Attorney Tricia Wang
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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 20 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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©2019 Law Office of Tricia Wang

川普时代的“公众负担“新法

2019年8月12日,美国移民局宣布执行 “公众负担” 新规则。新规取代了1999年发布的关于 “公众负担” 临时指南,并于2019年10月15日生效。 在有限情况下,美国移民局有权为那些只是因为使用公众负担而可能被拒绝绿卡申请的人,

在提交调整身份申请时,可以上缴公众负担保证金。新法规规定最低保证金金额为8,100美元;实际保证金金额将因人而异。 新规还规定,非移民外国人如果领取的福利已经超过规定的门槛,通常没有资格申请延期和更改身份。

新规将“公众负担”一词定义为在为期36个月内总共领取一项或超过一项公众福利逾12个月的移民 (一个月内领取2项福利将被算作领取2个月福利)。

该规则将“公众利益”的范围定义为:

  • 现金补助福利,
  • 社会安全补助金(SSI),
  • 对贫困家庭的临时援助(TANF),
  • 补充营养援助计划(SNAP),
  • 大多数医疗补助形式,以及某些住房计划。

该法规还从公众利益定义中排除:

  • 现役或在美国武装部队现成储备部服役的个人及其配偶和子女所获得的公众福利;
  • 即将获得美国公民身份的,通过国际收养的成年人和儿童获得的公众福利;
  • 21岁以下外国人和孕妇的医疗补助;
  • 针对学校服务的医疗补助(包括根据 “残疾人教育法” 提供的服务);
  • 紧急医疗服务的医疗福利。