Officially Returning to Pre-2019 Public Charge Rule to Determine Admissibility | Jackson Lewis P.C.

After years of litigation followed by uncertainty, the Department of Homeland Security (DHS) has taken official action to issue a new definitive rule that “restores the historical understanding of a ‘public indictment’ that has held for decades . . . .” The new rule, effective December 23, 2022, essentially codifies the Interim Field Guidance that was in effect from 1999 to 2019.

In 2019, the Trump administration began considering additional public health and nutritional assistance services as part of public billing. This 2019 rule, enacted through litigation, deterred immigrants and their families from forgoing government services to which they were entitled. It also created a lot of confusion in the immigrant community about what was and was not allowed. Through the passage of the new final rule and public outreach, DHS hopes to achieve its goal of bringing public prosecution judgment “in line with America’s core values” and restoring trust in the system.

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Under the “new” rule, public fee determination is based on:

  • The non-citizen’s age, health, wealth, resources, financial status, marital status, education, and skills;
  • The applicant’s past or current receipt of public cash benefits for income support, such as
    • Supplemental Security Income (SSI);
    • State, Territory, Tribal or Local Income Support Cash Benefits (often referred to as “General Assistance”); or
    • Cash benefits as part of the temporary aid for needy families (TANF) to secure income.
  • Long-term institutionalization at state expense; and
  • Form I-864, Affidavit of Support, if required.
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USCIS has clarified that past or current receipt of the above cash benefits does not, by itself, make an applicant ineligible. It is only one factor in the assessment, which involves considering all of the circumstances at the time the application is made. Indeed, since the public prosecution decision is based on the totality of the circumstances, it is possible that an applicant who has never received public benefits in the past could still be declared inadmissible. In addition, the public levy rule requires (and never has) the repayment of public funds to avoid an inadmissibility finding.

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Public Contributions not covered by the Final Rule include, but are not limited to:

  • Medicaid and other health insurance and healthcare service programs;
  • Children’s Health Insurance Program (CHIP);
  • nutrition programs;
  • housing benefit and childcare services;
  • Head Start;
  • vocational training programs;
  • COVID-19 vaccines and public services related to the coronavirus pandemic; and
  • Benefits received by family members of the applicant (unless this benefit is the only means of financial support for the family).

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