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The immigration denials on public charge grounds on increase

The Chicago immigration attorneys of Zneimer & Zneimer P.C. have been tracking the proposals to amend the public charge regulations, which will make it more difficult for immigrants to receive permanent residence if they or the sponsoring family had received public benefits for a specific period of time prior to the sponsorship.  According to a Politico article, between Oct. 1 and July 29, “the State Department denied 5,343 immigrant visa applications for Mexican nationals on the grounds that the applicants were so poor or infirm that they risked becoming a “public charge,” according to the statistics.”  In comparison, in the 2016 fiscal year, only seven people received denial based on “public charge”.

Today, the Department of Homeland Security announced that on August 14, 2019, it will publish the final rule, that amends the regulations by “prescribing how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA or the Act), because he or she is likely at any time to become a public charge.”  The DHS final rule defines what is a “public charge” and what will be considered a “public benefit”:

 Public Charge is defined as an alien “who receives one or more public benefits” for more than 12 months “in the aggregate” within any 36-month period.  Receipt of two benefits in one month counts as 2 months.  , as defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-month period

Public benefit includes a list of benefits.  Receipt of each two within one month will count as 2 months towards the 12 month.  For example, an alien that receives 2 of the benefits below for 6 months would be considered a public charge:

(1) Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:

  • (i) Supplemental Security Income;
  • (ii) Temporary Assistance for Needy Families (TANF) ;or
  • (iii) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); and

(2) Supplemental Nutrition Assistance Program (SNAP);

(3) Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD;

(4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937; and

(5) Medicaid, except for:

  • (i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
  • (ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 et seq.;
  • (iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law;
  • (iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).

(6) Public Housing under section 9 of the U.S. Housing Act of 1937.

(7) Public benefits, as defined above do not include any public benefits received by an alien who at the time of receipt of the public benefit, or at the time of filing or adjudication of the application for admission or adjustment of status, or application or request for extension of stay or change of status is—

  • (i) Enlisted in the U.S. Armed Forces; or
  • (ii) Serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or
  • (iii) Is the spouse or child, of an alien enlisted in the U.S. Armed Forces or one that is serving in active duty or in the Ready Reserve component of the U.S. Armed Forces.

(8) In a subsequent adjudication for a benefit for which the public charge ground of inadmissibility applies, public benefits, as defined in this section, do not include any public benefits received by an alien during periods in which the alien was present in the United States in an immigration category that is exempt from the public charge ground of inadmissibility (for example refugees, asylees, etc.)

(9) Public benefits, as defined in this section, do not include any public benefits that were or will be received by—

  • (i) Children of U.S. citizens whose lawful admission for permanent residence and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child’s acquisition of citizenship; or
  • (ii) Children of U.S. citizens whose lawful admission for permanent residence will result automatically in the child’s acquisition of citizenship upon finalization of adoption; or
  • (iii) Children of U.S. citizens who are entering the United States for the purpose of attending an interview.

The rule also itemizes the factors it will consider to determine whether or not an immigrant would be inadmissible because the immigrant will become a “public charge.”  The final rule also provides for a payment of bond which will become U.S. property if the alien becomes a “public charge.”  Going forward, a non-immigrant seeking change or extension of stay must also prove that such alien has not received any public benefits over a specified period of time.

The immigration attorneys of Zneimer & Zniemer expect that the public charge issue will become a point of contention and recommends that people consult an attorney prior to filing.