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DHS announces a more fair and human Affidavit of Support and Public Charge Requirements for Immigrant Visas and Green Cards

📝The U.S. Department of Homeland Security (DHS) has issued a final rule, to be published in the Federal Register, that provides more clarity and a more human approach to Public Charge Rules that are part of every Immigrant Visa and Green Card case. The new Rule is going to completely eliminate all the difficult and complex requirements brought by the Trump Administration in 2019 and bring USCIS back to the more humane rules of 1999. 

What is the Public Charge Rule? Section 212(a)(4) of the Immigration and Nationality Act (INA) makes a noncitizen inadmissible when applying for an Immigrant Visa or a Green Card if they are “likely at any time to become a public charge.” This means that if the Immigration official decides that the applicant is likely to receive public benefits and subsidies in the future – they will be denied for a Green Card.

💰Prior to 2019, almost all non-cash government benefits such as Medicaid or nutrition assistance were excluded from consideration and still allowed immigrants to be eligible for green cards. But Trump’s 2019 rule, which was ultimately vacated and is no longer in effect, resulted in a drop in enrollments in such programs among individuals who are not subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households. The publication of this rule in the Federal Register avoids these effects by formally codifying the historical understanding of the term.

☝Every Immigrant Visa and Green Card case through Family and Marriage requires an Affidavit of Support, but the applicants’ own receipt of public benefits has always stood in the way of becoming a US Citizen. However, with Trump’s administration obvious disdain for immigrants and desire to restrict legal immigration to United States, the Public Charge Rule has become a big road block in many middle and low class income households of US Citizens seeking to unify with their loved ones. So, the Biden Administration now took the lead and made a decision to make a final rule (a law) to be published in the Federal Register and make the Public Charge rules more humane and fair. In addition, they decided to simplify the paperwork for this process.

“This [new 09/08/2022 DHS] action ensures fair and humane treatment of legal immigrants and their U.S. citizen family members,” said Secretary of Homeland Security Alejandro N. Mayorkas. “Consistent with America’s bedrock values, we will not penalize individuals for choosing to access the health benefits and other supplemental government services available to them.”

👉“In keeping with our nation’s values, this policy treats all those we serve with fairness and respect,” said U.S. Citizenship and Immigration Services Director Ur M. Jaddou. “Though there is still much to do to overcome confusion and fear, we will continue to work to break down barriers in the immigration system, restore faith and trust with our immigrant communities, and eliminate excessive burdens in the application process.”

Under the new DHS Public Charge rule to be effective after December 23, 2022, as under the old 1999 Interim Field Guidance that was in place for most of the past two decades, a noncitizen would be considered likely to become a public charge if DHS determines that they are likely to become primarily dependent on the government for subsistence. This determination will be based on:

✅The noncitizen’s “age; health; family status; assets, resources, and financial status; and education and skills,” as required by the INA;

✅The filing of Form I-864, Affidavit of Support Under Section 213A of the INA, submitted on a noncitizen’s behalf when one is required; and

✅The noncitizen’s prior or current receipt of Supplemental Security Income (SSI); cash assistance for income maintenance under Temporary Assistance for Needy Families (TANF); State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance”); or long-term institutionalization at government expense.


❗DHS will NOT consider in public charge determinations:

🔸Benefits received by family members other than the applicant.

🔸DHS will also not consider receipt of certain non-cash benefits for which noncitizens may be eligible such as  Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs and Children’s Health Insurance Program (CHIP)

🔸Medicaid (other than for long-term institutionalization)

🔸Housing benefits such as Section 8 or government subsidized apartments, and

🔸Any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

DHS will develop a Policy Manual update to help USCIS officers apply this regulation fairly and consistently and to better inform the public about how the rule will be implemented. DHS will also conduct public outreach and engagements to minimize the risk of confusion or chilling effects among both noncitizens and U.S. citizens.

📋The final rule will be effective on December 23, 2022, and will be published in the Federal Register on September 9, 2022. DHS is currently making public charge assessments consistent with the statute and the 1999 Interim Field Guidance and will continue to do so until it implements the final rule for applications postmarked on or after the effective date.

At Shepelsky Law Group, we are truly happy with this turn of events in favor of Immigrants. Using life-saving assistance like Medicaid or SNAP benefits will no longer stand in the way of someone’s receiving US permanent residence.  Today’s announcement is among a series of good and decent actions taken by this Administration   to better balance DHS’s mission sets and ensure the fair and effective management of our nation’s immigration systems.

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