Immigrants could be denied green cards, new visas, or visa renewals if they apply for or receive income tax credits or other benefits, according to a draft rule obtained by the Washington Post.
The proposed rule stems from President Trump’s Memorandum for the Secretary of State, the Attorney General and the Secretary of Homeland Security. Issued last year, that memo called for more stringent vetting of visa applications and other immigration benefits.
Even if DHS publishes this proposed rule today in the Federal Register—the first step to finalizing a rule—it will be subjected to a review by the Office of Management and Budget and a 60-day public comment period. Whether you or your family use tax credits or other benefits depends on your unique situation. However, the Alcorn Immigration Law team stands ready to consult and advise you on the best path moving forward for you and your family.
When granting admittance into the U.S. or green cards, U.S. Citizenship and Immigration Services (USCIS) already considers whether an applicant may become a “public charge.” Currently, an individual is considered a public charge if he or she depends on the government for cash assistance or requires long-term care at government expense. If USCIS deems an immigrant a public charge—or likely to become one—that individual will be denied admission to the U.S. To make that determination, USCIS also considers the following factors:
- Family status
- Financial status
- Education and skills
The proposed rule from the Department of Homeland Security, which oversees USCIS, expands the list of factors and benefits that officials would use to determine whether foreign nationals may become dependent on the government. The rule also expands the list of immigrants who could be evaluated from primarily green card applicants to those who apply to extend their visa or change to another visa.
The proposed rule—called “Inadmissibility on Public Charge Grounds—would:
- Give USCIS officials discretion to require immigrants who are filing extension-of-stay or change-of-status applications to demonstrate they are not using or receiving—nor likely to use or receive—public benefits
- Expand the definition of public benefits from only cash assistance requested or received by the applicant to also include:
- Non-cash assistance, such as tax credits or health insurance subsidies.
- An applicant’s dependents, including children born in the U.S., requesting or receiving public benefits.
- Assistance not just from the federal government, but state, territorial, tribal, and local entities as well.
- Past requests or receiving a fee waiver for an immigration benefit.
- Lower the threshold for determining whether an immigrant may become a public charge. Currently, USCIS officials use the standard of whether an immigrant is “primarily dependent on the government” using a 50% threshold. But that would change to using one or more public benefits.
- Automatically consider a foreign national previously deemed inadmissible or deportable based on public charge grounds a high risk of becoming a public charge again.
- Require sponsors who submit an affidavit of support on behalf of a foreign national for family-based green cards and some employment-based green cards to provide additional info or submit to an interview.
The proposed rule details how USCIS officials will determine whether a foreign national is inadmissible because he or she is likely to become a public charge. Officials would compile and weigh a list of positive and negative factors, such as:
- Whether the individual falls within the age range at which people can work full time and retire with some social security benefits.
- Physical and mental health based on a medical exam.
- Whether the immigrant has private or government-subsidized health insurance.
- The immigrant’s current immigration status.
- The family status of the immigrant, including the number of dependents.
- Assets and income of at least 125 of the most recent Federal Poverty Guidelines (FPG) based on household size. USCIS officials would consider at least 250% of FPG favorable.
- A foreign national’s credit report and score to help determine his or her financial status.
- Whether an immigrant previously found inadmissible or deportable based on public charge grounds.
- Education level attained and English language proficiency, both of which indicate employability.
The proposed rule states a decision that an immigrant is inadmissible on public charge grounds can be overturned on a case-by-case basis. In this case, that individual must post a public charge bond of at least $10,000. USCIS would determine the amount of the bond. Under a public charge bond, the immigrant agrees to not receive any public benefits. The rule also proposes requiring consular officers to require public charge bonds of some immigrant visa applicants.
A valid public charge bond must be in place until the immigrant naturalizes, permanently leaves the U.S., or dies.
The proposed rule will take several months to finalize. That said, we advise you to act now if you’re eligible to switch to another visa or petition for a family-based green card. If these options remain unavailable to you, you should carefully weigh you and your family’s need for public benefits against possible denial of a green card or citizenship in the future.
The Alcorn Immigration Law team can consult and advise you on this very difficult, serious, and complex decision and determine the best path forward. Contact us.