Public Charge Lawyer NYC | Feiner & Lavy Law Firm

“Public Charge” – Are you updated?

The US Immigration Law refers to the term “Public Charge” when an individual is currently or most likely to be depending on the US government for subsistence or survival. USCIS determines the status of an individual as a “Public Charge” using factors like the individual’s age, health, income, family size, education, and skills.

The New Rule:

On October 15, 2019, the “New Public Charge Rule” published by the current government on August 14, 2019, will come into effect. This new rule, which replaces the 1999-Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, is an amended version of “public charge” which is expanded to include some more kinds of public benefits received by individuals. The new rule defines “public charge” to be an individual who is or has been receiving one or more designated public benefits for more than a year. It also re-defines the meaning of “public benefit” to include income by way of Cash benefits, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP, or “food stamps”), most forms of Medicaid and certain housing programs.

The Background

But before any “Hackles are raised” let’s travel back in time to get some background on the subject. The early settlers who established colonies in the United States firmly agreed that it was of paramount importance to fend for oneself and one’s family and if they failed to do so, they would become an unfair burden on the immediate society. The early taxpayers refused to support individuals who were able to physically work but did not do so because of their callousness. They, however, made an exception of supporting the children, the old and the ailing.

Do you need to worry?

You need to be worried only if you are applying for a Green Card or Permanent Residency, that is you may be subject to the “public charge” test if you have applied or planning to apply for a visa to enter the US. You might also need to be concerned if you are extending your non-immigrant status or applying for other temporary stays.

What are the proposed conditions?

Apart from the existing conditions of cash subsistence or long-term health-care support, the proposed changes in the “Public Charge “policy would:

• Include Food and housing programs
• Be considered if you are supporting a family of four and your income is less than the prescribed income.
• Be applicable if you are extending your non-immigrant tenure or wanting to change to another non-immigrant status.
• Impact you if you have limited English-speaking skills or issues with physical or mental health that could affect your ability to work, attend school, or care for yourself.

US immigration laws have been driven by the fundamental belief of Self-sufficiency for over two centuries individuals have been considered inadmissible to the United States if they are not able to provide for themselves and are likely to become dependent on the government for subsistence.

The Final Rule:

On Aug. 14, DHS published the Final Rule related to the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act, which will come into effect on Oct. 15, 2019. The final rule redefines public charge, public benefits and the standard used by DHS uses to identify the possibilities of an individual becoming a “public charge” in the future which then would be considered inadmissible and ineligible either for entry into the US or for change of an individual’s immigration status.

Public charge inadmissibility could even be applicable to some permanent residents under certain circumstances especially when they are returning from a trip abroad. It is also important to note that according to the rules certain class of immigrants like refugees, asylees, and Afghans and Iraqis who have special immigrant visas are exempt from public charge inadmissibility.

It is also interesting to understand that according to the new rule, individuals who are availing of public benefits for their own personal use for example: federal, state, local, or tribal cash assistance, Supplemental Security Income, Temporary Assistance for Needy Families or Supplemental Nutrition Assistance Program (Food Stamps) among others, will be the ones who will be directly subject to public charge. Public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney or by members of the family will not be considered as factors for imposing a public charge on the individual. Similarly, DHS will not consider Medicaid services or benefits received under certain circumstances.
The new rule also states that public benefits received individuals who are enlisted in the US armed forces or is serving on active duty or in any of the Ready Reserve components of the US armed forces, and consequentially will not be subject to any inadmissibility criteria.

Who needs to be careful?

• If you are a full-time student and you are authorized to work but you are not able to prove that you are currently employed or you will be employable in the future.
• If you have received, or have been listed to be eligible for receiving any public benefit for more than 12 months in the past three years.
• If you have been diagnosed with a condition requiring extensive medical treatment or institutionalization which would render you dependent on public benefits because of your inability to provide for yourself.
• If you have been previously charged with Public Charge by an immigration judge or the Board of Immigration Appeals.

What should you do?

You need not hit the panic button yet since enrollment in any government support programs does not automatically subject you to the “public charge” test. A number of factors would be considered when making a determination that a person is likely to become a public charge. Inadmissibility would be determined by the “totality of the circumstances” and considerations of your Age, Health, Family status, Assets, Resources, Financial status, Education and skills.

Finally, it is always advisable to get in touch with an Immigration Lawyer. An Immigration Lawyer will help you understand the benefit programs you and your family need. The Immigration Lawyer will help you sort out your concerns about“public charge” related to an immigration application. Finally, an Immigration Lawyer would help you deal with the complexities of the Immigration laws effectively.