New “Public Charge” Definition

In recent days clients and friends have contacted our office with questions and concerns about the new â€Public Charge†definition that U.S. Citizenship and Immigration Services (USCIS) will be putting into effect on October 15. The new rule is over 800 pages long. So, we thought it would be helpful to explain exactly what is going on with this issue.

Inadmissibility based on the fear that the new immigrant may become a burden to US society has been part of our immigration laws since 1891. So, the concept is nothing new. What has changed is how the government will now interpret this definition.

Under the new definition someone could fall under the Public Charge exclusion if the individual has received one or more “public benefits†for more than 12 months, in the aggregate, within any 36 month period. So, for example if someone received two different public benefits for two months it would count as 4 months of benefits.

Public benefit is now defined as receiving any cash benefit for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most (but not all) forms of Medicaid, and certain housing programs.

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

In a major expansion of this rule it will now be applied not only to those seeking permanent status (green cards) but also to non-immigrant aliens (e.g. students, visitors, etc.) who are seeking to change or extend their temporary status. Court challenges are expected to delay or even cancel the implementation of this new policy.

Nevertheless, this is clear evidence of the Administration’s new immigration approach that favors high skilled workers at the expense of certain family based petitioners and others who may temporarily fall on hard times.