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By: Kenneth Levine
A proposed Trump administration change to the “public charge” regulations, expected to be issued within the next few months, will dramatically alter the process for how Immigration Officers determine eligibility for citizenship or permanent residency. USCIS designates an applicant as a “public charge” if they are likely to become predominantly dependent on government benefits for long term survival. Currently, USCIS Officers focus on the petitioning sponsor’s income (or a cosponsor’s income if the petitioner’s income falls below the required amount) in assessing eligibility. Section 212(a)(4) of the Immigration and Nationality Act currently allows USCIS to deem a permanent residency applicant ineligible if they are likely at any time to become a “public charge.” Although the current regulation appears to afford an Immigration Officer considerable discretion in assessing an Applicant’s public charge prospects, in practice there is virtually no discretion. In other words, if the petitioner or the co-sponsor’s current income satisfies the affidavit of support, then USCIS will typically have no justifiable basis to deny an application on public charge grounds.
The new regulations would substantially redefine “public charge” criteria by creating new grounds of ineligibility if the foreign national (or immediate family members) ever obtained health insurance through the Affordable Care Act (ACA) or signed up for supplemental assistance programs for financial and/or nutritional assistance for their U.S. citizen children. Moving forward, USCIS Officers will be allowed to analyze a foreign national applicant’s income, employment history, job skills, health status, assets, and any family history of having received public health benefits (no matter if they were legally entitled to receive such benefits). This new approach will dramatically expand USCIS authority to deny a case based on the arbitrary whims of an Officer who looks unfavorably on an applicant’s job history or the amount of money they have saved in the bank.
At this point it is unknown whether there will be different public charge standards for permanent residency or citizenship applicants. Regardless, FMG Immigration Attorneys fully expect that federal litigation will ensue once USCIS attempts to implement the new public charge regulations.
For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].