“Public Charge” Update: New Rule Proposed by the Trump Administration Seeks to Chill Use of Public Benefits by U.S. Immigrant Families

On Saturday, September 22, 2018, the Department of Homeland Security (DHS) announced a proposed rule that, if implemented, will change how U.S. Citizenship and Immigration Services (USCIS) officers determine whether someone is eligible for adjustment of status and, in some cases, extension of stay and change of status within the United States. The changes would also apply to certain lawful permanent residents seeking to reenter the country after a period of travel abroad, such as those who have committed certain crimes and those who have been abroad for more than 6 months.

Specifically, the proposed rule seeks to allow USCIS officers to consider current, past, and potential future receipt of certain public benefits above a given “threshold” as a “heavily weighted negative factor” in the public charge determination. The proposed rule also seeks to create a sort of rubric for determining whether the immigrant is above the threshold for receipt of public benefits.

For its rubric, the proposed rule breaks down benefits received by an immigrant into two categories and then details the methodology for calculating the “annual aggregate amount of the portion attributable to the alien” for the benefits and considered in the public charge inadmissibility determination:

• “Monetizable,” which includes Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), General Assistance Cash Benefits, Supplemental Nutrition Assistance Program (SNAP), the Section 8 Housing Choice Voucher Program, and Section 8 Project-Based Rental Assistance; and
• “Non-monetizable,” which includes Medicaid (with exceptions), Institutionalization for Long-Term Care; Premium and Cost Sharing Subsidies under Medicare Part D; and Subsidized Public Housing.

Then, based on those categories, under the proposed rule, USCIS officers would look at duration and amount of benefits received and consider the immigrant to have reached the threshold for being considered inadmissible as a public charge if he or she has, for him- or herself:

• Used “monetized” benefits for more than 12 consecutive months, totaling more than 15% of the federal poverty guidelines for a single-person household ($1,821 in 2016); or
• Used “non-monetized” benefits for more than 12 months in any 36-month period preceding the application; or
• Used “monetized” benefits and individual use of “non-monetized” benefits for more than 9 months in any previous 36-month period.

Under the proposed rule, additional negative factors would include a large family size, having a health condition without private health insurance, and being under 18 or over 65. On the other hand, positive factors would include having a household income between 125% and 250% of the Federal Poverty Guidelines ($31,375 to $62,750 for a family of 4 as of 2016; and an income over 250% would be a “strongly weighted positive factor.” Additionally, receiving benefits for one’s United States citizen children would not be considered in the calculation of use of benefits, whether monetized or non-monetized. Certain benefits granted only to refugees would also not be included.

This proposed rule change by DHS follows a revision by the U.S. Department of State (DOS) to the Foreign Affairs Manual (the “FAM”) back in January of this year. That revision changed the way consular officers process immigrant visa applications for persons seeking lawful permanent residence from outside the country. For more information about that revision and what it means to be considered a “public charge,” please see our June 2018 blog post on the new FAM guidance, available here.

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If you are already a client of Joseph & Hall P.C. seeking or planning to seek lawful permanent residence, an extension of stay, or a change in your current status, please contact your attorney as soon as possible to discuss your particular case. If you are not represented by Joseph & Hall P.C. and have questions about your eligibility under this proposed rule or about your immigration status, please contact our office at (303) 297-9171 to schedule a consultation so we can review your case and your options.