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Immigration Policy's Public Charge Takes Sharp Right Turn Closing Doors & Denying Needs

As-Salaamu Alaikum wa Rahmatullahi wa Barakatuhu

May the Peace, Mercy and Blessings of Allah (God) Be Upon You

Effective tomorrow, February 24, 2020 the public charge inadmissibility final rule trumpeted by the Trump administration's United States Customs and Immigration Services (USCIS) is going into effect. Information we have received indicates there is a lot of fear and some misinformation or confusion concerning receipt and use of public benefits, particularly those that are basic to oneself or the needs of families.

We are publicizing information that we hope may clarify or reduce confusion and/or fear. The public charge final rule does not apply to everyone and some aspects of the rule only applies to some people or specific circumstances. We know this information will not apply to everyone taking the time to read this blog, however, given the diversity of Queens and New York City, it is likely that everyone knows someone directly or someone who knows someone who may benefit from this information. We hope you will pass the information on to anyone you hear inquiring about "public charge." The name of the rule conveys or implies that the public is being charged for someone's use of something that belongs to whom exactly? The benefits available in the US are paid for by this nation's taxpayers, some of whom are individuals to whom these rules may apply or if not then to someone in their family or household. Someone working, perhaps whose hours or hourly wage is inadequate to meet all of the requisite needs in order to go to work-- that individual also pays taxes no matter how little is being earned. If not taxes directly to the city, state and federal government, taxes that are applied to general sales of merchandise. He/she may possess worker authorization or they were financially perhaps just short of meeting the cost to file for an adjustment in status before the rule takes effect tomorrow. What happens next may mean a different outcome if public benefits are used in the future. Many New Yorkers will not risk what could become an eventual opportunity to obtain a green card. What will become of family members who may have been waiting to come join them, is another story. They will confront what amounts to a "wealth test." It must not be forgotten that people living in New York City reside in one of the most expensive cities in the whole world! Sacrifices will have to be made for obligations to be met. What should not occur is individuals and families misunderstanding the rule and forsaking access to public benefits that are much needed and about which they are eligible.

Another area to be concerned about with the rule change that is expected to (and will) decrease enrollment in the Supplemental Nutrition Assistance Program (SNAP) is what food pantries have already observed in increased numbers of immigrant families seeking food assistance through alternate means-- after having withdrawn from SNAP is the potential loss of a free school lunch for children. While it is not a given, many school's offer free lunch to everyone if 40% of the enrolled population would fall under eligibility for SNAP. If there is a decrease in SNAP enrollment-- that is already occurring, or a requirement for parents to complete an application for eligibility for free or even a reduced lunch for their children, another impact may be the loss of this meal during school hours. If the school cannot assess it meets the 40% threshold given projected or reported SNAP enrollment decreases, a free lunch could not be available to everyone. The implication for family budgets that are already stretched and burdened by high rent costs and the risk that may be perceived to complete any requested form for any public benefit even for children to be provided free food in school may further negatively impact the health of our communities.

The information presented in the remainder of this article with the exception of some closing comments, was gleaned from the websites of the National Law Review (NLR), the Immigrant Legal Resource Center (ILRC) and the New York City Mayor's Office for Immigrant Affairs (MOIA).

What is public charge?

“Public charge” is a ground of inadmissibility. Grounds of inadmissibility are reasons that a person could be denied a green card, visa, or admission into the United States. It is not a test that applies to everyone. In deciding whether to grant an applicant a green card or a visa, an immigration officer must decide whether that person is likely to become dependent on certain government benefits in the future, which would make them a “public charge.”

Here are a few important points regarding public charge:

1) Public charge does not apply to all immigrants. This law mainly impacts those seeking permanent resident status through family member petitions.

2) In immigration law, public charge is a ground of “inadmissibility.” This law says that those who are viewed as likely to become dependent on the government in the future as a “public charge” are inadmissible. Grounds of inadmissibility only apply to those seeking entry at our borders or those applying for a green card (lawful permanent residence).

3) Many immigrant categories are exempt from the public charge ground of inadmissibility, even if they might be applying for status or a green card. U visa holders, T visa holders, asylees, refugees, and many more categories are exempt.

4) Public charge laws do not apply in the naturalization process, through which lawful permanent residents apply to become U.S. citizens.

According to the New York City Mayor’s Office of Immigrant affairs, “New Yorkers should not stop using public benefits unnecessarily. Many immigrants do not face a “public charge” test in their immigration applications.”

  • There is no “public charge” test for green card holders applying for citizenship.

  • Immigrants who are sponsoring a family member abroad, or will be traveling abroad to apply for a green card or visa, should know there is a different “public charge” policy at U.S. consulates.

If you or a family member are already in the process of adjusting your status and documents are already in process, the following applies to you:

  • The final rule will apply only to applications postmarked on or after Feb. 24, 2020. For applications sent by UPS, FedEx, etc., the postmark date is the date reflected on the courier receipt. DHS will not consider an applicant’s use or application for the newly added non-cash public benefits received before February 24, 2020.

Benefits Impacted and Exempted by the New Public Charge Rule

By means of quick overview, here are the benefits subject to the new rule:

  • Supplemental Security Income (SSI)

  • Temporary Assistance for Needy Family (TANF)

  • Any other federal, state or local cash benefit programs

  • Section 8 Housing Assistance under the Housing Choice Voucher Program

  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)

  • Medicaid and other public assistance used to support aliens who reside in an institution for long-term care such as a nursing home or mental health institution

In addition, here are the benefit exemptions that will not be considered for public charge purposes:

  • Children’s Health Insurance Program (CHIP)

  • Emergency disaster relief

  • Job training programs

  • Benefits received by individuals under age 21, including educational assistance and nutrition programs

  • Benefits received by pregnant women, including the Special Supplemental Nutrition Program for Women

  • Foster care and adoption assistance

  • Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits

  • Unemployment compensation

Impacts of the New Rule on Adjustment of Status Applicants

All applicants for adjustment of status, again – except those residing in Illinois, will be subject to the new rule. In determining inadmissibility, USCIS defines “public charge” as an individual who is likely to become “primarily dependent for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.”

USCIS will use a totality of the alien’s circumstances standard in determining whether immigrant or non-immigrant visa applicants, applicants for admission to the United States, and applicants for adjustment of status to lawful permanent residence are likely to become a public charge “at any time” in the future. The alien’s circumstances will be measured by seven factors, including:

  • Age

  • Health

  • Family status

  • Assets, resources and financial status

  • Education and skills

  • Prospective immigration status and period of admission

  • Affidavit of support, filed under 213 of the INA

No single factor, other than the lack of an affidavit of support (if required) will determine whether an individual is a public change.

Starting on Feb. 24, adjustment of status applicants will need to attach an additional new Form I-944, Declaration of Self-Sufficiency, when applying for a green card, which will request information on personal and household assets, credit score report, resources, financial status, bankruptcy history, and public benefits history. In addition, applicants and petitioners must also use the new editions of Forms I-129, I-129CW, I-485 (and I-485 Supplement A), I-485J, I-539, I-539A, I-601, I-864, I-864A, I-864EZ, and I-912.

Individuals applying for green cards and visas from outside the United States, via consular processing, will not be affected by the new rule.

Impacts on Those Seeking Change or Extension of Non-immigrant Status and Others

The enhanced rule will also apply to those seeking a change or extension of non-immigrant status. Though this is where an exception applies as the public charge standard applied to nonimmigrant visas will be retrospective, meaning that USCIS will examine only whether the applicant received 12 months or more of public benefits during any 36-month period while in the non-immigrant status he or she wishes to change or extend. Non-immigrant applicants will not be required to file the new form I-944 with their petitions to either change or extend their status.

Finally, the final Public Charge Rule will also not apply to refugees, asylum applicants, survivors of trafficking, survivors of domestic violence (T or U Visas), VAWA self-petitioners, or special immigrant juveniles applying for status or permanent residency.

None of the members of the South East Queens Muslim Collective (SEQMC), Inc. are lawyers. We are providing this information to provide attention to the start date of the final rule and clarify, to the extent we can, who the final rule does and does not apply to. There has been a decrease of approximately 26% of those who prior to the announcement and initial court filings in August 2019 were receiving some public benefit who have since declined its use. This may mean food resources are dwindling or very limited in some households and/or worse that some individuals may be going without necessary medication. Please find attached a written categorization that may help someone if either of these situations is a concern to them or should not be developed by the Institute for Family Health. Literature relevant to the public charge final rule is available in a variety of languages by visiting the webpage of the Legal Aid Society and the links of agencies/organizations about which information was consolidated for this message (see those cited above as contributors to this information).

Please reach out to SEQMC if we can assist referring you to the appropriate office for additional guidance or preferably please reach out directly to services being provided by New York City, as follows:

Free Legal Services and Additional Information are available:

If you need immigration assistance, you can call the Office for New Americans at 1-800-566-7636 to be connected to free or low-cost, high-quality legal representation and counseling services. New York City residents can call The Legal Aid Society at 1-844-955-3425. You can call the City-funded ActionNYC hotline at 800-354-0365 and say "public charge" from 9:00 am to 6:00 pm, Monday to Friday, to learn more and get answers to your questions.

• You can schedule an appointment to consult with a City-funded, free, trusted immigration legal services provider.

• The hotline is free and anonymous.

• Help is available in over 200 languages.

We pray for the well-being, safety and security of all.

Please join us to follow updates about current issues and events concerning housing, education, social justice and economic empowerment on the SEQMC Facebook page.


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