On February 12, 2018, it was reported that the Trump Administration had proposed a new regulation, which, if implemented, would radically overhaul the “public charge” ground of inadmissibility and potentially render thousands of visa applicants across the globe inadmissible to the United States, on public charge grounds.

The proposed new regulation would make it significantly more difficult for visa applicants to prove that they are not at risk of becoming a public charge in the US, by widening the definition of the term “public charge” to include any form of Government assistance and raising the bar in terms of the evidence required. If enacted, it is expected that the elderly and disabled will be the most adversely impacted by the proposed new regulation.

The Current System

At present, when an individual files an application for an immigrant visa under the Immediate Relative or Family Preference visa categories, the visa applicant must prove by a preponderance of the evidence that they are not inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act, on the basis that they are at risk of becoming a public charge.

At present, an individual is considered to be at risk of becoming a public charge if they are likely to be “primarily dependent” on cash assistance for subsistence (for example, Supplemental Security Income or Temporary Assistance for Needy Families) or likely to receive Medicaid for long-term care, in the event the immigrant visa is granted.

At the US Embassy interview, the Consular Officer will consider all of the evidence before them and determine if the visa applicant is likely to be primarily dependent on cash assistance for subsistence or is likely to receive Medicaid in the long-term, in the event the immigrant visa is granted.

In practice when adjudicating this issue, the Consular Officer will consider the Affidavit of Support filed by the petitioner (and joint sponsor, if necessary) and the evidence of income, savings and assets furnished. In the vast majority of cases, a skillfully-drafted, properly executed Affidavit of Support will suffice to establish that the visa applicant is not at risk of becoming a public charge in the US, in the absence of any evidence to the contrary.

However, the draft new regulation proposes to fundamentally overhaul the approach taken by the US Department of Homeland Security and the US Department of State to the public charge ground of inadmissibility and, in doing so, departs from over a century of established legal precedent.

 

The Proposed New Regulation

  1. A Wider Definition of the Term “Public Charge”

Under the proposed new regulation, the petitioner and, if applicable, a joint sponsor will remain liable to file a statutory-compliant Affidavit of Support. However, the Affidavit of Support will be considered in the context of the totality of the visa applicant’s circumstances, with greater emphasis on the existence of so-called “heavily weighted positive factors” and “heavily weighted negative factors”.

Fundamentally, under the proposed new regulation, the definition of the term “public charge” is broadened to encompass any individual who is likely to require  “ANY Government assistance” at any time.

As a result, visa applicants who may become eligible for any Government assistance at any time – including any of the following Government assistance programs – will be considered inadmissible to the US on public charge grounds and will be denied an immigrant visa, on that basis:

  • Any public assistance program that provides cash assistance for subsistence, including Supplemental Security Income and Temporary Assistance for Needy Families.
  • Health-based assistance programs including, inter alia, Medicaid, the State Children’s Health Insurance Program and the Premium Tax Credit.
  • Nutritional assistance, including the Special Supplemental Nutrition Program for Women, Infants, and Children and the Supplemental Nutrition Assistance Program.
  • Educational assistance, including Pell Grants and Head Start.
  • Homelessness, housing, transportation and utility assistance, including the Low Income Home Energy Assistance Program.

Alarmingly, under the proposed new regulation mere eligibility for any of the aforementioned programs would be sufficient to render a visa applicant inadmissible to the US on public charge grounds under section 212(a)(4) of the Immigration and Nationality Act and lead to the denial of an immigrant visa application, even if the intending immigrant has no intention of actually claiming assistance from the program in question. In effect, the visa applicant would be penalized simply for being eligible for a Government assistance program.

Moreover, the proposed new regulation would prevent US citizen children in immigrant families from claiming assistance from the above Government assistance programs, simply by virtue of the fact they are being raised in an immigrant family – thereby undermining the very raison d’etre of Government assistance, which is to provide assistance to US citizens in need.

 

  1. The Likely Impact of the Proposed New Regulation on Disabled and Elderly Immigrant Visa Applicants

Sadly, the proposed new regulation is likely to disproportionately impact disabled and elderly immigrant visa applicants.

As explained above, under the proposed new regulation, public charge determinations will be based on the totality of the visa applicant’s circumstances, including a number of mandatory statutory factors which may be weighed positively or negatively, depending on how the factor impacts the visa applicant’s likelihood to become a public charge.

Under the proposed new regulation, if a visa applicant has a “costly medical condition” and is unable to provide evidence of unsubsidized health insurance, any prospect of obtaining unsubsidized health insurance or other non-Governmental means of paying for treatment, that will be deemed a “heavily weighed negative factor” which would “weigh heavily in favor of a finding that an alien is likely to become a public charge”. In short, a visa applicant who has the misfortune to suffer from an expensive medical condition and who is unable to provide evidence of either unsubsidized health insurance or a prospect of obtaining unsubsidized health insurance may find it very difficult to prove to the US Department of Homeland Security and/or the US  Department of State that they are not at risk of becoming a public charge in the US and, as a result, may be denied a US immigrant visa.

Similarly, under the proposed new regulation, if the visa applicant is a “healthy person” of employable age with US income, savings or assets of at least 250% of the Federal Poverty Guidelines, that will be considered a “heavily weighted positive factor” in determining whether the visa applicant is likely to be a public charge in the US. It is noteworthy that a visa applicant with a household size of four would need to earn $62,750 a year in order to benefit from the “heavily weighted positive factor” – nearly $12,000 a year more than the median earnings of full-time, white male workers.

Consequently, it is likely that visa applicants who are not of employable age (for example, the elderly and the retired) will find it more difficult to persuade an Immigration Officer that they are not at risk of becoming a public charge in the US and, indeed, may potentially find themselves inadmissible to the US on that basis, if the proposed rule is enacted.

Conclusion

At Davies Legal Immigration, we believe the proposed new regulation is discriminatory, unfair and unjust.  The new regulation is likely to make it very difficult for immigrant visa applicants to prove by a preponderance of the evidence that they will not become a public charge in the US and, as a result, is likely to increase the number of US immigrant visa denials. When the draft new rule is published for public consultation, we hope that it is the subject of rigorous scrutiny and is ultimately rejected by the US public. We will monitor developments and endeavor to provide updates.

Davies Legal Immigration

At Davies Legal Immigration, we represent clients in connection with all types of family-based US immigration. We provide a comprehensive service, including clear and concise advice from the outset, a pragmatic approach and efficient working practices. We understand the importance of our cases to clients and adopt a well-reasoned, diligent approach, in order to maximize your prospects of success. Call now to speak to a licensed US immigration attorney and obtain a free, no obligation quote.

Published: 4th March 2018