Many legal
document preparers prepare immigration forms for consumers. And,
while, document preparers may not advise their customers about any
aspect of immigration – what someone should or should not do –
document preparers can certainly provide their customers with
information. Even better, refer their customers to authoritative
sources to find the answers they're looking for.
But, as
with many subjects these days, there is way too much information for
many people to absorb. I did some research about the Public Charge
Rule, because I wanted to know more. And, I felt that if I were
confused, then others must be as well. I asked a few of my colleagues
who specialize in preparing immigration documents, and was unable to
find the information I wanted. So I took to the internet and the
USCIS site to see what I could find out.
My first
question was whether under the Public Charge Rule, if someone who is
a legal alien resident gets injured, and his health insurance does
not provide adequate coverage, so the legal alien resident applies
for and receives Medicaid – does that then put him at risk of
deportation as a public charge?
The answer
I found, (please do your own research or see an attorney if this is
your scenario), is that – it depends. Yes, he may be a public
charge if he receives Medicaid for 36 months. But, if its a medical
condition that arose after becoming a legal resident alien, then he
will probably not be subject to deportation. I can't tell whether
this means after receiving his permanent resident alien status, or if
this would be true while his permanent resident status is temporary.
Another
question is my mind relates to the predictive nature of the public
charge rule. Apparently, the factors considered are meant to predict
whether an individual is likely to become a public charge in the
future, and if so, the application for a green card could be denied.
For example, even though someone might meet all the criteria to NOT
be a public charge at some point, the applicant's age is still
considered. What if, the applicant has the required income and
assets, is in good health, has never received public assistance, has
education or skills – but is age 61 or older. Does that mean his
application could be denied? Just on age?
And, to
me, the financial requirements are troublesome. The median income in
Florida, for all households is around $55,000. per year. Median
income means half of the population earns more, and half of the
population earns less. So that means there are far more households
who earn less than the median income, since over $55,000. per year
increases indefinitely. According to the article excerpted below, the
financial threshold has risen from 125% of the federal poverty
guidelines up to 250% of those guidelines – approximately $41,000.
for a household of two.
What will change under the new DHS “public charge rule”?
DHS plans to dramatically expand the
definition of “public charge,” so that green card and other visa
applicants could be denied not for being “primarily dependent on
the government for subsistence” (the current standard) but instead
for being “more likely than not” to use certain public benefits
at any point in the future.
It’s important to understand that the
great majority of people applying for green cards are not even
eligible for the very benefits that the DHS public charge rule seeks
to penalize.
Likelihood of future
use of government benefits. Although the following general
criteria are defined by Congress, DHS plans to greatly expand the
number of specific factors that immigration officers must take into
account when determining whether or not a visa applicant is
likely to become a “public charge” at any point in the future.
.
The new public charge rule would apply to the vast majority of
applicants for green cards (permanent residence). This includes green
cards based on:- a family relationship to a U.S. citizen or lawful permanent resident, for which over 800,000 green cards were granted in 2016 (the most recent year for which DHS has published data)
- sponsorship by a U.S. employer (140,000 green cards granted
per year)
Exemptions
The public charge rule will not apply to visa
applicants whom Congress has exempted from the public charge test,
such as refugees, asylees, individuals who have experienced domestic
violence, and other special categories.
Given that the new
public charge rule creates an entirely new income requirement for
visa applicants (not just their sponsors) and would set this
household income threshold as high as 250% of the Federal Poverty
Guidelines, the following possible impacts have been estimated:
What about permanent residents seeking U.S. citizenship?
Changes to the definition of “public charge” could ultimately expand the ability of DHS to deport some immigrants who already have green cards (“lawful permanent residents”).Congress states that a permanent resident can only be deported on public-charge grounds within the first five years of obtaining their green card — and only if they became a public charge based on circumstances that existed before they obtained their green card. (For example, a healthy person who obtains a green card, gets in an accident, and then needs government assistance would not be deportable on public-charge grounds.)
In practice, given the constraints set by Congress and court precedents, plus the fact that recent green card holders are typically ineligible for welfare, very few green card holders have been deported on public-charge grounds.
By expanding the definition of “public charge,” however, the administration could create new uncertainty for millions of immigrants.
U.S. law allows for the deportation of
immigrants who have become “public charges” within five years of
admission if their reason for seeking help preceded their entry to
the United States - for example, if they had a chronic health
condition that was not disclosed.
