YPSILANTI – Attorneys from the Michigan Immigrant Rights Center (MIRC) have shared information about the Department of Homeland Security’s (DHS) new public charge rule ahead of its implementation this month.
Following the August 14 publishing of new changes to the ground of admissibility of immigrants to the U.S. based on the likelihood of their becoming public charges, the rule will be effective as of October 15.
The public charge ground of inadmissibility only applies at certain points along the immigration path, including when some people are applying to enter the United States from abroad or when applying for permanent residence from inside the United States, otherwise known as adjustment of status.
It mainly impacts individuals who are immigrating through a family member.
There is no public charge test for permanent residents or green card holders, unless they leave the U.S. for more than 180 days in a single trip and thus become applicants for admission on return.
According to MIRC, since the ‘90s, a public charge has been defined as an immigrant who is likely to become primarily dependent on the government for subsistence. Only two types of public benefits were considered: Cash assistance as the sole means of income maintenance and long-term institutionalized care at government expense.
Advocates are worried that new rule will do more to create panic and misinformation among immigrant communities than actually increase the number of people that would be considered a public charge based on past use of public benefits.
The government also applied a “totality of circumstances” test based on age, family status, health, financial status, education and skills, but the I-864, Affidavit of Support from a sponsor was given significant weight.
DHS’s new rule changes the public charge inadmissibility definition from “likely to become primarily dependent on public benefits” to “more likely than not to receive one or more of nine designated public benefits for more than 12 months in the aggregate in any 36-month period.”
Immigrant rights attorneys and advocates argue that the new rule encourages broad discrimination based on age, disability and country of origin and minimizes the weight of financial sponsorship. The new rule reframes the admissibility evaluation from sponsors of applicants to the applicants themselves.
It will direct the focus of the admissibility evaluation from sponsors of applicants to the applicants themselves.
The previous public charge analysis took into consideration whether an applicant received cash assistance or long-term institutionalized care at the government’s expense.
Currently, there are 10 lawsuits pending against the new rule that may delay or even prevent the rule from going into effect.
Strangely, the new public benefits considerations will look at an applicant’s use of certain benefits that are generally only available to permanent residents who have had their green cards for five years or longer, and some other smaller groups, like refugees and asylees. This includes food stamps, Section 8 housing and public housing assistance. The limitation on public benefits availability has been in effect since the Clinton-era welfare reform law, Personal Responsibility and Work Opportunity Reconciliation Act of 1996.
This substantially narrows the field of those who would fall under the public charge admissibility for use of past public benefits. Further, the rule only examines public benefit use after October 15.
Advocates are worried that new rule will do more to create panic and misinformation among immigrant communities than actually increase the amount of people that would be considered a public charge based on past use of public benefits. As the rest of this article shows, the public benefits are really a red herring for the more insidious totality of circumstances test.
The nuts and bolts of applicant determination
Our main concern is that a lot of people who are eligible for public benefits and are not affected by this rule are frightened and disenrolling from benefits that are critical for their families — MIRC Staff Attorney Marie S. Nelson
Previously, for family-based petitions, the test focused on a sponsor’s income and ability to support an immigrant. The sponsor had to make at least 125 percent of the poverty level. Joint sponsors were given weight.
Now, for applicants who are not in the same household as their petitioner, both the sponsor and the applicant’s household income will be taken into consideration.
An immigrant’s household, and sponsor’s if living separately, will have to make at least 125 percent of the Federal Poverty Limit — more than $32,000 for a family of four. A strong preference will be given to those households making nearly $64,000 a year for a family of four or that have private health insurance.
Negative factors will include limited English proficiency, use of fee waivers by the intending immigrant (which will be rare), limited education, health conditions, lack of health insurance or ability to afford treatment, credit score, age under 18 or over 61 and any previous application for public benefits. Applicants will also have to demonstrate education and skills that can land them a job with income above poverty line.
Applicants will also have to demonstrate education and skills that can land them a job with income above the poverty line.
Sponsors, both primary and joint, will come under further scrutiny, with considerations of their income, ability to support, relationship to and residence with applicants and whether they have sponsored other immigrants in the past.
It is critical to remember that a sponsor’s or petitioner’s receipt of public benefits now or in the past will not count against the applicant. The bigger issue and main takeaway is the fact that the sponsor or petitioner has income low enough to qualify for a public benefits. It is the income, not the public benefits, that are the focus of this public charge ground of inadmissibility.
Matters become more complicated and unclear when it comes to those applying for a visa from abroad.
MIRC staff attorney Marie S. Nelson told The Arab American News this week that the new DHS rules don’t apply to those applicants. Instead, the Department of State (DOS) will make decisions on those cases with unclear and nebulous guidelines.
“DOS has made policy changes beginning in January of last year,” Nelson said. “They don’t have the same hard and fast rules that DHS has just issued. DOS (guidelines) are vague and there is a lot of discretion in how the consulates apply the public charge ground.”
Nelson made clear that similar to DHS, DOS has said it will not simply rely on the affidavit of support and will focus more on the immigrants themselves.
“Our main concern is that a lot of people who are eligible for public benefits and are not affected by this rule are frightened and disenrolling from benefits that are critical for their families,” she added. “(We would advise) that before you decide to disenroll from benefits or decide not to apply for them, please contact your case manager or contact an immigration lawyer.”
Those concerned about how the new rule applies to them can contact MIRC’s intake line for free if they don’t already have an attorney.
A full list of MIRC’s contact is available at https://michiganimmigrant.org/contact-info