The United States Supreme Court temporarily lifted an injunction against the Administration’s new public charge rules. This decision allows the Administration to enforce the rule once until after the trial. In this post, I will discuss what these new rules mean and how they will affect potential applicants.
The new rules are not new. The public charge ground of inadmissibility has been in effect for decades. Under Section 212(a)(4) of the Immigration & Naturalization Act, any person seeking admission must prove that he or she is unlikely to become a public charge. This ground applies for adjustment of status and consular processing, where immigrants become permanent residents.
The immigration officer must determine inadmissibility using the totality of circumstances approach. This means that the officer uses all available information to make such determination. Factors used in the determination include:
The officer may also consider the form I-864 which the petitioner files with the application. The absence of one of the abovementioned factors should not lead to the officer’s denial of the application.
Not all public benefits prohibit an applicant from receiving permanent residence. Public benefits given to family members will not play a role in the determination. However, public cash assistance for maintenance and money for longterm care at the government’s expense will be considered.
Non-cash benefits such as Medicaid, Children’s Health Insurance Program, Housing Benefits, Child care services, and nutrition programs do not play a role in the determination.
There are some eligibility criteria to which the public charge does not apply, including refugees and asylees, and beneficiaries under the Violence Against Women Act. Permanent residents who would derive citizenship upon admission into the United States also fall under the rule.
The new rule creates a new form, I-944 Declaration of Self-Sufficiency, a 19-page form to be filled by the Beneficiary. The form asks for information about the Beneficiary and his or her assets. It also asks for information about the Petitioner and the family members. The new form is not yet being used since there are many court orders stopping the new rule. It is unclear whether USCIS would be using the form soon as a consequence of the Supreme Court’s order.
I, perhaps unsurprisingly, am against the new rule. I do not believe it is needed. The new rules seem punitive and restrictive. For as long as I have practiced immigration law, officers were able to consider the same factors to determine the probability of public charge. However, the new 19 pages form seems repetitive and asks for the same information in the I-864. We will see what the court’s ruling will mean.
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