Rule Change to Affect Immigrants Who Receive Government Benefits

In August, 2019, the Department of Homeland Security (DHS) issued a Final Rule setting forth the factors that the U.S. Citizenship and Immigration Services (USCIS) is required to consider to determine if an alien is likely to become a public charge and thus inadmissible under the Immigration and Nationality Act (INA). The inadmissibility rule applies to persons seeking admission to the U.S. or applying for adjustment of their status. “Public charge” was previously defined as an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance or institutionalization for long-term care paid for by the government.

The factors that the Final Rule requires to be considered in determining whether an alien is likely to become a public charge include an alien’s age, education, assets, health, income, resources, family and skills.  An individual is now defined as likely at any time to become a public charge if he or she is more likely than not at any time in the future to become a public charge.   The new rule expanded the definition of public charge to include an individual who receives certain public benefits for more than a total of 12 months over any 36-month period, and expands the list of publicly-funded benefits that may considered in determining if an immigrant is likely to become a public charge. The Final Rule also included a requirement that aliens seeking an extension of stay or change of status show that they have not received public benefits over the threshold amount since obtaining the immigration status that they are seeking to extend or change.

The “public charge rule” does not apply to aliens who have already become U.S. citizens, refugees, asylees, survivors of trafficking, domestic violence, or other serious crimes and immigrants admitted on other humanitarian grounds. Nor will it apply to lawful permanent residents, unless they seek to reenter the country after having left the U.S., either for more than 180 days or with certain criminal convictions. For public charge decisions made in the U.S., the Final Rule exempts from consideration benefits applied for or received by U.S. citizen family members.  Also not included is Medicaid received by applicants while pregnant or under age 21 and emergency Medicaid services for undocumented immigrants.

Previously, the benefits examined in determining if someone was a public charge were limited to long-term care nursing home Medicaid and cash assistance, i.e., public assistance and Supplemental Security Income. The list of benefits considered has been extended and now includes federally-funded Medicaid, Medicare Savings Program, Supplemental Security Income, TANF, Supplemental Nutrition Assistance Program, Section 8 housing assistance, federally subsidized housing and state or local cash assistance programs. Many immigrants who would be subject to the public charge admissibility test are already ineligible for these programs.

The rule was originally scheduled to take effect in October, 2019.  However, litigation challenging the legality of the Final Rule was filed, and a nationwide injunction against the implementation of the Final Rule was eventually issued by a court in New York.  On Monday January 27, 2020, the U.S. Supreme Court lifted the nationwide injunction against the implementation of the “public charge rule.”  Illinois’ statewide injunction against the Final Rule going into effect in Illinois was not affected by the U.S. Supreme Court’s ruling.

USCIS will apply the Final Rule to applications and petitions postmarked or electronically submitted on February 24, 2020 or thereafter. DHS will consider applications, certifications or approvals to receive non-cash benefits made before February 24, 2020, and the receipt of public benefits on or after February 24, 2020, by applicants seeking an extension, stay or change of status.

In guardianship matters, aliens who reside in New York and are not otherwise eligible to receive Medicaid long-term care services may receive such benefits if they are deemed PRUCOL: Person Residing Under Color of Law, i.e., residing here with the knowledge and acquiescence of the government. Seniors and disabled people who are PRUCOL and need long-term care may be eligible for state-funded Medicaid. The receipt of state-funded Medicaid will not be counted in the determination of whether an individual is a public charge. However, elderly and disabled people in receipt of such benefits may still be deemed public charges, as a serious medical condition and lack of private insurance or means for support are factors that will be considered against an applicant.

Leave a Reply