Public Charge Rulemaking Draft Expands Grounds for Inadmissibility

New Risks for Immigrants Becoming a Public Charge in Using Non-Cash Focused Government Programs

What is a Public Charge?

United States Citizenship and Immigration Services (USCIS) may determine inadmissibility on grounds of a prospective immigrant being considered a "public charge," or an individual deemed likely to become dependent on the government for assistance as a means of living. Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the U.S. or an adjustment of status to permanent residence (green card) is inadmissible if the individual, "at the time of application for admission or adjustment of status, is likely at any time to become a public charge." While this does not apply to naturalization proceedings or immigrants seeking protection such as under refugee or asylee status, if an individual is found to be inadmissible under this or any other grounds, then, as the label implies, admittance or adjustment of status will not be granted.

Under the current guidelines, an individual's probability of becoming a public charge is assessed by adjudicators according to the applicant's age, health, family status, financial status, resources, assets, education and skills. Relevant to the current discussion, publicly funded benefits that could be utilized in determining inadmissibility generally only included cash-oriented benefits determined to be the primary means of support of the immigrant's family. Non-cash benefits (Medicaid, nutrition services such as food stamps, etc.), with the exception of institutionalization for long-term care, were generally not considered in deciding one's inadmissibility upon grounds of being a public charge.

However, according to the draft of a new rulemaking proposal by the Department of Homeland Security (DHS) discovered by news organizations such as Vox, this may all be changing.

The Newly Proposed Use of Non-Cash Oriented Government Services in Determining Public Charge Likelihood

The new rules would dramatically alter the criteria for which inadmissibility on grounds of becoming a public charge are judged. While it would not be illegal for immigrants to use such public services entitled to all individuals regardless of status, use of these services could be held against them in future immigration proceedings.

This new rulemaking, if implemented in its current form, could introduce some difficult predicaments for immigrant families who may be forced to choose between utilizing such helpful services as Children's Health Insurance Program (CHIP),  educational services like Head Start for children or federally subsidized health insurance under the Affordable Care Act (ACA) and their future immigration prospects. 

The document outlines that any use of the newly added assistance programs for more than six months in the two years prior to applying for admission or adjustment of status would be "heavily weighted" against applicants. This negative strike could be countered if the immigrant is earning more than 250% of the federal poverty line at the time of application or if another individual is willing to sign an affidavit of support vowing to support the immigrant and his or her dependents at 125% of the poverty level, but these are by no means a guarantee.

Immigrants may also, at the discretion of the DHS, post at least $10,000 in bond in order to avoid being judged a public charge. In cases such as these, if the immigrant were to use any affected services within five years of the bond's posting, the money would then be forfeited.

Unfortunate if Approved

While the draft proposal has not yet been approved, it has been circulated that the new regulation in its entirety is being completed quickly and may be sent to USCIS's Office of Management and Budget for validation as soon as March. It will also be made subject to a period of time for public comment before anything final is implemented.

Unfortunately, the new proposed regulations are just another symptom of increasing pressure on immigrants as a whole. Should it force some families to choose between vital means of support that they are entitled to under U.S. law and their future immigration proceedings, it will truly be a tragedy. One can only hope it doesn't come to that.