Factors to be Considered
USCIS will weigh heavily certain factors against the applicant, including where:
- A foreign national who is not a full-time student and is authorized to work cannot show current employment, recent employment history, or a reasonable prospect of future employment;
- A foreign national has received, or has been certified or approved to receive, one or more public benefits for more than 12 months in the aggregate within any 36-month period, beginning no earlier than 36 months before the alien applied for admission or adjustment of status on or after Oct. 15;
- A foreign national has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with his or her ability to provide for him or herself, attend school, or work and he or she is uninsured, and has neither the prospect of obtaining private health insurance nor the financial resources to pay for reasonably foreseeable medical costs related to a medical condition;
- A foreign national has previously been found by an immigration judge or the Board of Immigration Appeals to be inadmissible or deportable based on public charge grounds.
USCIS will weigh these factors in the applicant’s favor:
- A foreign national has household income, assets, resources, and support from a sponsor, excluding any income from illegal activities or from public benefits, of at least 250 percent of the Federal Poverty Guidelines for his or her household size;
- A foreign national is authorized to work and is currently employed in a lawful industry with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of his or her household size;
- A foreign national has private health insurance appropriate for the expected period of admission, so long as the alien does not receive subsidies in the form of premium tax credits under the Patient Protection and Affordable Care Act to pay for such health insurance.
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:
- Asylum applicants
- Refugees and asylees applying for adjustment to permanent resident status
- Amerasian Immigrants (for their initial admission)
- Individuals granted relief under the Cuban Adjustment Act
- Individuals granted relief under the Nicaraguan and Central American Relief Act
- Individuals granted relief under the Haitian Refugee Immigration Fairness Act
- Individuals applying for a T Visa
- Individuals applying for a U Visa
- Individuals who possess a T visa and are trying to become a permanent resident (get a green card)
- Individuals who possess a U visa and are trying to become a permanent resident (get a green card)
- Applicants for Temporary Protected Status
- Certain applicants under the LIFE Act Provisions
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 email@example.com