Immigrants Choosing Between their Case and Welfare – Remember Not ALL Immigrants are Subject to the Public Charge Rule By Liliana Gallelli, Esq.

Sunday, May 31, 2020
Immigrants Choosing Between their Case and Welfare – Remember Not ALL Immigrants are Subject to the Public Charge Rule By Liliana Gallelli, Esq.
Immigrants Choosing Between their Case and Welfare – Remember Not ALL Immigrants are Subject to the Public Charge Rule

By Liliana Gallelli, Esq.
Access to public benefits is an essential part of any society. A recent development in immigration policy under the Trump Administration has resulted in negative health and nutrition consequences for immigrants and their children: they fear that receiving welfare benefits will foreclose the possibility of someday legalizing their status.

Many immigrants must undergo an admissibility test before being able to gain status. The broad admissibility categories include whether the foreign national has prior immigration violations, crimes, or whether the applicant will be a public charge to the United States[1]. The bottom line is that if an immigrant is deemed a “public charge”, he or she will be denied Legal Permanent Residence.[2]

On February 24, 2020, the Department of Homeland Security (DHS) implemented regulations that interpret the public charge ground of inadmissibility. The rules are a significant departure from the policy in place since 1999, which generally allowed an applicant to meet legal requirements with the use of an affidavit of support, the physical ability to be gainfully employed and by showing a lack of a history of cash assistance or government- subsidized institutionalization.[3] While the test is still a “totality of the circumstances” test, the new policy promulgates hardline standards and confines adjudicators by decreasing discretion.

Persons who are applying for a green card are usually seeking “admission” into the United States. Those persons are directly affected by the public charge rule. However, immigrants that do not have to worry about the rule include U visa holders, T visa holders, asylees, refugees and many more categories.

The INA does not define public charge but it does specify that when determining whether an alien is likely at any time to become a public charge, immigration officers must, at a minimum, consider the alien’s age; health; family status; assets, resources and financial status; and education and skills. In analyzing the totality of the circumstances, DHS must determine whether an alien is likely to become a public charge at any time in the future. However, even though the public charge determination is a prospective determination, DHS considers any current and past receipts of public benefits.

There are three different factors that must be considered when determining whether receipt of a welfare benefit will affect the public charge determination: TYPE, AMOUNT and DURATION.

Types of benefits that are considered:

· Cash assistance

· Medicaid (exception for emergency medical condition)

· Medicare Part D Low Income Subsidy

· Supplemental Nutrition Assistance Program (SNAP, or food stamps)

· Any benefit for institutionalization for long-term care at government expense

· Section 8 Housing Choice Voucher

· Section 8 Project-Based Rental Assistance

· Public Housing

Other factors that weigh heavily in favor of a public charge finding are whether the alien is unable to demonstrate current employment, has not employment history or no reasonable prospect of future employment. Also considered: the alien is currently receiving benefits above the threshold within 36 months preceding the application for status, medical conditions, a previous public charge determination.

It is important to note that DHS will consider only the direct receipt of benefits by the individual applicant.

On the other hand, an alien can present factors that weigh in his or her favor: if the alien has financial assets, resources and support of at least 250% of the federal Poverty Guidelines, or if the alien is authorized to work and is currently employed with an annual income of at least 250% of the Federal Poverty Guidelines.

The new regulation comprises documentary requirements as well. Applicants for legal permanent residence must file the new USCIS Form I-944, Declaration of Self-Sufficiency.

With the new regulation, an alien whom DHS has determined to be inadmissible based on the public charge ground may, if otherwise admissible, be admitted upon giving a bond. The purpose of issuing a public charge bond is to ensure that the alien will not become a public charge in the future. The concept of a bond has always been in the INA but the DHS never had implemented a public charge bond process.

[1] Section 212(a)(4) of the Immigration and Nationality Act (INA). Some immigrant and nonimmigrant categories are exempt from the public charge inadmissibility ground. Those include: asylees, VAWA, military service members or their children and U visas.

[2] The new policy also subjects applicants for admission to the U.S. and non-immigrant visa applicants (i.e. temporary, employment-based visas) to a public charge admissibility analysis. This article only discusses immigrant visas or benefits through a family petition.

[3] Another statutory requirement is for the immigrant to have an affidavit of support signed on his or her behalf. The affidavit of support provides a mechanism for public benefit granting agencies to seek reimbursement in the event a sponsored alien received means-tested public benefits.

**This is not intended as legal advice. Each person should have an individualized analysis of their circumstances**. Liliana Gallelli is an attorney with experience in immigration matters since 2007. She has represented clients before immigration agencies, immigration courts, the Board of Immigration Appeals, federal district courts, and the Ninth Circuit Court of Appeals. Her work involves applications for business visas (L1s, E2s, H1bs, among others), family petitions, cancellation of removal, and U visas, among others. She speaks Spanish fluently and conversational Portuguese, Italian and French. 707-433-2060. Lgallelli@kpblawyers.com