On September 22, 2018, the Trump Administration announced that they would be publishing a Notice of Proposed Rulemaking (NPRM) related to the public charge ground of inadmissibility

Under section 212(a) (4) of the Immigration & Nationality Act (INA). The NPRM was published in the Federal Register on 10/10/2018. After the public commentary 60 period, the DHS will review the comments and issue a final rule which will include an effective date.

    The proposed rule is designed to change the standard that is used when determining whether an alien is likely at any time in the future to become a public charge. Public charge rules and or statutes were established as far back as the 1800s, to limit government spending on indigent non-U.S. nationals. The Immigration and Nationality Act (INA) 212(a) (4) states that any alien may be denied admission into the U.S. or adjustment to lawful permanent resident status if he or she is “likely at any time to become a public charge… In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien’s – (1) age; (II) health; (III) family status; (IV) assets, resources and financial status; and  (V) education and skills”. USCIS Guidelines set in 1999 that defined public charge as a person who is or is likely to become “primarily dependent” on government for public cash assistance for income maintenance or institutionalized for long term care. Typically, an I-864, Affidavit of Support Form along with the supporting documentation is sufficient to prove income and consistency of income that satisfies a public charge determination.

    The proposed rule seeks to stop the excessive abuse of government services by aliens. This proposed rule sets forth a different standard to determine whether or not an alien is likely at any time in the future to become a public charge. This standard weighs the totality of minimum factors (age, health, family status, assets, education and skills); heavily weighted negative factors and heavily weighted positive factors. If you are confused and befuddled by this proposed new standard of review, join the club. If you are trying to assess underlying crisis that prompted such a change, join the club.  The existing rule and its implementation has been working well. There were no reports of rampant abuse of aliens coming to the U.S. only to become primarily dependent on the government. Studies, including governmental studies have shown that immigrants boost tax revenue, grow the Social Security and Medicare Trust Funds, create jobs and elevate GDP. Politics aside, these changes serves no purpose.

    In addition to changing the standard of review, the proposed rule seeks to make the following changes:

(I) make nonimmigrants who would be deemed public charges ineligible to apply for a change of status and an extension of stay;

(II) add an alien’s prospective immigration status, expected period of admission and affidavit of support when required to the list of minimum factors;

(III) redefine “public charge”  as anyone who uses certain public benefits even for brief periods and minimal amounts;

(IV) expand the list of benefits to include Medicaid and SNAP and

(V) establish a 36-months review period of use of government benefits prior to filing.

    The proposed rule to change to determine who is a “public charge” is simply a class-based immigration policy. It is too complex and confusing to implement. It is unduly burdensome on the applicant to document. Fairness and consistency will often be sacrificed in the adjudication process.  Tragically, it will deter applicants from seeking important services like Head Start, SNAP and CHIP for their United States citizen children for fear of being detained. In stark contrast to the quote from the Emma Lazarus’s sonnet, New Colossus, this rule seems to state, “ Give me your wealthy, your powerful and educated masses yearning to breathe free.”   

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