Are you a Public Charge?

New Public Charge Rule in the Trump Era

Are you a public charge? Did you ever apply and receive public benefits such as Medicaid for prenatal care, food stamps/SNAP, WIC and you worry about this may make you a “public charge” and affect your green card application?

According to INA Section 212(a)(4) of the Immigration and Nationality Act (INA), any applicant seeking to become permanent resident of the United States, whether from the USCIS or the US consulates must show at the time of application that he or she is unlikely at any time to become a public charge, or he or she will be considered “inadmissible”, and the application will not be granted.

Public charge has been a ground of inadmissibility for more than 100 years. In my more than 25 years practice as an immigration lawyer, having a financial sponsor who meets the criteria would usually do the trick. However, in the after-Trump era, submitting a qualifying I-864 Affidavit of Support may no longer shield you from a finding of inadmissibility based upon the public charge ground. USCIS and the consulates will look far beyond the affidavit of support to determine whether an alien is likely to become a “public charge”, and consider multiple factors such as income, assets, resources, financial status, education, skills, age, health, family status, etc.

On August 12, 2019 USCIS announces Final Rule enforcing the long-standing Public Charge Inadmissibility Law. This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect Oct. 15, 2019.

This new law empowers the USCIS with discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond in the context of adjustment of status applications. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

The rule also makes nonimmigrant aliens who have received designated public benefits above the designated threshold generally ineligible for extension of stay and change of status.

The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The rule further defines the term “public benefit” to include:

any cash benefits for income maintenance,
Supplemental Security Income (SSI),
Temporary Assistance to Needy Families (TANF),
Supplemental Nutritional Assistance Program (SNAP),
Most forms of Medicaid, and certain housing programs.

The rule excludes the following from the public benefits definition:

Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children;
Public benefits received by certain international adoptees and children acquiring U.S. citizenship;
Medicaid for aliens under 21 and pregnant women;
Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and
Medicaid benefits for emergency medical services.

If you have any public charge issue or concerns, please check with your trusted immigration lawyer first! Call the Law Office of Tricia Wang at (510) 791-0232 or send us an email at tricia@wangslaw.com to schedule an initial consultation with our lawyer. We will waive the consultation fee if we are retained by you for the case.

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