Recently, the Department of Homeland Security issued a series proposed change to rules regarding “public charge.” Though inadmissibility based on government dependence is already in existence, the new rule broadens the criteria for who is likely to become a “public charge.” The policy change is set to go into effect on October 15, 2019. Though several states have sued regarding the policy change, immigrants and other affected parties should familiarize themselves with possible outcomes of the regulations.
Q: What is an affidavit of support?
A: An affidavit of support is a legally binding contract between the individual (a “sponsor”) and the Federal Government. Where the sponsor agrees to accept financial responsibility for an immigrant who is coming to the United States to live permanently. Most financial sponsors have to fill out Form I-864, Affidavit of Support and earn an income for their household size that is 125 percent of the Federal Poverty Guidelines.
Q: How do I prove that I will not become a public charge?
A: The new policy change suggests several factors that will be taken into consideration. Positive factors that an immigrant may use to persuade the government he or she will not become a public charge include: an affidavit of support, family relationships, ability to speak English, Education, private health insurance, a favorable work history, receipts of grants, and ability to work in the future. Some of the negative factors include a lack of employability, a previous finding of public charge and receipt of public benefits within 36 months before filing of the adjustment of status application.
Q: If I have used government assistance in the past, will I be able to get my green card?
A: Most likely, yes. Prior use of government benefits is only one of the factors taken into consideration for the public charge test. The new rule specifically asks immigration officers to consider the likelihood a person will need more than 12 months of public benefits in the aggregate over a 36-month period in the future. While an officer may ask about your previous public assistance, you can make the case for your independence from government assistance in the future.
Q: If some of my family members use government programs, should we stop using them?
A: No. The rule has not been finalized, and the new rule does not consider benefits received before October 15, 2019. Further, the rule only applies to benefits received by the applicant for permanent residence. Benefits your family members (ex. A U.S. citizen child) use will not be counted against you. It is also important to note that WIC, Medi-Cal for Pregnant women and children under 21, HeadStart, school lunches and emergency health care are not part of the public charge rule.
Q: If I have already filed my green card application, does this rule apply to me?
A: No. The policy changes will not apply to any cases filed before October 15, 2019. Applications that are submitted before this date will be tested under the current policy.
Q: If I have a green card and use government programs currently, will these policy updates affect my application for naturalization?
A: No. The changes to the public charge rule will only affect individuals hoping to become legal permanent residents of the United States. In other words, those applying for a “green card.”
At Wilner & O’Reilly, we understand the complexities of the immigration laws. Immigration laws and procedures are constantly changing. If you have any questions, please do not hesitate to contact our office. We offer free in-person consultations. U.S. immigration law is complex, which is why you need experienced immigration attorneys to guide and advise you through the process. We are those lawyers, and our firm practices immigration law exclusively. We have offices in Orange, Fresno, Riverside, Sacramento, San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho.
ABOUT THIS AUTHOR
LAUREN M. FLORES – ASSOCIATE ATTORNEY
Lauren M. Flores is an associate attorney at Orange Office of Wilner & O’Reilly, APLC. She is a native of Compton, CA and a proud daughter of an immigrant father. Her primary and secondary education took place in the neighborhoods of Huntington Park, South Central, and Boyle Heights—she has a special affinity for these communities. She graduated from Brigham Young University where she earned a Bachelor of Arts in Journalism with Minors in Spanish, Editing, and International Development. She received her Juris Doctor from the J. Reuben Clark Law School at Brigham Young University. During her time in law school, she served as an associate editor, lead editor, and finally executive editor for the Brigham Young University Education and Law Journal. She is passionate about education and furthering the opportunities for inner city youth to have access to higher education.
KELLY S. O’REILLY – FOUNDING PARTNER
Kelly O’Reilly is a founding partner with Wilner & O’Reilly, APLC, and a former Immigration Officer with Citizenship and Immigration Services in Los Angeles and Orange County. With over 18 years working as an immigration attorney, he is an expert in all facets of Immigration Law and one of the best immigration attorneys serving Orange County and Riverside County. A native of Fresno, California, Mr. O’Reilly received his law degree from the University of La Verne, College of Law and his Bachelor of Science degree from Brigham Young University. A former missionary in Hong Kong, Mr. O’Reilly has a great love of Chinese culture and is conversant in Cantonese.