DHS Proposed Rule on Public Charge Restricts Nonimmigrants and Immigrants
Jan 21, 2019
Dallas, TX (Law Firm Newswire) January 21, 2018 – On September 22, 2018, the Department of Homeland Security (DHS) announced a draft proposal that would make it more difficult for foreign nationals to gain entry into the United States either on a temporary or permanent basis if such persons are deemed likely to be reliant on public benefits such as Medicaid or food stamps.
The Trump administration is aiming to tighten the “public charge” rule by presenting revised criteria for how the government evaluates the various types of federal assistance a non-immigrant or immigrant has used or is expected to use. The DHS has proposed to define a public charge as someone who “receives one or more public benefits” for housing, health and other basic necessities.
Simply using public benefits would not automatically make someone ineligible for a visa or green card. DHS proposes a complex formula to determine how much support an individual can receive before such person would be ineligible for change of status or extension of stay. The new proposal calls for a comprehensive inventory of an immigrant’s history and ability to support themselves financially.
“It appears that USCIS’ proposed rule expands concerns for public charge to even a simple extension of visitor stay in the United States or change of status, is a solution in search of a problem,” said Stewart Rabinowitz of the Dallas and Frisco law firm of Rabinowitz & Rabinowitz, P.C. “What are the facts which justify the complicated evidence a tourist who wants to stay in the United States for an additional period must provide? Are there facts showing widespread use of public benefits by tourists? Or of foreign students using public benefits? Or is it mean spiritedness in making foreign nationals seeking legal admission as immigrants or legal extensions of temporary stay or legal change of status less welcome in the United States? Without hard evidence justifying the rule, just what supports the need for such a rule?”
Currently, applications are rarely rejected on public charge grounds as the definition of the term is narrow and has not been formalized in a regulatory sense. The revised approach would include Medicaid, SNAP (food stamps), TANF/SSI, Section 8 and other housing benefits, and low-income Medicare Part D subsidies instead of just cash benefits.
The proposed rule states that public charge inadmissibility would be based on the “totality of the circumstances” including factors such as age, health, family status, financial standing and education, among others. The draft proposal received more than 210,000 comments during a 60-day public comment period that ended on December 10, 2018. Although the DHS is required to review the comments prior to publishing the final regulation, it is not obligated to make any revisions. Medical associations and immigrant rights groups from across the United States criticized the proposal for its overly broad definition of what constitutes a public charge. They expressed concerns that it would prompt thousands of needy families to withdraw from necessary social services for fear of hurting their immigration status.
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