helps them determine if you can be self-sufficient after arriving the U.S. The more money and assets you have the better your chances of passing the public charge test. (Doesn’t this seem like classism to you?)
- Education and skills
- Whether you have a college degree or not will make a huge impact in your success in getting your visa or green card. Trump has said that he wants more educated young immigrants entering the US instead of non-educated older immigrants. This is mainly because the former would begin to work right away and pay taxes to Uncle Sam.
- Prospective immigration status
- Your immigration status can also play a role in whether you pass or fail the public charge test. Are you already in the US on a valid visa? Are you applying outside the country? Have you ever been approved for a US visa? Are you currently a green card holder?
- The expected period of admission
- The length of your stay will also be used to determine whether you at risk of becoming a public charge. They may use this along with your financial status to see if you can support yourself during your visit to the US.
- Sufficient Form I-864 (when required)
- Having a strong I-864 affidavit of support can really help your case. If you have a US citizen or LPR that has enough income or assets to financially support you, then you have a good chance of passing the public charge test. But this factor alone is not enough.
When it comes how the consular officers decide whether you have passed or failed the public charge test comes down to positive and negative factors.
Basically, you’ll want to have more positive than negative factors surrounding your case. It’s just that simple!
- Household income is above 250% of the poverty guidelines for household size
- You are authorized to work and currently employed in a legal industry with an annual income of at least 250% of poverty guidelines for household size
- You have private health insurance for your expected period of admission (can’t receive subsidies such as tax credits)
The chart below is the current poverty guidelines for 2019. I’ve also highlighted in RED how much 250% of the poverty guidelines really are.
If you make than the numbers in red for your household size, this is a positive factor!
As you can see, there are way more negative factors than positive. I believe this was intentional.
Try to avoid as many of these negative factors as possible so that you have a better chance of passing the new public charge rule.
- Current use of public benefits
- Amount of benefits used
- Use of cash benefits over 12 months
- Use of non-cash benefits for more than 12 months in any previous 36-month period
- Previously found to be inadmissible or deportable based on public charge grounds.
- Use of cash benefits plus the use of noncash benefits for more than nine months in any previous 36-month period
- Being younger than 18 or older than 61 years of age
- Having a medical condition that may affect your ability to work, attend school or care for yourself
- Not having sufficient resources to cover the medical condition
- Not having private health insurance
- Having several children or other dependent family members
- If you have limited English proficiency
- Having bad credit or a low credit score
- Having no employment history
What Are Public Charge Bonds?
Public charge bonds are similar to other types of bonds… except they allow you to enter the US (instead of leave jail).
Below is an excerpt from the USCIS adjudicators field manuals which outlines some of their processes when it comes to public charge bonds:
How Do Public Charge Bonds Work?
First, not everyone will be given the opportunity to post a public charge bond. There are some rules and limitations on who will be offered the chance to submit a bond.
- Required from applicants deemed inadmissible on only public charge grounds.
- If you can’t prove you can financially support yourself, you can’t submit a bond
- DHS has full discretion to invite you to submit a bond.
- If you have one or more negative factors, you will not be given the option to submit a bond
- Cost of a bond will be at least $8,100.00
- New form I-945 will be used to submit a bond
- Form I-945 will have a $25 filing fee
How To Cancel Public Charge Bonds?
Having to put up an expensive bond won’t be easy but there are several ways to cancel the bond and have the money returned to you.
- You must request to cancel bond on new form I-356
- I-356 has a $25 filing fee
Here’s a sample of Form I-356 from USCIS.gov website. It has not gone out yet and is still a draft version but you can download a copy to review.
Criteria To Cancel Public Charge Bonds
Now that you know the process to cancel the public charge bond, who is allowed to do this?
There are several criteria that you must meet before USCIS will allow you to cancel a public charge bond. Carefully review the list below so that you know when you can expect to get your money back.
- Been an LPR for five years
- After you’ve been a green card holder for at least 5 years, the restrictions on public benefits disappear! You are free to use government assistance at this point without penalty.
- Become a U.S. citizen
- If you naturalize to become a US citizen (using form N-400) you automatically can cancel your public charge bond. US citizens are able to get government benefits at any time if they qualify for it.
- Permanently departed the U.S.
- You must file form I-407 Record of Abandonment of Lawful Permanent Resident Status. This doesn’t simply mean that you left the US for a long time, you actually have to forfeit your green card.
- Obtained an immigration status not subject to public charge inadmissibility
- We’ve gone through some of the applicants that are not subject to the new public charge rules and if your immigration status changes to any of them, you are free to cancel your bond.
- If you die, your family members would receive the public charge bond on your behalf. They must submit the application as USCIS may not realize that you have passed away.
Benefits NOT Affected By New Public Charge Rule
Not all benefits will be negatively impacted by the new rule. There are several listed below that you can apply for and still pass the public charge test.
- Medicaid for the treatment of an emergency medical condition;
- Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
- School-based services or benefits provided to individuals who are at or below the oldest age-eligible for secondary education as determined under state or local law;
- Medicaid benefits received by an alien under 21 years of age; or
- Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.
As you can see, many of them have to do with Medicaid. If you are not sure if the benefits that you have received fall under this category, contact USCIS customer service or set up an InfoPass appointment at your local field office.