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Tuesday, August 13 2019
Why has the public charge rule been criticized?

Why has the public charge rule been criticized?

  1. Immigrants are not “likely” to use public benefits. According to DHS’s analysis in the rule itself, “The data shows that the rate of receipt for either cash or non-cash public benefits was approximately 20 percent among the native-born and foreign-born, including noncitizens” in 2013. In other words, 80 percent of immigrants are not receiving public benefits. No matter how DHS slices the data, it could not find any population of immigrants with a propensity greater than 50 percent. DHS defines “likely” in the final rule to mean more than 50% probability to use benefits.
  2. The public charge rule ignores immigrant contributions. The rule would exclude people based on a projection that they are likely to use benefits in any future 12 months in any 36-month period. This means that people who make 200 percent of the poverty line could still be deemed a “public charge”/ward of the state, even though they are 95 percent self-sufficient. According to DHS’s analysis, only 14 percent of benefits recipients made an income of less than 125 percent of the poverty line, meaning that this rule will target thousands of applicants who will largely support themselves and contribute economically.
  3. The process to identify someone’s likelihood to use benefits is skewed to create denials. DHS’s proposed weighting scheme is scientifically invalid. It proposes a check mark system of positive and negative factors and then will compare the results. Yet it is empirically inaccurate to say that someone who doesn’t speak English and who lacks a high school degree is twice as likely to use benefits as someone who just doesn’t speak English. In fact, English language ability adds nothing at all once education and income is known. Finally, because the rule doesn’t define what it means by “likely” to become a public charge with any statistical exactness (or at all), every adjudicator will determine their own thresholds, resulting in denials when approvals would be appropriate.

What effects will the rule have?

  1. Fewer legal immigrants will receive approvals. DHS admits that the rule will have this effect—indeed, it is the purpose of the rule—but it declines to estimate it. The most modest reading of the rule implies that denials for public charge grounds will skyrocket back to the highs of the late 1990s when 13 percent of applicants received final immigrant visa refusals for public charge grounds. In 2018, this would have amounted to about 115,000 legal immigrants.
  2. Fewer legal immigrants will come legally to the United States. Banning some immigrants in certain backlogged categories will not necessarily reduce legal immigration because other immigrants will just take their slots. But 58 percent of the immigrants that this rule will affect—spouses, parents, and minor children of adult U.S. citizens—are in categories that have no cap. Greater denials will lower legal immigration to the United States, likely by tens of thousands. DHS acknowledges this fact as well, but fails to estimate it.
  3. U.S. citizens will be separated from their spouses and children. Nearly 370,000 immigrants who received permanent residence in the United States in 2017 were spouses or minor children of U.S. citizens. They constitute about 40 percent of all immigrants subject to the public charge rule. When the rule is implemented, they will be at risk of being denied and separated from their U.S. citizen spouses and children. The rule could ban about half of the spouses of U.S. citizens receiving permanent residence, according to an analysis of data on the employment status and incomes of spouses of U.S. citizens by the organization Boundless.

Read more from the CATO Institute here...

Posted by: Christopher M. Pogue, Esq AT 06:55 am   |  Permalink   |  Email
Monday, August 12 2019

The U.S. Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) today (August 12, 2019) announced a final rule that clearly defines the long-standing public charge inadmissibility law.

DHS has revised the definition of public charge to better ensure that aliens subject to the public charge inadmissibility ground, found at section 212(a)(4) of the Immigration and Nationality Act (INA), are self-sufficient. By law, in determining whether an alien is inadmissible under this ground, the government must at a minimum consider the alien’s age; health; family status; assets, resources, and financial status; and education and skills; and may consider any required affidavit of support.

The final rule defines the term public charge to mean an alien who receives one or more designated public benefits for more than 12 months, in total, within any 36-month period. The rule further defines the term public benefit to include cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and subsidized public housing.

This list of public benefits in the final rule is an exhaustive list with respect to non-cash benefits. However, cash benefits for income maintenance may include a variety of general purpose means-tested cash benefits provided by federal, state, local, or tribal benefit granting agencies, and only public benefits specifically listed in the rule will be considered. Public benefits not listed in the rule are not considered in the public charge inadmissibility determination. The rule does not include, for example, consideration of emergency medical assistance, disaster relief, national school lunch programs, foster care and adoption, Head Start, or student or home mortgage loans.

This rule also clarifies that DHS will not consider the receipt of designated public benefits received by an alien who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431.

Similarly, DHS will not consider the Medicaid benefits received: (1) for the treatment of an “emergency medical condition,” (2) as services or benefits provided in connection with the Individuals with Disabilities Education Act, (3) as school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law, (4) by aliens under the age of 21, and (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.

The final rule also establishes the totality of the circumstances standard for determining whether an alien is likely at any time in the future to become a public charge, which includes weighing, at a minimum, the alien’s age; health; family status; assets; resources and financial status; education and skills; prospective immigration status; expected period of admission; and sufficient affidavit of support under section 213A of the INA. No single factor alone, including the receipt of public benefits, is outcome determinative: The determination of an alien’s likelihood of becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances and by weighing all of the factors that are relevant to the alien’s case.

This rule also explains how USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100 (adjusted for inflation); the actual bond amount would be dependent on the individual’s circumstances.

This rule also makes nonimmigrants in the United States who have received, since obtaining the nonimmigrant status they seek to extend or from which they seek to change, designated public benefits above the designated threshold generally ineligible for extension of stay and change of status.

Importantly, this regulation does not apply to humanitarian-based immigration programs such as refugees, asylees, special immigrant juveniles (SIJs), certain trafficking victims, victims of qualifying criminal activity, or victims of domestic violence.

The final rule applies to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date of the final rule. Applications and petitions pending with USCIS on the effective date of the final rule will be adjudicated under the 1999 Interim Field Guidance. In addition, the final rule contains special provisions for the consideration of public benefits received before the effective date of the final rule: any benefits excluded from consideration under the 1999 Interim Field Guidance (for example, SNAP, Section 8 Housing Vouchers) that are received before the effective date of the final rule will not be considered; any public benefits that would have been considered under the 1999 Interim Field Guidance and are received before the effective date of the final rule will be considered in the totality of the alien’s circumstances, but will not be weighted heavily.

Posted by: Christopher M. Pogue, Esq AT 12:55 pm   |  Permalink   |  Email
Monday, August 12 2019

New immigration Public Charge rules were issued today, that will come into force of law in the next few months. The rule is over 800 pages long and the estimated time to read it is between 16-20 hours as stated in the rule itself. It is focussed on attacking low income legal immigration where immigrants and non-immigrants are attempting to follow the law, but are deemed too likely to be eligible for public benefits from any governmental source from local cities to states.

At this stage it is unclear how or when this new rule will go into effect as lawsuits will likely be filed soon. What is known is that some of the most controversial points made in the draft rule that was published earlier have been modified.

With that said, it does appear that going forward it will be a much higher burdern in general to gain approval for Legal Permanent Resident Status or Naturalization to become a US citizen for many applicants. We are also expecting to see new forms, and potentially new immigration fees (or increased fees) as part of this rule change. 

Many immigrants and non-immigrants will be tempted to immediately change their behaviour and remove themselves from any form of public benefit. However we do not recommend making any changes that may endanger someones health or access to food for themselves and their family. It is too early to make any decision that important, and either way immigration may be allowed to look at conduct that happened in the past so any damage may already have been done.

In addition, decisions will be made on a case-by-case basis taking into consideration the "totality of the circumstances." Therefore no two situations will be treated the same.

As this new rule is rolled out we will continue to provide more details attack to legal immigration to the US. 

Here is a link to the new rule in it's entirety. 

Posted by: Christopher M. Pogue, Esq AT 12:34 pm   |  Permalink   |  Email
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