New Challenges

[Randy W]

It looks to me like Obamacare/ the Affordable Health Care are left out - i.e., will NOT be considered as public assistance

 

Likewise, the Earned Income Tax Credit does not appear to be a factor

Edited September 23, 2018 by Randy W (see edit history)

[KevinNelson]

My wife now has her permanent green card; we had been for a while under provisions of "ObamaCare." In California, anybody earning less than about $70,000 per year is subject to ObamaCare assistance, far in excess of the typical 1.25 times above the poverty line level (formerly?) required (assuming memory serves me correctly). The big question right now is how things will play out for future legal immigrants, given the way things are boiling nationally.

[Allon]

I know of several recent Chinese friends who have gotten their citizenship and 10 year cards when they were on Obamacare and received food stamps (SNAP). So I guess this regulation as it would be properly called, not a law has not been fully disseminated. All the executive branch can do is interpret what the law says or does not say. They are still subject to oversight.

 

In one of my many lives, I worked a poverty program for 10 years. I managed the rules regarding eligibility for incoming cases that came from prisons, mental institutions, and the streets. By far most of the cases came from the streets, but a large percentage were refugees from other countries.

 

By definition, they were already on public assistance. They were given it as a matter of routine when they entered the country and applied for asylum. Various relief agencies also assisted them. And most I saw were not from Mexico or South America. They came from Cuba, Bosnia, Serbia, Croatia, China, Russia, Ukraine, Czech Republic, Poland, Vietnam, Cambodia, Laos. (Hmmmm is there a pattern here?)

 

And we were managed by regulations written by a bunch of bureaucrats in Labor, Welfare, Agriculture, and Education for the most part. They interpreted the law as written by the Constitution and the Congress. If they deviated at all from the intent of those laws, they were inevitably caught by the courts or Congress themselves in their hearings. It took time. But meanwhile people's lives were affected unless they knew of the black market in food stamps and welfare, which will probably flourish if this regulation goes into effect fully.

 

I remember too when I had a lawyer handle our paperwork to get my wife here. He said any promises you make regarding public assistance or especially the one where you assure that you will take care of your wife even though she divorces you and regardless of any other legal arrangement to the contrary, has already been challenged in court. Just do not sign anything that says you know that. And if you run into trouble, get a lawyer fast.

 

Good advice. Sooner or later guys like Steven Miller will need one (or 17) too.

[Randy W]

Looks like this is supposed to take effect in October - see discussion above

 

 

New Rules Can Deny Green Cards For Immigrants On Food Stamps

[Allon]

I wonder if this new rule would apply to those who already have a green card and are applying for extension (10 year, etc). I think as long as the sponsor and the holder are married, benefits would come to the husband (assuming sponsor) rather than the holder of the card, the same way food stamps etc are given to a child who is a US citizen to a family who are not or are other green card holders.

 

"The decision is not retroactive says" a lot, but is vague in that regard. The 10 year holder would have already gone through a review at 2 years.

 

And employment when the sponsor and the holder are retired when they hit the 10 year? I wonder how these Draconian rules will apply.

[newacct]

I wonder if this new rule would apply to those who already have a green card and are applying for extension (10 year, etc). I think as long as the sponsor and the holder are married, benefits would come to the husband (assuming sponsor) rather than the holder of the card, the same way food stamps etc are given to a child who is a US citizen to a family who are not or are other green card holders.

 

"The decision is not retroactive says" a lot, but is vague in that regard. The 10 year holder would have already gone through a review at 2 years.

 

And employment when the sponsor and the holder are retired when they hit the 10 year? I wonder how these Draconian rules will apply.

The rule on inadmissibility mostly does not affect people who already have green cards, as permanent residents are not considered to be applying for admission, unless they leave the country for more than 180 days or engage in illegal activity abroad.

[Allon]

The word "admission" or "admissibility" is used throughout the article but is applied to an application for PLR, permanent legal residency, as is admission to the US (i-94, etc.). There is no distinction between 2 year and 10 year. I would agree that a 10 green card should not be denied just due to prima facie evidence of being able to remain in the US under the circumstances listed. But "mostly" means one 10 year application for renewal (which is a term missing here) can be denied. Now given that there is no retroactive denial, most renewals would probably ("mostly") be renewed but it is not clear in the article or in others I have looked at. Maybe such is the intent -- to be vague.

 

A 10 year application for extension is still called a Green Card. Terms in this article are used for instance that require years of employment history and tax returns going back 3 years, beyond the normal 2 year application for a 2 year green card. (These days a 2 year green card is renewable at 10 if the USCIS deems it so.)

 

Federal law already requires those seeking green cards and legal status to prove they will not be a burden to the United States, or what’s called a “public charge,” but the new rules, made public on Monday, detail a broader range of programs that could disqualify them. (Bold is mine)

 

 

Vague terms.

[Randy W]

from Berardi Immigration Law

 

Can a U.S. Green Card be Revoked?

 

. . .your rights as a lawful permanent resident are not absolute. The Immigration and Nationality Act (INA) sets forth various grounds upon which a non-citizen may be deported. Keep in mind, however, an individual’s status as a lawful permanent resident does not expire. The physical green card must be renewed every 10 years (similar to a drivers license), but the individual’s status is permanent.

Revoking a Green Card

Having your green card revoked is actually quite difficult but not impossible. A green card may be revoked based on numerous grounds including: fraud, criminal activity and/or abandonment.

1. Fraud: . . .
2. Criminal activity: . . .
3. Abandonment: . . .

 

 

 

 

The "abandonment" cause is really the only one that should affect us or our spouses, although I suppose the "fraud" consideration could be invoked if your financial situation were mis-represented.

I suspect this new policy is intended more to appeal politically to a certain audience.

 

The I-864 is simply on file as a legal document, an "Affidavit of Support" - no updates are required.

[Randy W]

If your financial situation or that of your sponsor is such that the Immigrations Officer makes a determination that you are unlikely to become a "public charge" while in the United States, then you may be approved as a legal permanent resident. That status is permanent, and can only be revoked voluntarily, or by an Immigrations judge. There is no such thing as a public charge violation.

[Randy W]

Same link as before -

 

Public Charge Fact Sheet

 

On Aug. 14, DHS will publish the Final Rule related to the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act. We will provide additional information before the rule is effective on Oct. 15. For more information, see the Final Rule on Public Charge Information page.

 

 

 

The rule applies to applicants for admission, aliens seeking to adjust their status to that of lawful permanent residents from within the United States, and aliens within the United States who hold a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.

 

[Randy W]

If your financial situation or that of your sponsor is such that the Immigrations Officer makes a determination that you are unlikely to become a "public charge" while in the United States, then you may be approved as a legal permanent resident. That status is permanent, and can only be revoked voluntarily, or by an Immigrations judge. There is no such thing as a public charge violation.

 

Not entirely correct - from MyAttorneyUSA

 

 

Deportability on Public Charge Grounds

 

 

Three-Part Test in the Public Charge Deportability Context

At 64 FR 28691, the Public Charge Field Guidance sets forth a three-part test for determining whether an alien is deportable on public charge grounds. The test was established in the Matter of B, 3 I&N Dec. 323 (BIA and AG 1948). Interestingly, this Board of Immigration Appeals (BIA) and Attorney General (AG) decision interpreted the public charge provision of the Immigration Act of 1917. However, because the language of the public charge provision has changed little, the decision remains good law. The Field Guidance describes the three-part test as follows:

• 1. “The state or other government entity that provides the benefit must, by law, impose a charge or fee for the services rendered to the alien. In other words, the alien or designated relatives or friends must be legally obligated to repay the benefit-granting agency for the benefits or services provided, if there is no reimbursement requirement under law, the alien cannot be said to be a public charge.”

The first part of the test puts the emphasis on “reimbursement.” In order for the benefit to qualify, it must be a benefit for which repayment is obligated. If reimbursement is not required under law, receipt of the benefit cannot render the alien removable on public charge grounds. We will explain after we discuss step 3 why this renders the scope of the public charge deportability provision very narrow.

• 2. “The responsible benefit-granting agency officials must make a demand for payment for the benefit or services from the alien or other other persons legally responsible for the debt under federal or state law (e.g., the alien's sponsor).”

Under the Matter of L, 6 I&N Dec. 349 (BIA 1954), the benefit-granting agency must make the demand for repayment within five years of the alien's entry in order for the alien to be deportable. Furthermore, in order for the alien to be deportable on public charge grounds as a result of the failure of his or her sponsor to repay the agency, the benefit-granting agency must “take all available actions to collect from the sponsor.” This includes filing appropriate actions in court and taking all steps available under the law to enforce a final judgment against the alien's sponsor or other party obligated to repay the agency. Please see our full article to learn about the concept of sponsor liability [see article].

• 3. “The alien and other persons legally responsible for the debt fail to repay after a demand has been made.”

If the alien and/or other persons responsible for the repayment of the debt fail to repay the debt after step 2 has been completed, the alien becomes deportable on public charge grounds. It is important to note that steps 1 and 2 must be satisfied before an alien is deportable under section 237(a)(5) of the INA.

Interestingly, the Field Guidance explains that “[d]eportations based on public charge grounds have been rare…” This is because most aliens in the United States are unlikely to have a legal obligation to repay public benefits. Accordingly, this means that benefit-granting agencies are generally unlikely to demand such repayment. The situation in which it is likely that (1) there will exist a legal obligation to repay public benefits and (2) such repayment would be demanded are situations in which a sponsor is required in order for the alien to procure an immigrant visa (through adjustment of status or consular processing). This makes the public charge deportability ground most pertinent in family-sponsored immigrant visa cases [see category].

 

[Randy W]

Perhaps more important for most of us, from the same page

 

 

 

Relationship to Naturalization

There is no public charge test for naturalization. At 64 FR 28693, the Field Guidance explains the limited situation in which an alien charged as removable under public charge grounds could face indirect complications related to public charge issues.

 

[Allon]

Not sure I agree with some of the statements from this law firm considering the August 12 release from USCIS.

 

https://www.uscis.gov/news/news-releases/uscis-announces-final-rule-enforcing-long-standing-public-charge-inadmissibility-law

DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. 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 regulation also excludes 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.

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

Importantly, this regulation does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.

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; the actual bond amount will be dependent on the individual’s circumstances.

This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect at 12:00 a.m. Eastern on Oct. 15, 60 days from the date of publication in the Federal Register. USCIS will apply the public charge inadmissibility final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the 1999 Interim Guidance.

USCIS will provide information and additional details to the public as part of public outreach related to the implementation of this rule. In the coming weeks, USCIS will conduct engagement sessions for the public and other interested groups to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.

For more information on USCIS and its programs, visit our website at uscis.gov or follow us on Twitter, Instagram, YouTube, Facebook and LinkedIn.

 

 

I have no doubt this will be challenged in court. Already lawyers are advising their immigration clients who apply for citizenship to make sure they meet the new guidelines. Some have already been denied citizenship and also will lose their green card.

 

https://www.nbcnews.com/politics/immigration/now-trump-administration-wants-limit-citizenship-legal-immigrants-n897931

Edited August 14, 2019 by Randy W
fixed link (see edit history)

[Randy W]

 

Same link as before -

 

Public Charge Fact Sheet

 

On Aug. 14, DHS will publish the Final Rule related to the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act. We will provide additional information before the rule is effective on Oct. 15. For more information, see the Final Rule on Public Charge Information page.

 

 

 

The rule applies to applicants for admission, aliens seeking to adjust their status to that of lawful permanent residents from within the United States, and aliens within the United States who hold a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.

 

 

 

 

This Final Rule is now posted

[Randy W]

Not sure I agree with some of the statements from this law firm considering the August 12 release from USCIS.

 

https://www.uscis.gov/news/news-releases/uscis-announces-final-rule-enforcing-long-standing-public-charge-inadmissibility-law

DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. 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 regulation also excludes 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.

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

Importantly, this regulation does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.

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; the actual bond amount will be dependent on the individual’s circumstances.

This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect at 12:00 a.m. Eastern on Oct. 15, 60 days from the date of publication in the Federal Register. USCIS will apply the public charge inadmissibility final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the 1999 Interim Guidance.

USCIS will provide information and additional details to the public as part of public outreach related to the implementation of this rule. In the coming weeks, USCIS will conduct engagement sessions for the public and other interested groups to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.

For more information on USCIS and its programs, visit our website at uscis.gov or follow us on Twitter, Instagram, YouTube, Facebook and LinkedIn.

 

 

I have no doubt this will be challenged in court. Already lawyers are advising their immigration clients who apply for citizenship to make sure they meet the new guidelines. Some have already been denied citizenship and also will lose their green card.

 

https://www.nbcnews.com/politics/immigration/now-trump-administration-wants-limit-citizenship-legal-immigrants-n897931

 

 

That NBC News article is from Nov., and seems to be pointing out that your green card status is reviewed when applying for citizenship to see if the card was inappropriately awarded - NOT that public charge considerations apply to citizenship applications (that is unclear to me).