The 'public burden' rule: what a green card applicant needs to know

On September 22, the Trump administration said it was reintroducing a green card wealth test that had been blocked during the pandemic. An alien who is determined to be a public charge is generally not admitted to the United States and is not eligible to become a lawful permanent resident. What this means is described on the official website US Citizenship and Immigration Services (USCIS).

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Under the final rule, a “public charge” is defined as an alien who received one or more government benefits for more than 12 months during any 36-month period. If, at the time of applying for entry into the United States or adjustment of status, the alien is deemed to be at risk of "becoming a public charge at any time," he will not be allowed into the country and will not be allowed to obtain a green card.

However, receiving government benefits does not automatically increase the likelihood that a person will become a “public charge” at any time in the future.

A 2019 rule that gives officials more authority to deny issuing green cards to applicants who the government believes rely or may rely on government benefits such as food stamps or housing vouchers was blocked in late July by a federal judge who found that it is hampering efforts to contain the pandemic.

Judge George Daniels has blocked the implementation of the policy during the country's coronavirus emergency. He referred to statements from doctors and local officials who said that immigrants across the country fear they could jeopardize their immigration status by seeking medical and government assistance during the pandemic.

However, subsequent rulings from the 2nd Circuit Court of Appeals, including a ruling earlier this month, limited and eventually suspended Daniels' ruling, allowing the Trump administration to re-run public burden checks.

On the subject: Trump administration renews 'public burden' rule

The last rule applies to two types of applicants:

• applicants for admission to the United States or adjustment of status to lawful permanent resident (such applicants are subject to the public charge inadmissibility rule unless exempted by Congress);
• applicants for an extension of nonimmigrant stay or a change in nonimmigrant status (such applicants are subject to the benefit condition unless they are exempt by law or regulation from being considered a public charge).

Congress has made some exemptions for refugees, asylum seekers, some T and U nonimmigrant visa applicants (victims of human trafficking and some crimes, respectively), and some applicants covered by the Violence Against Women Act.

As required by INA section 212(a)(4), 8 USC 1182(a)(4) and the final rule for a public charge determination a USCIS employee must consider:

• age;
• health;
• family status;
• assets, resources and financial condition;
• education and skills;
• prospective immigration status;
• the expected duration of the US residence permit;
• Affidavit of Support under INA Section 213A, Form I-864, or Form I-864EZ, as required.

No factor makes an alien inadmissible on a public charge basis except failure to file Form I-864 or Form I-864EZ when required. The determination of the likelihood that an alien will be a "public charge" at any time in the future is a prospective determination based on the totality of the circumstances and a weighing of all factors relevant to the alien's case.

DHS will only consider government benefits listed in the rule, including:

• Supplemental Security Income;
• temporary assistance for needy families (Temporary Assistance for Needy Families);
• Any federal, state, local income support cash transfer program (often called general assistance in a state context, but may be known by other names);
• the Supplemental Nutrition Assistance Program (formerly called food stamps);
• Section 8 Housing Assistance Housing Choice Voucher Program;
• Section 8, Project Based Rental Assistance (including refurbished housing);
• public housing (in accordance with the Housing Act);
• Federally funded Medicaid program (with some exceptions).

DHS will not consider benefits and benefits such as:

• emergency medical care;
• disaster relief;
• national school lunch programs;
• special supplementary nutrition program for women, infants and children (Special Supplemental Nutrition Program for Women, Infants, and Children);
• the Children's Health Insurance Program;
• foster care and adoption subsidies;
• government subsidized student and mortgage loans;
• help with electricity;
• food pantries and homeless shelters;
• children's program Head Start.

According to the last rule, DHS will not consider receiving government benefits by a foreigner who, at the time of receipt or during the application or consideration of an application for admission to the United States, has changed status or extended stay while enlisting in the US military, or while on active duty or service in any component of the U.S. Armed Forces' Ready Reserve. Benefits received by spouses and children of US military personnel will also not be considered.

Benefits received by children born or adopted by US citizens residing outside the United States will not count, including for children who are acquiring US citizenship and entering the United States for interview purposes.

On the subject: USCIS to Tighten Rules for Sponsoring Immigration of Relatives to the United States

DHS will not count Medicaid benefits received:

• for treatment in the event of "emergency medical care";
• as services or benefits provided under the Education Act for Persons with Disabilities;
• as school services or benefits for anyone who is or is the oldest eligible for secondary education under state or local law;
• foreigners under the age of 21;
• pregnant women and women within a 60-day period from the last day of pregnancy.

As noted on the website USCIS, the final rule allows the federal government to better implement U.S. immigration law provisions regarding the “public charge” inadmissibility basis. The final rule does not impose any penalties or disincentives on the receipt of government benefits by past, present, or future U.S. citizens or aliens who have been exempted by Congress from grounds of ineligibility.

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