The Department of Security’s (DHS) recently posted a draft rule, which would impact legal immigrants who receive public benefits. The draft rule could change eligibility requirements to obtain a US visa or become a Legal Permanent Resident.
It is currently unclear whether the draft rule will become enforced policy.
Immigration Services (USCIS) currently uses “public charge” to determine whether someone should be excluded from obtaining a visa or becoming a permanent resident. If a foreign national is found to be a public charge during their application to enter the US or adjust status, they cannot become Legal Permanent Residents or obtain a visa.
Public charge refers to people that are currently or likely to become “primarily dependent on the government” by receiving public assistance. The current definition focuses on cash-based programs and “long-term institutionalized” care only. The USCIS also currently defines “primarily dependent” on public assistance as “50% or more” dependency.
The proposed draft rule would change a how public charge is determined by:
The proposed rule would expand the definition of public charge to include the following types of public benefits:
Many public benefits could come under this scope which are not currently considered for public charge. These include:
In the draft rule, DHS states it will decide whether or not a foreign national is a public charge based on the “totality of [their] circumstances.”
DHS would weigh all the positive and negative considerations related to a foreign national’s:
For example, possessing health insurance is generally a positive factor in the “totality of circumstances” standard. However, having subsidized insurance would generally be heavily weighed as a negative.
It is unknown whether the rule will be made into policy. The draft rule will be published in the Federal Register with 60 days for comments and changes. It could take a long time before it becomes final rule, and the policy may not be the same at that time.
We recommend watching the situation as it develops. Remain in close contact with your Chugh, LLP immigration attorney for guidance.
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