Khaas Baat : A Publication for Indian Americans in Florida


Dilip Patel


Factors to be Considered

USCIS will weigh heavily certain factors against the applicant, including where:

USCIS will weigh these factors in the applicant’s favor:

Foreign Nationals Exempt or Who May Obtain a Waiver

The rule does not apply to U.S. citizens, even if the U.S. citizen is related to a noncitizen who is subject to the public charge ground of inadmissibility. Also, the rule does not apply to the following groups who are either exempt from being determined a public charge, or may get a waiver for public charge when applying for a green card or other benefits with USCIS. These include:

Similarly, DHS will not consider certain benefits given to military families. Nor is DHS supposed to consider certain Medicaid benefits where benefit was: (1) for the treatment of an “emergency medical condition,” (2) as services or benefits provided in connection with the Individuals with Disabilities Education Act, (3) as 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, (4) by aliens under the age of 21, or (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.

The Departments of State and Justice are also expected to align this new USCIS rule with their policies and rules.

Litigation Already Pending

The new public charge rule has already been met with litigation by 13 states (California, Washington, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island) seeking injunctive relief, with cases pending in the U.S. District Court in the Northern District of California, and U.S. District Court for the Eastern District of Washington. Litigation efforts seek injunctive relief based upon the fact that the new rule unlawfully expands the definition of “public charge,” in violation of federal immigration statutes. Specifically, they argue:

“The Department’s new definition of “public charge” is contrary to its longstanding meaning in the Immigration and Nationality Act.”

“The Rule is arbitrary, capricious, and an abuse of discretion because — among other reasons — it reverses a decades-old, consistent policy without reasoned analysis, offers an explanation for the Rule that runs counter to the overwhelming weight of evidence before the Department, and disingenuously promotes as its purpose self-sufficiency in the immigrant population when, as abundantly shown by the administrative record, its effect is precisely the opposite.”

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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