In August of 2019, the Trump administration published a rule amending the Department of Homeland Security regulations for admission or adjustment of status. The rule would make someone inadmissible and therefore ineligible to be a green card holder if he or she is likely at any time to be a public charge. This rule does not create a penalty for any past, current, or future receipt of public benefits by U.S. citizens or immigrants who are exempt by congress from the public charge inadmissibility. For example, the new rule does not apply to immigrants who are asylees, refugees, or part of another vulnerable population. The rule does make an immigrant who has received certain benefits above a specific threshold generally ineligible for extension of their stay and change of status.
According to the Trump administration’s announcement, the government is attempting to ensure that immigrants seeking to remain in the United States, either temporarily or permanently, are self-sufficient. The government’s main priority is that immigrants rely on their own capabilities and the resources of families, sponsors, and private organizations rather than on public resources. This rule also makes certain nonimmigrant aliens in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.
An immigrant being inadmissible because he or she will be a public charge in the future has been a law for years. However, previous administrations have failed to enforce the law to the extent that the Trump administration is now attempting to do. The new rule has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received. 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.
Not all immigrants will be punished receiving government benefits. 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 will not be inadmissible to the United States for receiving public aid.
Importantly, this regulation does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.
USCIS Acting Director, Ken Cuccinelli, said “For over a century, the public charge ground of inadmissibility has been part of our nation’s immigration laws. President Trump has delivered on his promise to the American people to enforce long-standing immigration law by defining the public charge inadmissibility ground that has been on the books for years.”
The new rule allows an immigration officer to grant an immigrant a bond. During the adjudication of a green card application, if an immigration officer finds that the immigrant is likely to be a public charge, then the immigration officer may offer the immigrant the opportunity to post a bond. The USCIS officer will use their discretionary authority, in limited circumstances, to determine whether the immigrant qualifies for a bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.
This final goes into effect at 12:00 a.m. Eastern on Oct. 15, 60 days from the date of publication in the Federal Register. USCIS will apply the public charge inadmissibility final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the 1999 Interim Guidance.
Critics of the rule state that this is yet another example of President Trump attacking minority immigrants, as they will be greatly impacted. Immigrants who are eligible for public benefits are now uncertain on how receiving those benefits would impact their immigration status.
Attorney Patricia Elizée is the managing partner of Elizee Law Firm, P.A. The firm focuses on immigration and family law. Ms. Elizee may be contacted at (305) 371-8846 and 1110 Brickell Avenue, Suite 315, Miami, Florida 33131.