The final rule also creates facts that could be categorized as negative or positive factors, heavily weighted negative and heavily weighted positive factors with the implication being that heavily weighted positive or heavily weighted negative factor have greater effect on alien application for extension of stay or adjustment of status. DHS, however, would consider the totality of the circumstances of the alien application and would not make a decision based on one heavily weighted negative factor in the light of presence of other positive factors.
DHS reserves the discretion to offer public charge bonds to Aliens whom are considered public charge or whom would likely in the future to be public charge and the final rule increased the minimum rate of the public charge bond at $8,100. The rule also provides for grounds in which the public charge bond could be breached by the alien and legal consequence of such breach as well as grounds and procedure for cancellation of public charge bond by the DHS.
Additional forms were added under the new rule thereby requiring certain class of aliens applying for extension of stay or adjustment of status after the effective date of the final rule to include these forms in their application and failure to include them could lead to a denial of the alien’s application for such immigration benefit. The new rule also creates additional financial cost and time burden. Lastly, the final rule is expected to go into effect on October 15th 2019.
WHAT IS PUBLIC CHARGE AND PUBLIC BENEFIT
A public charge means an alien who receives one or more public benefits for more than 12 months in an aggregate period of 36 months with the addition that two benefits received in one month counts as 2 months in the computation period for receipt of public benefit. Public benefit includes receipts of cash and non-cash benefits from federal government and only cash benefits from states, local and tribal agencies. These benefits are includes; Supplementary security income (SSI), temporary assistance for needy families (TANF), federal, state and local cash benefit programs, supplementary nutrition assistance program (SNAP), Section 8 Housing assistance under the housing choice voucher program, Section 8 project-Based rental assistance (including moderate rehabilitation), public housing, Medicaid except Medicaid benefit received under Emergency medical condition, or through the Individuals with disabilities Act (IDEA), school based benefits provided to individual who are at or below the age for a secondary education as may be stated under State law and Medicaid benefit received by alien under the age of 21 or a woman during pregnancy or 60 days after the last day of a woman’s pregnancy. Also, state, local or tribal non cash benefits are not considered public benefits and thus excluded. DHS clarifies what constitutes receipt of public benefit as actual and direct receipt of public benefit hence, mere application or certification for public benefit or receipt of benefit on behalf of a beneficiary is not considered as receipt of public benefit but an application or certification for public benefit would be considered a negative factor as it evidences alien likelihood in the future to be a public charge.
PERSONS EXEMPTED FROM PUBLIC CHARGE INADMISSIBILITY DETERMINATION
Aliens enlisted in the U.S armed forces and in active service or in the ready reserve including their spouse and child, children eligible for acquisition of citizenship, aliens while in a status that is exempted from the public charge ground of inadmissibility under the INA, aliens receiving Medicare Part D Low Income Subsidy (LIS). DHS clarifies that aliens under the T nonimmigration would be considered under the public charge determination when applying for employment-based change of status.
MANDATORY FACTORS FOR PUBLIC CHARGE INADMISSIBILITY DETERMINATION
The final rule sets out mandatory factors for which the DHS would consider in making a public charge determination and which includes;
Age: Aliens below the age of 18 and above the age of 65 are likely to be considered a public charge;
Alien health: Aliens with disabilities and chronic health condition which would hinder them from providing for themselves or work or go to school when admitted into the US, are likely to become public charge;
Alien’s household size: Alien should demonstrate that the size of aliens household offers advantages that decreases alien likelihood to be a public charge
Alien’s asset and resources and financial status: alien’s household income earned under legal occupation most must be at least 125 percent of the FPG and in the case of servicemen in active duty, 100% of the most recent FPG. However, where Alien is unable to meet this baseline, Alien may submit evidence of ownership of significant assets which is five times the difference between the household income and the 125% FPG baseline. USCIS would also consider if the sufficient resources to cover any reasonably foreseeable medical cost, any financial liabilities, Alien’s household cash and non-cash resources, whether alien has received USCIS fee waiver on or before October 15th 2019, alien’s credit history and score in the United States and if alien has applied for or received any public benefit on or after October 15th 2019.
Skills and education: DHS considers that skills vary according to individual occupation and require that alien must have a minimum level of skill that would enable the alien gain employment and avoid being a public charge upon admission into the United States. DHS considers also if the alien has a higher school diploma or its equivalent or can speak English or other languages in addition to English as a positive factor
This mandatory could be considered either as a negative factor or a positive factor, DHS also develops heavily weighted positive and negative factors. DHS considers as heavily weighted positive factor where alien has a private insurance which does not include receipt of premium tax credit, where alien household income meets the 250% FPG baseline or where the alien is authorized to work and is employed in the legal industry and the income meets the 250% FPG baseline. Heavily weighted negative factor includes; where alien is not a full time student and is authorized to work but is not able to demonstrate current employment, where alien has no private insurance or a financial resources to pay for any reasonably foreseeable medical cost, where alien has been a subject of a deportation proceedings and found inadmissible, where an alien has received public benefit one or more time for more than 12 months in an aggregate period of 36 months and lastly where an alien has a medical condition that prevent the alien from providing for him/herself or attend school. However, DHS considers the totality of alien circumstances before it makes a public charge determination.
DHS maintains that it would not consider against an alien seeking extension of stay or adjustment of status after the effective date of this final rule, receipt of public benefits before the effective date of this final rule and which were not included as public benefit under the previous regulation. However, DHS would only consider as negative factor, receipt of public benefit included under the previous regulation, by alien currently seeking extension of stay or adjustment of status.
INCREASED COST ON SOME FORMS
The final rule imposed increased new fees on some forms such as Form I–485, Form I–129, Form I–129CW, Form I–539 and Form I–539A, Form I–945 and Form I-356. A new feature is the requirement to include Form I-944 for alien seeking extension of stay or adjustment of status in the application and failure to include it could lead to a denial of their application with a notice make amendments from USCIS
PUBLIC CHARGE BOND
Where an alien is found to be likely in the future to be a public charge, the USCIS may offer a public charge bond to the alien. USCIS reserves the discretion make the offer and the offer would not be made if the alien has one or more heavily weighted negative factors. DHS determines the bond amount which the final rule sets a new minimum amount at $8,100 and the type of bonds and the decision is final and cannot be appealed by the alien or the obligor. DHS also sets the condition for the bond which is primarily that the alien must not receive any public benefits for more than 12 months (where receipt of 2 benefits in 1 month counts as 2 month) in an aggregate period of 36 months as contained in the final rule else the alien would forfeit full bond amount to the government of the United State. A bond can be cancelled under the following circumstances; if the alien permanently departs from the United States, if the aliens dies, if the alien obtains citizenship by naturalization, if the alien becomes a legal permanent resident for a period of 5 years or the alien change his/her immigration status to one exempted under the regulation/rule, the alien through his/her obligor must file the required USCIS Form for cancellation of public charge bond.