Changes to Public Charge: Implications for advocates & - PowerPoint PPT Presentation

Changes to Public Charge: Implications for advocates & low-income immigrants November 4, 2019

Session Goals Understand the status of litigation and the larger network of administrative ➔ attacks Understand the changes to the rule and how they will impact eligibility for ➔ status Impact of expanded “totality of circumstances” balancing test on low-income immigrants ◆ Scope and nature of public benefits impacts ◆ Be able to counsel clients with questions about public charge ➔

Big Picture - developments in litigation Highlights in decisions: ● Rule is likely beyond scope of DHS authority’s & contrary to law ○ Rule may discriminate on basis of disability ○ Rule is likely arbitrary & capricious; no rational basis for new definition ○ Government failed to consider costs to states & localities; failed to account for public health ○ impacts Use of I-944, new I-485, and all related forms enjoined ○ Feds can’t look back to 10/15 if they later prevail, must set new effective date ○

Big Picture: Web of Administrative Attacks Restrict Access to Benefits Chill Benefits Punish Benefits Use Use

DOS Public DHS Public Presidential Charge Rule Charge Rule Proclamation Final Rule Interim Final Rule ENJOINED NATIONWIDE Goes into effect November 3 NOT YET IN EFFECT ● Applies to green card ● Applies to most visa ● Requires immigrant visa apps & visa extensions applications applicants to have private ● Imposes stricter ● Largely tracks DHS rule insurance or the funds to requirements based on ● Currently not being pay for any medical costs income & family attributes enforced while forms are ● More benefits implicated developed

DOJ Public Fee Waiver Sponsor Charge Rule Deeming & Rule Liability Federal law, not applied Not yet proposed/published New Form in Effect universally ● Eliminates receipt of ● Would change the public ● Includes sponsor income public benefits as a charge ground of in benefits applications ground for a fee waiver deportability ● Sponsor must repay ● New form required as of ● Currently no information benefits received December 2, 2019 on content or timeline ● Enforcement varies ● NOT IN FORCE

HUD Rule Proposed Rule ● Requires all public ● Would require all public housing residents to have housing residents to be qualifying status “qualified aliens” ● Would separate/render ● Would separate/render homeless mixed-status homeless mixed-status families families

Public Charge - Final Rule REMEMBER: This rule is NOT IN FORCE and is currently enjoined nationwide!! The current, unchanged public charge standard should be applied in all cases

Public Charge Inadmissibility - Key changes 1 3 Lowers standard of what Expands programs the government considers to included in the public be a “public charge” charge test 2 4 Decreases weight of Adds a public charge Affidavit of Support while condition to visa holders increasing weight of seeking to extend or change their non-immigrant status applicant’s income and situation

Public Charge - application ● Though ground of both inadmissibility and deportability, this rule only concerns inadmissibility ● The public charge ground of inadmissibility applies to green card and immigrant visa applications, as well as many non-immigrant visa applications ● It does NOT apply to: ○ US Citizens ○ LPRs (unless seeking admission following a trip of +6 months) ○ Statutorily-exempt statuses

Public Charge - definition “An alien….likely at any time to become a public charge is inadmissible” But who is a public charge? ● Old definition: a person who is primarily dependent on the government ● New definition: a person who receives one or more enumerated benefits for more than 12 months out of a 36 month period. Therefore, a person who is likely to receive an enumerated benefit for more than 12/36 months in the future is a public charge, and inadmissible.

Public Charge - definition But how does the government guess the future? They conduct a “totality of the circumstances” balancing test looking at nearly all aspects of your life (including past/present benefit use) to come up with a subjective determination. ● Age ● Health ● Family status ● Assets, resources, and financial status; and ● Education and skills ● + any affidavit of support

Public Charge - exemptions Certain individuals exempted from rule by statute or regulation: ● See section 212.23 for full enumerated list, includes: ○ Refugees & Asylees during application process and when adjusting ○ Amerasian Immigrants (for their initial admission) ○ Individuals granted relief under the Cuban Adjustment Act, NACARA, HRIFA ○ Individuals applying for T & U visas, and T & U visa holders applying to adjust (exemption clarified in final rule) ○ Special Immigrant Juveniles VAWA self-petitioners ○ ○ Applicants for Temporary Protected Status (TPS)

Public Charge - exemptions People in these statuses are exempt from the public charge determination ● when they submit their applications, and will not have benefits use while in an exempt status held against them in any subsequent adjustment application ● Public charge inadmissibility also does not apply to: ○ US Citizens ○ LPRs (unless seeking admission after a trip abroad of +6 months)

Public Charge Inadmissibility - Key changes 1 3 Lowers standard of what Expands programs the government considers to included in the public be a “public charge” charge test 2 4 Decreases weight of Adds a public charge Affidavit of Support while condition to visa holders increasing weight of seeking to extend or change their non-immigrant status applicant’s income and situation

Balancing Test Test remains: totality of circumstances ● Rule reduces weight of affidavits of support to just one of many factors - meaning that applicants’ age, health, family status, financial status & education/skills will weigh more heavily. ● “Heavily weighted” positive & negative factors are considered alongside all other potential factors

Balancing Test Age ● Will the person’s age impact their ability to work? Under 18 Over 61

Balancing Test Health ● Does the individual have a serious medical condition that might impact ability to provide for him/herself? ● Will defer to civil surgeon’s medical exam, unless there is other evidence suggesting the report is not complete.

Balancing Test Family Status ● Does the individual’s household size make him or her more likely to become a public charge? ● Household: ● Spouse and children if residing with applicant ● Other children or spouse that the applicant is obligated to support (≥50%) ● Any other people listed as dependents on tax return ● Anyone who supports the applicant (≥50%)

Balancing Test - Assets, resources, financial status ● If no, can make up with assets totalling 3-5 Is household income over Income & times the value 125% of the federal poverty ● Tax filings for all household members whose Assets income included guidelines? ● Savings, stocks, bonds, real estate, etc. Does the applicant have Health ● In particular, as related to conditions that will assets & resources to cover interfere with the ability to work, attend Costs school, care for oneself foreseeable medical costs? ● Credit score & history Does the applicant have Liabilities ● Mortgages/loans, credit card debt, unpaid liabilities? taxes Has the applicant applied Benefits ● Note that newly-listed benefits only taken into for, been certified for, or consideration post-effective date Use received public benefits ● Will go into detail in next section listed in the rule?

Balancing Test Education and Skills ● Does the applicant have adequate education and skills to obtain/maintain lawful employment at an income sufficient to avoid becoming a public charge? Will look at: ● history of employment (3 yrs tax returns or other credible evidence) ● educational attainment ● occupational skills, certifications and licenses ● English proficiency ● whether individual is a primary caregiver

Balancing Test Prospective Immigration Status ● Expected immigration status and period of entry related to person’s ability to support themselves

Balancing Test Affidavit of Support ● What is the likelihood that the sponsor would actually provide the applicant financial support so that the alien does not become a public charge? Will look at: ● sponsor’s income, assets and resources ● sponsor’s relationship to applicant, including whether sponsor lives with applicant ● whether the sponsor has sponsored other people for green cards