New Proposed Rule on Public Benefits for Foreign Nationals Seeking Immigration Benefits New Proposed Rule on Public Benefits for Foreign Nationals Seeking Immigration Benefits

New Proposed Rule on Public Benefits for Foreign Nationals Seeking Immigration Benefits

The Department of Homeland Security (DHS) has published a Notice of Proposed Rulemaking on the use of public benefits as a potential ground for inadmissibility for foreign nationals seeking certain immigration benefits. In its release, DHS confirms “(s)elf-sufficiency has long been a basic principle of United States immigration law…” and adds, “public charge has not been defined in statute or regulations, and there has been insufficient guidance on how to determine if an alien … is likely at any time to become a public charge.”[1] (emphasis added) DHS’ proposed rule attempts to adopt several new standards to be used when determining whether an applicant for immigration benefits is likely at any time in the future to become a public charge, and is therefore inadmissible.

Who will be impacted by this new rule?

The vast majority of non-immigrant visa applicants seeking initial or renewed temporary status, as well as applicants for green card will be subject to assessment and required to submit a declaration through a new self-sufficiency form. Qualifying benefits received on or after 60 days following the date the final rule is published and within 36 months of seeking immigration benefits will require disclosure. Permanent residents (green card holders) applying for naturalization are not included in the proposed rule; however, permanent residents returning to the U.S. from abroad may be subject to the new rule in limited circumstances (such as following extended absences from the U.S.). Immigration benefits processed and secured outside the U.S. through our Embassies and Consulates abroad will require separate guidance on the public charge issue from the U.S. Department of State.

What type of public benefits could lead to finding of inadmissibility as a public charge?

As proposed in this rule, DHS is including cash assistance for income maintenance, such as Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and similar federal, state or local cash benefit programs for income maintenance. DHS is proposing a minimum level of use at 15 percent of the federal poverty guideline for a family of one, over an aggregate of 12 months, for the public charge designation to apply. DHS also includes non-monetized benefits in its proposed rule, including Supplemental Nutrition Assistance Program (SNAP), Section 8 Housing voucher and rental assistance, and non-emergency Medicaid.

Exceptions exist for school-based Medicaid programs, emergency medical care, national school lunch programs, foster care and adoption, head start, benefits provided under the Individuals with Disabilities Education Act (IDEA), and benefits provided to foreign-born children of U.S. citizen parents. Also exempt is Emergency Disaster Relief from the proposed public charge calculations.

What else may trigger a public charge finding?

Even if an applicant for immigration benefits has not received a disqualifying public benefit, a “totality of the circumstances” analysis will be applied by DHS to determine if the applicant has accumulated sufficient negative factors to be deemed a “likely public charge.” A multitude of decision making factors are included in the rule including age, health, household size as related to income, assets, resources and financial status, education and employment history, and whether the alien has ever received public benefits in the past. Other negative factors may also be considered such as diagnosis of a medical condition requiring extensive treatment or that will interfere with the ability to work or secure private insurance. Factors that may weigh against a public charge finding include financial assets, income, resources and/or support that exceeds 250% of the federal poverty guidelines.

Employers should note that mere satisfaction of wage obligations under H-1B visa and green card sponsorship rules may not be enough to overcome a finding of inadmissibility based on the government’s consideration of these additional factors under the proposed rule.

Public comments to the government’s proposed rule are due on or before December 10, 2018. If you have questions regarding U.S. Immigration, please contact Jenifer M. Brown, Christl Glier or Kristin Kelley.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
 
[1] https://www.uscis.gov/legal-resources/proposed-change-public-charge-ground-inadmissibility
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