1. My detailed section by section summary of the public charge rule can be found here.
  1. This is a proposed rule and there are 60 days to comment from the day the rule is published in the Federal Register. The rule had not been published in the Federal Register as of September 25, 2018, but is expected imminently. The text is available on the Department of Homeland Security website at https://www.dhs.gov/news/2018/09/22/dhs-announces-new-proposed-immigration-rule-enforce-long-standing-law-promotes-self .
  1. The costs are enormous. According to DHS, the ten year direct costs associated with the new regulation will be as high as $1.3 billion.
  1. DHS is promoting the concept of “self-sufficiency” as the overarching purpose of the rule. It defines that to be when people “do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor and private organizations.”
  1. The rule is prospective. DHS will look to whether a person is likely to become a public charge in the future. It will examine evidence of a person’s past and present circumstances when making the determination.
  1. DHS has created a complicated system to determine whether people will become a public charge. It looks at two sets of factors – the minimum factors and the “heavily weighed factors.”
  1. The rule pays particular attention to whether a person has received public benefits and receiving benefits in the recent past will be a negative heavily weighed factor. Unlike the current policy of the government, DHS looks expansively at what is a public benefit and considers more than just direct cash payments. Receiving Medicaid and housing assistance, for example, will be viewed highly negatively. One change from the earlier drafts of this rule is the exclusion of receiving a subsidy on the Affordable Care Act exchanges.
  1. For benefits that can be monetized, they are counted as receiving a public benefit if they exceed 15% of the Federal Poverty Guidelines. For those that can’t (like housing benefits), the public charge issue is triggered if one receives the benefits for more than 12 months in the aggregate within a 36 month period.
  1. The rule considers the following to be public benefits:
  1. Any cash assistance for income maintenance
  2. SNAP
  3. Section 8 housing
  4. Medicaid
  5. Subsidies for Medicare Part D (prescription drugs)
  6. Subsidized Housing under the Housing Act of 1937
  1. The Children’s Health Insurance Program (CHIP) was not included but DHS has indicated they are considering including it in the final rule and has requested comments.
  1. The 15% cash assistance trigger is considerably stricter than the current guidelines which considers 50% the amount where one is considered a public charge.
  1. The basic factors considered in determining whether a person is likely to charge are
  1. Age
  2. Health
  3. Family status
  4. Assets, resources and financial status
  5. Education and skills
  6. An affidavit of support submitted by the alien’s sponsor
  1. The factors are, in effect, a point system which is something the Administration has been urging Congress to pass. Of course, this is a regulation and not legislation so it is likely be attacked as being beyond the Administration’s authority.
  1. Some of these factors will be considered controversial. For example, examiners are told that people under 18 and over 61 are to be treated more harshly than those in the middle. Disabilities and chronic health conditions are serious negative factors.
  1. DHS will also be pulling credit reports and credit scores as evidence of financial status. This is the first time the agency has ever done anything of this sort.
  1. There’s a backdoor English language requirement. Failure to be proficient in English is considered a negative factor.
  1. Affidavits of support are still required (they’re in the statute), but DHS states that they are not given nearly as much credit as in the past.
  1. The heavily weighed negative factors are
  1. Lack of employability
  2. Current receipt of a public benefit or receiving one within the last 36 months
  3. Financial means to pay for medical costs
  4. Previous findings of being a public charge
  1. Heavily weighed positive factors are related to income. Basically, if you’re over 250% of the Federal Poverty Guidelines, you should not be scrutinized.
  1. The proposed rule revives the use of public charge bonds. People who fail to satisfy an examiner that they won’t become a public charge may be given the opportunity to post a bond to show they won’t become a public charge. DHS will set the amount in each case and it will not be less than $10,000 (with inflation adjustments annually).
  1. The rule applies to adjustment of status permanent residency cases and nonimmigrant extensions and changes of status. The rule does not apply to consular cases because that’s under the control of the Department of State.
  1. Not every category is subject to the rule. For example, refugees and asylees are exempt as are certain nonimmigrant categories like U and T visa holders. But most family and employment-based categories as well as nonimmigrant categories are subject to the new rule.
  1. The rule comes with several new forms. An I-944 is a supplemental form used to determine if one is a public charge. An I-945 is an application associated with the new public charge bond. An I-356 is an application to cancel a bond.
Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
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