We are going to discuss the public charge roadblock.
We are going to discuss what is a public charge.
. We are going to discuss what this new public charge
set of rules means for green card applicants.
And we are going to discuss what immigrants
who would like to become permanent residents
need to prepare for in the future.
Let's begin with the issue of what is a public charge?
A public charge is basically someone who cannot support themselves,
who cannot survive without long-term government assistance,
without reliance on government assistance as
a main source for their day-to-day living needs.
It is, what lawyers call, a prospective test,
meaning that it is a little speculative.
It looks at what will become of the person
seeking green card benefits at the time they're applying.
It is not necessarily based of what will happen
but is based on what the officer thinks will happen.
That is crucial to know because in your preparation,
you are going to have to know that the officer is looking at this issue and how to deal with it.
We will get to that in a moment.
Who will be affected?
Well, it is going to be all green card applicants.
There are right now two different categories,
so to speak, of individuals that fall subject to the new public charge rules.
The first set is already in place,
and those are immigrants seeking to become permanent residents from abroad,
or seeking a visa to enter to United States.
The rules went into effect in January.
Those types of issues are already being raised in consular processing interviews.
There have been some reports of not so much good stuff happening,
which indicates that for those that are going to be applying here,
which is the second category,
you need to get ready because the changes, although they're not in place yet,
they're coming.
If they have come to the consular processing offices,
they are coming to the local USCIS offices very soon.
Those who are seeking green cards locally
in the United States at a local USCIS office are going to be affected.
Those rules, as I said, are proposed.
They are not necessarily in effect.
And there are some exclusions to those seeking adjustment of status here
in the United States such as asylees and refugees,
individuals seeking VAWA benefits or U visa benefits,
some NACARA applicants,
trafficking victims, and even children under the Special Immigrant Juvenile Act.
Those are types of individuals seeking
green card benefits that will not be affected
by these new rules.
The rules - or the parameters of the rules - are new.
The rule itself is not new.
The rule has been in effect since 1882.
The public charge issue has long been used to exclude
individuals from entering the United States.
They are even in place now, and they were codified a little stronger
in the mid '90s with the Affidavit of Support rules.
Now when an individual applies for green card benefits,
they have to have a financial sponsor who may or may not be the same person
who is sponsoring them for a family-based visa.
The financial sponsor then has to show that they have assets,
or resources, or income that meets 125% of federal poverty guidelines.
Now, that is of course if the immigrants themselves cannot qualify to show their income.
But usually there is a sponsor and in some cases a co-sponsor.
That co-sponsor and that sponsor speak to the issue of public charge.
At present, it has only been a couple of issues that the government has really looked at.
Now they are going to be looking at a lot more issues.
In 2016, only 3,237 individuals
who applied for green card benefits were denied on public charge grounds.
That is going to mushroom for reasons that I'm about to share.
When the government officer looks at whether or not someone will be a public charge,
they are required to look at the totality of that individual's situation
as it affects their day-to-day living.
They look at an immigrant's age, their health,
their education, their income, their assets, their skills,
their previous employment, their family status - how many people are in the family even,
and similarly related relevant factors.
The only two items that have really been an issue
until now were cash assistance and long-term care
or institutionalization at government expense.
The non-cash type of programs, such as health programs, nutrition programs,
were not considered as public charge issues by government officers.
That is about to change.
Under the new rules, officers are going to consider
whether immigrants and not just immigrants,
but any other family members,
including their United States born children,
have received various types of public benefits.
Here is a short list of the benefits that they will be taking a look at:
SSI, Medicaid, WIC, Section 8, food stamps,
Low-Cost Energy Assistance, even the earned income tax credit when people file tax returns,
Head Start, Children's Health Insurance, even people who took advantage of Obama Healthcare coverage,
and other types of subsidized government insurance programs.
All of those are going to be looked at
by immigration officers as they review permanent residency applications.
They are going to be looking at how long did a person receive it,
how often did they receive it.
Were they truthful about how long they were on the programs,
that they didn't exceed the time period that they should have been getting public benefits,
or did they go on afterwards and not reveal a change in income, or resources, or assets?
Those are types of issues that can get immigrant applicants into a lot of problem.
One of the biggest issues that green card applicants will have to look at
is whether or not they have received public benefits
this is a major - they even call it a major negative factor in the USCIS memo
whether they have received public benefits for more than six months in the past three years.
Now, think about how that might occur.
A female immigrant has a child about to be born,
and they may have received four to five months of assistance while she was pregnant with that child,
and perhaps that person had two children in the last three years that were born.
Well, that's 10 months. That's over the six-month threshold.
That is going to be a problem.
If people are currently receiving public benefits, that is a no-no.
That is an issue that people should be very, very, very, very careful with,
and they need to make sure they check in with legal counsel if they are in that type of situation.
Whether the individual has right now a costly or a serious medical condition,
and they are going to need or they are receiving some type of subsidized insurance,
those are really heavy-duty negative factors that a government officer is going to look at.
The memo notes a heavy-duty positive factor that will help immigrants,
and that is if they can show through their assets, and income,
and resources that they can meet 250% of the federal poverty guideline standard.
That is going to be difficult for most immigrants
and mixed status families to meet.
It would be hard for many American families to meet.
The government officer is going to have the discretion
to offer a public charge bond
that an individual applying for a green card can pay this bond.
I assume the way it is going to work,
in their discretion they are going to review things and say,
"Well, this is really a good person, and they should be able to become a permanent resident.
But I think they fall under the public charge guidelines, so I could deny their application,
but I'm going to offer them a bond."
The bond is going to be at least $10,000.
If an immigrant violates that, they are going to forfeit the entire bond,
so think about that.
Someone the government looks at and says,
"Well, you look like you are going to fall under the public charge requirements,
but I'm going to offer you a bond," and then that immigrant can get a $10,000 bond.
Hmm, seems a little inconsistent, and it would also seem like the officer then is going to say,
"Well, let me look into this.
Is this a red flag here of something else?"
It could be a real problem.
Opponents support this measure strongly.
They say that it benefits taxpayers.
What I have read on the internet and I have heard on the news
that opponents of the amount of immigrants we have
coming into the country at present
really feel that the United States is not just a country
of immigrants but a country of opportunity.
And they believe that when immigrants come here,
they should pull their own weight.
They should be, as opponents like to say, makers not takers.
That they should not use public benefits.
They should not deplete public funds that place a bigger burden of taxpayers.
Politically, this is clearly another indication of the administration's
wanting to slam immigration law away from immigrants coming from poor countries.
That is pretty clear.
Opponents also argue that the expansion of public benefits
from just the two former categories to the multiple forms now is that all cash benefits,
all public benefits are really cash benefits.
Even though it is not cash directly,
it is cash indirectly because it comes out of government funds.
What I think we are going to see
in the next few months, especially as we lead up to elections and perhaps after the elections,
is a return of the rhetoric that emerged during the Ronald Reagan years.
Prior to Ronald Reagan, this country had went through a period of time
after John Kennedy's election,
when he declared a war on poverty.
Poverty was more like something bad that had to be eradicated.
That America was divided - those who have and those who don't have.
And those that don't have, should have, but we have to fight poverty.
We have to fight causes when we can do it because we are a very rich country.
Well, Ronald Reagan flipped that argument on its head.
He looked at poor folks and he said that they were
poor because they wanted to be poor.
It was their own actions.
And a lot of them were, what he called, cheaters,
welfare cheaters, and he used imagery of welfare mamas.
For years that was prevalent in American debate about assistance to poor people.
And so poor people were suddenly looked at as something to be feared,
not someone to be helped.
I think we are going to see a slight return on that issue,
but we are going to see it return in the immigration context.
That is where I think the debate is heading.
And it is a very dangerous argument for immigrant supporters
because as they try to win the hearts of middle America,
since middle America is the one picking up the tax burden.
Because as the American economy is squished, and as the middle class shrinks,
more and more of these programs are paid for out of the government pocket,
but it is through the taxes of the middle class.
So that argument is finally going to be transformed
and twisted so that the middle class,
those who sit on the fence between,
"Uh, I think immigrants should be helped, but I'm not so sure that I like immigration reform,"
are going to lean towards these types of rules
and cut off immigration. They are going to buy into the argument
that immigrants should make their own way,
as it was for many, many years -
because a lot of cases where people were struggling just simply was not rewarded.
As I said, during the Reagan years, the whole issue of the poverty in America
was not a negative issue.
You can recall even in the 1990s, the Census started counting the homeless.
There is a real economic problem in America,
and the middle class is the one feeling the effects of that.
That issue has been used by opponents of immigration,
immigration reform, to fuel an anti-immigrant sentiment.
Those individuals, those activists and community leaders
who support immigrants are going to have to be real careful on this issue.
They are going to have to be real careful.
They are going to strategically think how they are going to address such issues.
Some of the effects already occurring are that
there are reports of mixed status families, families where there is an immigrant parent
who could seek benefits for one of their children who is a U.S. citizen,
perhaps something like school lunches or some type of medical care program,
staying away from that.
Not because the citizen child is not entitled to it.
No, the law is not changing. They are entitled to it.
What is changing is that the use of such resources will be used
at an interview against the immigrant parent
who seeks to become a permanent resident.
An immigrant parent who years later tries to become
a permanent resident through their child because, let's say, it was a single mom,
all of a sudden now, the way that they survived and were able to raise that child
to become a productive United States citizen young adult,
now has that thrown back in her face because they used government benefits.
That is the type of issue where immigrants are
going to have to reach out to the bar, to immigration lawyers, and say,
"Wait a minute, I no longer can fill out this application alone."
Yeah, they could perhaps. Maybe some, technically speaking. But developing the evidence and developing
how to address those issues in advance are going to be critically important.
It is not something that folks should be risking because
then they are going to risk losing the right to become a permanent resident.
In 2016, statistics showed that there were 10.4 million
U.S. citizen children with at least one immigrant parent in the same household.
That's a lot. And of that amount,
56% of those households have received some kind of assistance like Medicaid,
or health insurance for the children, or school lunches, or similar items.
56 percent.
These are households where individuals are not yet permanent residents.
This is where the squeezing, this is where the tightening,
this is where the reduction is going to take place.
Now, I have been asked whether this will affect individuals applying for citizenship.
Not directly, but very definitely indirectly.
As in other types of citizenship cases nowadays, individuals are going and saying,
"Hey, I want to apply for naturalization. I've been a citizen 5 years, 10 years, 20 years."
And the government now is going back into old records,
even in the permanent residency applications.
There have been indications that a new form is being created
for green card applications, so that these public charge issues
can be directly looked at by the officers.
So at the citizenship application, I can perceive in the future officers looking at someone and saying,
"Okay, so when you became a permanent residence,
you noted that you had received public benefits."
"Yes."
"Well, let me take a look at that."
The public charge information won't be in the applications,
but they can go back and look at those records and say,
"Well, there's inconsistent information here.
It appears that you may not have provided us accurate information
eight years ago when you got your green card."
In that situation, the immigrant then is going to face a problem of not just being denied naturalization,
, but perhaps being hit up with charges of misrepresentation years ago
and charges of misrepresentation right now.
So indirectly, naturalization applications could be affected.
Can someone be deported when they are adjudicated as a public charge?
Well, yes, but it is rare.
There are two requirements that have to be in place:
one is that someone has to become a public charge within
five years of entering the United States,
and those reasons that they became a public charge
existed before they entered the United States.
Let's consider how that happens.
A United States citizen here wants to immigrate
a spouse from another country or a child,
and that spouse or child has a serious medical condition,
cancer, leukemia, and that exists at the time the United States citizen petitions
for their family member.
But at the time that the family member petitions, they meet the required federal poverty guidelines,
so it is not an issue. It not an issue.
They are going to be able to take care of them.
However, that immigrant then enters the United States
and the condition worsens,
and the medical bills keeps getting higher and higher.
Then what? All of a sudden the citizen spouse does not have the income to support the medical needs
of their spouse, and so they apply for public benefits.
Then what?
Is the spouse now in danger of being deported?
These are the types of issues, again, that immigrants are going to have
to be real careful with.
Immigrants, I strongly believe, are not going to be able to handle
these types of issues on their own in most instances.
They are going to need professional guidance.
They are going to need professional assistance.
And so this is something that I seriously, seriously would like everyone in that situation to consider.
They need to plan ahead.
If you have ever received any types of public benefits,
you do need to talk to someone and you need to talk to them now.
You need to talk to someone such as a professional expert, not just anybody.
You need to get the type of professional counseling you need
so that you can prepare for these issues down the line
when you finally apply for green card benefits.
It does not mean that it cannot be done, it just means you are going to have to be super careful.
I wish you and your family the best of luck going forward.
I hope I have not scared you.
I hope that, instead, I have alerted you to what you need to do
to survive in the future if you have ever received public benefits.
You do not want to be labeled a public charge.
You do not want to lose your green card case. Think about it.
Just one last point here. Let's say you were to be denied permanent residency.
What happens then?
Okay.
In previous weeks I have discussed changes going on with USCIS
and Immigration Court.
USCIS officers now, if they deny an application of an immigrant,
will be able to serve that person with a Notice to Appear at Immigration Court to be deported.
See, because they are going to know that individual
is undocumented immigrant without papers or an overstay.
And so they are going to be able to refer them immediately the Immigration Court
to commence to start immigration procedures against them.
Even though when you get the immigration proceedings, the U.S. spouse or child
or whoever is going to try to revitalize the permanent residency application,
or the immigrant may be able to perhaps seek other types of immigration relief.
The Immigration Court also has new rules.
They are not going to give you much time to get ready because
the new rule on continuances and then the new rule on administrative closure,
so all this is tightening up the noose around the necks of immigrants seeking
permanent residency in the future.
It all comes together because the idea is to narrow the amount of those applicants who can succeed.
So I really, really hope that you do not find yourself in such a situation.
And I do hope you take to heart that going forward
with all these new rules coming into place, that you seek professional guidance.
And with that, have a great evening. I'll talk to you soon.
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