The administration is expected to publish a proposed regulation soon that would radically alter the way USCIS officers screen applicants for lawful permanent residence for inadmissibility due to public charge. Rather than focusing on the petitioning sponsor’s income as reported on the affidavit of support, the agency would turn its attention to the adjustment of status applicant and any dependent family members. The officers would scrutinize the intending immigrant’s current and estimated income, job history, job skills, health status, assets, and any family history of public benefits receipt.
In January, the State Department amended the Foreign Affairs Manual to re-direct consular officers’ attention away from the sponsor and onto the immigrant visa applicant. But the USCIS proposed changes would go much further and mandate the consideration of specific non-cash benefit programs received by the applicant, the applicant’s children, or other dependents. The proposed regulation is under review at the Office of Management and Budget. It is unclear when it will be published to the Federal Register and opened for public comment. But our sources advise us that it is on a fast track. We summarize below some of the more important changes that appear in a leaked version of the proposed rule, describe the potential impact of this regulation on low-income immigrant communities, explain how CLINIC intends to respond, and how you can contribute to the effort.
Summary of the Proposed Regulation
New Definition of Public Charge
The statute at INA § 212(a)(4) allows the USCIS and State Department to conclude that an immigrant visa or adjustment applicant is inadmissible if he or she “is likely at any time to become a public charge.” According to a 1999 agency memorandum, field guidance, and proposed rule, a non-citizen has become a public charge for inadmissibility or deportability purposes if he or she has become “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” 64 Fed. Reg. 28689 (May 26, 1999). The Service defined the term “public cash assistance for income maintenance” as including only three forms of benefits: (1) Supplemental Security Income (SSI) for the aged, blind, and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance; and (3) state and local cash assistance programs, usually known as general relief or general assistance. Id. at p. 28692.
The proposed rule would vacate that interpretation and replace it with one that substantially broadens the term. An applicant would be inadmissible based on public charge if he or she “is likely at any time to use or receive one or more public benefits.” It also holds the intending immigrant accountable for any benefits received by children or other dependents who may have been legally entitled and even encouraged to receive them.
Receipt of Non-Cash Benefits
The following non-cash benefit programs received by the applicant or a dependent family member during the last three years would be a negative factor:
- Subsidized health insurance under the Affordable Care Act
- Medicaid (non-emergency services)
- Supplemental Nutrition Assistance Program (SNAP, formerly food stamps)
- State Child Health Insurance Program (CHIP or SCHIP)
- Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
- Housing assistance
- Energy benefits, and
- Earned Income Tax Credit (when it exceeds tax liability).
Full Considerations of Statutory Factors
The statute at INA § 212(a)(4) requires the consideration of the intending immigrant’s (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills. But after implementation of the affidavit of support requirements, which is a sixth factor, the USCIS and State Department currently concentrate on the sponsor’s income and ability to support the applicant. The proposed rule contemplates a new form that would capture additional information and supporting documentation from the intending immigrant. The applicant would likely be required to identify and document employment history, education and training, current and prior income, any offers of employment, health conditions that would affect employability, enrollment in unsubsidized health insurance, and assets or resources.
Positive and Negative Factors
Any of the following will be considered a “heavily weighted negative factor” if the applicant:
- Is of employable age, authorized to work, but currently unemployed
- Has no employment history or reasonable prospect of future employment
- Is currently receiving public benefits
- Has received public benefits for more than six months during the last three years
- Has a costly medical condition and has no unsubsidized health insurance or other apparent means of paying the costs of treatment, or
- Has a spouse or parent who is the principal beneficiary and who has been found inadmissible based on public charge.
Either of the following will be considered a “heavily weighted positive factor” if the applicant:
- Is a healthy person of employable age with financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines, or
- Is authorized to work, is gainfully employed, and has an income of at least 250 percent of poverty.
Posting of Public Charge Bonds
The statute has allowed for the posting of a public charge bond in situations where the applicant needs to assure the USCIS that he or she will not become a public charge. But during the last 20 years, the posting of such bonds has been extremely rare. The proposed rule details the procedure for the posting and canceling such bonds with the implication that they may become a common occurrence. Applicants who are initially refused based on public charge by a consular official or who are determined likely to become a public charge by the USCIS may be offered the opportunity to post a public charge bond of at least $10,000. The bond may be cancelled only upon the immigrant’s death, permanent departure, or naturalization. The bond will be considered breached if the immigrant receives any of the cash (SSI, TANF, or state general assistance) or non-cash programs identified above.
New Requirements for Nonimmigrants
Nonimmigrants applying for a change of status or an extension of stay will also be subject to the new public charge standard. As part of the application and adjudication process, they will need to prove that they are not receiving nor are likely to receive public benefits.
Public Charge Ground of Deportability
At the present time, lawful permanent residents are potentially subject to the public charge ground of deportability, but such instances are almost nonexistent for a variety of reasons. In the draft of the proposed rule, the agency contemplates discussions with the Department of Justice to relax those conditions and make this a more viable basis to remove persons. It is unclear at this time how the agency intends to change the current standard and protections.
Potential Impact of the Proposed Rule on Low-Income Immigrant Communities
The rule, if implemented as proposed, would affect every CLINIC affiliate, as direct service providers for low-income immigrant communities. It would increase the barriers to lawful status for low-income immigrants, making approval much more difficult for those who have a spotty employment history, are low income or underemployed, retired, disabled, or suffering from a medical condition that affects their employability.
The regulation would dissuade parents from obtaining for their U.S. citizen children benefits for which they qualify, out of fear that they may not be able to regularize their own immigration status in the future. It may even have a chilling effect on immigrant families’ usage of benefits that are exempt under this regulation, due to misunderstanding of the regulation and increased fear of any government contact. Lack of access to public benefits programs may increase poverty, hunger, homelessness, lack of access to health care, and decrease children’s school attendance and performance.
This attempt to specifically target the most vulnerable within the immigrant community would create a class of immigrants who are “too poor” to obtain permanent resident status, and who lack access to the means by which they could improve their wellbeing and prosperity.
What CLINIC Plans to Do, and What You Can Do
CLINIC and our partners are leading a campaign to fight this proposed regulation, initially by encouraging the public to submit as many comments as possible during the public comment period. The number of distinct comments that the agency receives and their arguments can have an impact on the content of the resulting final rule. It can significantly delay the final rule, or could even stymie the rule completely. If the final rule is published without changing harmful provisions, having a strong record of comments is helpful for any future litigation challenging the rule.
Soon after publication, CLINIC will hold a briefing to discuss the proposed rule. CLINIC will submit our own detailed comments on the proposed rule, and we will provide affiliates with a template comment and instructions to help you draft and submit a comment of your own.
Because this proposed regulation will affect all direct service providers for low-income immigrant communities, CLINIC would like to see 100% of our affiliates submit a comment on the proposed regulation.
We expect the public comment period to last 60 days, although a 30-day comment period is also possible. If you need to request clearance from your organization to submit comments on proposed regulations, you may want to start that process now so that you will be ready to submit when the rule is published, no matter how long the comment period is.
Use this article, and the informational materials we will supply after the proposed rule is published, to educate others in your community who care about immigrants’ rights, children’s welfare, access to health care, and fighting poverty. Helping to drive even more public comments from interested organizations and individuals will increase the impact of this campaign in support of the most vulnerable members of our immigrant communities.