In this article...

In this article we are going to discuss the public charge rule. Specifically, we will address:

  • What is the Public Charge Rule?
  • What Changes Have Been Made to the Public Charge Rule?
  • Does the New Public Charge Rule Still Apply to Immigrants Seeking Permanent Resident Status?

In this article we are going to discuss the public charge rule. Specifically, we will address:

  • What is the Public Charge Rule?
  • What Changes Have Been Made to the Public Charge Rule?
  • Does the New Public Charge Rule Still Apply to Immigrants Seeking Permanent Resident Status?

What is the Public Charge Rule?

Under US Immigration law, a ‘public charge’ was defined as an individual who is “primarily dependent upon the government for subsistence.” The public charge rule was originally enacted in 1999. This version of the rule treated an individual as a ‘public charge’ if they received cash assistance from the government, such as TANF, SSI or general assistance, or became institutionalized in long-term care paid for by the government.  

What Changes Have Been Made to the Public Charge Rule?

The change to the public charge rule was introduced during the Trump administration and made several changes. First, it changed the definition of a ‘public charge’ to someone who uses certain public benefits for 12 months out of any 36-month period. If an individual used 2 benefits in any one month, that would be counted as two months of public benefits. Second, the change added certain public benefits to the list that would make someone a ‘public charge’. Lastly, it added standards to be used in evaluating whether someone is likely to become a public charge.  

With these changes, the new rule would have allowed officials in the US Department of Homeland Security to deny immigrants permanent residency (also known as a ‘green card’) based on their use of public aid such as food stamps, public housing and some forms of Medicaid. This new rule was originally set to take effect in October of 2019, but was delayed due to legal challenges from entities such as the Illinois Coalition for Immigrant and Refugee Rights. It officially took effect everywhere except Illinois on February 24, 2020. In Illinois, the change was blocked by a federal court order and only applied to applications that were postmarked on or after February 24, 2020.  

The new rule required that applicants for permanent residency submit Form I-944 along with their application for permanent residency, which seeks to discover whether the applicant can sustain themselves financially without help from the US government. Due to the change to this rule, several immigrant community members avoided the use of necessary government assistance because they did not want to chance a negative effect on their immigration case in the future. This avoidance of healthcare and sustenance has had a negative effect not only on the individual’s health and wellbeing, but that is connected the well-being and health of the community as a whole.  

Does the New Public Charge Rule Still Apply to Immigrants Seeking Permanent Resident Status?

The public charge rule applies to people applying for green cards with the US Citizenship & Immigration Services (USCIS), as well as green card holders who leave the US for more than 180 days. The new rule meant that this would also apply to those with temporary visas who sought to extend it. It has never applied to those who already have permanent resident status and are seeking citizenship.  

In early March of this year, the secretary of the US Dept. of Homeland Security announced that the government would no longer defend this rule. Under the new Biden administration, the rule is not within the best interest of the public to continue litigating the validity of this rule. Now, the rule will return to its prior 1999 version, where immigrants may seek most of the public benefits that they qualify for without fear of negatively affecting their chances for permanent residency. This means that only cash assistance and long-term care paid for by the government will qualify you as a public charge.  

For more information on changes being made to immigration law under the Biden administration, check out our article Biden’s New Immigration Plan | Illinois Immigration Law (oflaherty-law.com). There are other factors that may disqualify you for legal permanent resident status such as committing a deportable crime, not following the proper process to obtain status or submitting false information. For more on what can prevent you from getting a green card, click here.

If you have any further questions, or need help with your application for citizenship, the experienced attorneys at O’Flaherty are glad to help. Give our office a call at 630-324-6666 or schedule a consultation today.  

Posted 
April 22, 2021
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