A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, October 22, 2018

Family Immigration Becomes Difficult Under New Financial Support Rule

If you ever received public benefits, it would be more difficult for you to apply for a U.S. green card under a new DHS proposal. The proposal can possibly become a long-standing law after the public comment period. According to DHS Secretary Nielsen, the proposed regulation is intended to promote immigrant self-sufficiency, ensuring that new immigrants are not likely to become a "public charge" and protect American taxpayers.

"Public charge" as a ground of inadmissibility has been part of U.S. immigration law for over many years but has not been emphasized until recently.   

The Immigration Act provides five factors for consideration regarding the issue of public charge, including (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills.  These factors have not been heavily considered by DHS as long as there is a valid affidavit of support signed by a U.S. sponsor.  

In addition to those above-listed factors, DHS also proposes to deny green card applications to applicants who have received certain public benefits above certain pre-defined threshold limits or for a long periods of time.  In addition to being barred from getting a visa, applicants that are considered as public charge are generally ineligible for change of status and extension of stay.

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The potential impact of these proposed changes would be substantial. DHS suggests that immigration officers should consider certain "heavily weighed negative factors" that are particularly indicative of a likelihood that the applicant would become a public charge including:

Unemployment

A person who is able to work but does not work raises a red flag that he or she would likely become a burden to the U.S. society. Applicant's current employment, employment history, and reasonable prospect of future employment will be scrutinized, and absence of employability would be considered as evidence of lack of self-sufficiency. 

Current Receipt of One or More Public Benefits

Public benefits that have been listed as triggers for finding of inadmissibility include: federal, state, local, or tribal cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid (with limited exceptions for Medicaid benefits paid for an "emergency medical condition," and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing. 

According to DHS, although the receipt of public benefits alone may not justify a finding of inadmissibility on public charge grounds, an applicant's current receipt of one or more of these public benefits does mean that he or she is currently a public charge, and suggests that the alien may continue to receive public benefits in the future and be more likely to continue to remain a public charge, which makes it one of  the heavily weighed negative factors. 

Receipt of Public Benefits in the Past Three Years

In addition, DHS proposes that the applicant's receipt of public benefits within the past 3 years immediately preceding his or her visa application also carries significant weight in determining whether he or she is likely to become a public charge.  In making the determination, DHS is proposing to consider whether the applicant received multiple benefits, how long ago the benefits were received, and also the amounts received. 

Previous Public Charge Finding

Similarly, previous finding of inadmissibility or deportation based on public charge grounds is an indication that the individual will likely become a public charge in the future again. However, applicants may present rebut positive evidence to show that their current circumstances outweigh the negative effects of the previous public charge finding. 

Affidavit of Support (Form I-864) Alone is Not Sufficient

For a long time, the overseas consular officers and the U.S. immigration officers have relied mostly on the Affidavits of Support (I-864 form) executed by financial sponsors as proof that the visa applicant will not burden the U.S. society. But with the changes in the State Department's Foreign Affairs Manuel (FAM) that happened in January 2018, I-864 becomes only a "positive factor" in the totality of the circumstances analysis. With the changes, consular officers are now also assessing the relationship between visa applicants and their joint sponsors. An Affidavit of Support that executed by joint sponsors could be rejected under public charge ground based on an absence of a familial connection between the applicant and the joint sponsor.

The new Declaration of Self-Sufficiency (Form I-944)

With the proposed rule, the focus has shifted from the U.S. petitioner to the intending immigrant. The Affidavit of Support is still required, but it is just a starting point. When Form I-864 alone is insufficient, DHS would then require adjustment applicants to submit a Declaration of Self-Sufficiency (Form I-944) to demonstrate they are not likely to become a burden to the U.S. society. Applicants who are seeking an extension of stay or change of status may also need to file Form I-944 on DHS's discretion. The proposal also suggests that USCIS may become more likely to require surety bonds through a Form I-945. The bond serves as a  guarantee from visa applicants to the United States that they will not abuse public benefits and become a charge on American taxpayers.

Heavily Weighed Positive Factors: 250% Above Poverty Guidelines

The only positive factor that DHS proposes to consider is financial assets and income. DHS uses the Federal Poverty Guidelines (FPG) to determine if an applicant is financially eligible to be issued a green card. For many years, the threshold number used is 125% of the FPG. However, DHS now proposes to raise the threshold number to 250%. With this test, if an applicant is in possession of significant income, assets, and resources of at least 250% of the FPG, his/her application is more likely to be approved. For 2018, 250% of the FPG is $41,150 for a family of two and $62,750 for a family of four.

Conclusion

The proposal is opened for public comments right now. After DHS considers public comments received on the proposed rule, DHS plans to issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.  The new policy, once approved, will almost certainly make it more difficult for foreigners with less financial resources to immigrate to the U.S. 


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