Inadmissibility on Public Charge Grounds: A Rule by the Homeland Security Department on 08/14/2019. Federal Register, August 14, 2019. pp. 41292-41508. A Short Summary of a 600 page document.
Fulltext of the rule in the Federal Register appears at: https://www.govinfo.gov/content/pkg/FR-2019-08-14/pdf/2019-17142.pdf
“The primary benefit of the final rule would be to better ensure that aliens who are admitted to the United States, seek extension of stay or change of status, or apply for adjustment of status are not likely to receive public benefits and will be self-sufficient, i.e., individuals will rely on their own financial resources, as well as the financial resources of the family, sponsors, and private organizations.”
The Inadmissibility on Public Charge Grounds rule sets out a definition of nonimmigrant self-sufficiency that is necessary for adjustment of status to Green card holder, which is a pathway to citizenship. While the 1999 rule considered cash payments as a basis for inadmissibility, this rule includes non-cash benefits. The basic idea is that if you cannot earn enough to support yourself, you should not be able to become a Green Card holder or citizen, who would then go on to a lifetime of welfare. It is noted that in a recent year 1 million nonimmigrants obtained Green Card status; one estimate is that this new rule would have barred 400,000 from obtaining a Green Card. It seems that the main affect of the rule change is to discourage future welfare-immigration, since such nonimmigrants would be barred forever from becoming citizens.
There are serious issues about the availability of statistical data on nonimmigrants since it was never collected. Moreover, almost the entire apparatus for determining inadmissibility and for deportations was written by the Clinton Administration (e.g., 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds): These issues were ignored by the Bush and Obama Administrations.
The entire rule represents only about 25 pages out of 600 total pages, with the remainder mainly consisting of ever imaginable criticism of the rule, from not being “Welcoming” or being an attack on the “American Dream” or violating international law to claims it violates the privacy of immigrants or that it is racist against Blacks, Hispanics, Muslims, Asians, etc. (i.e., immigrants of Color victimized because they are low earners). The rule includes only the themes of comments: There were 266000 comments and much of its is special pleading: for example: “Commenters stated the rule will have a disproportionate impact on South Asian immigrants seeking an extension of stay or change of status, stating that more than 550,000 from South Asian countries lawfully reside in the United States. —–Response: DHS does not believe that the rule would impact all of the 550,000 aliens from South Asian countries that the commenter references, as it is unclear that all aliens from these countries would apply for an extension of stay or change of status.” [Maybe all 550,000 South Asians do plan to seek a change of status…]
Criticisms include complaints that legal aid attorneys will have to learn the new rule, that it will disadvantage the 1 million handicapped [anchor babies] and nonimmigrant children; the rule will impair chain migration [the term is not used]; the [Soros/Podesta] center for American Progress complains about the cost burden placed on small business by replacing aliens with American employees; that it will be unfair to the 1.1 million elderly non-citizens [illegal immgrants and nonimmigrants] in poverty; “One commenter stated that the rule will undermine our nation’s global competitiveness because a highly-educated workforce spurs economic growth and strengthens state and local economies”;
The rule does not address illegal immigrants (who cannot adjust their status and receive Green Cards under existing law; moreover, 90% of illegal aliens have at least one basis for inadmissibility), sanctuary cities (although the cities most affected by some provisions are the major sanctuary cities: “Several commenters stated that this rule would pose substantial costs to New York City, which is home to a large number of immigrants and children with foreign-born parents. Other commenters provided data detailing the rule’s economic impact to Los Angeles County, CA; Austin, TX; Minneapolis, MN; San Jose, CA; Philadelphia, PA; St. Paul, MN; Boston, MA; and Dallas, TX “. Commenters are angered by their unsubstantiated claims that California will lose billions of dollars of federal aid as many disenroll.), or refugees and asylees (“The rule also does not apply to aliens whom Congress exempted from the public charge ground of inadmissibility (such as asylees, refugees, or other vulnerable populations listed as exempt in this final rule”).
The rule affects nonimmigrants. This category is unfamiliar to most people but it includes many groups that are well known: Visa holders of every kind (students, diplomats, K-1 fiancees, women victims of domestic violence and rape, H-1B, H-2B, etc.), DACA (“With respect to DACA recipients, DHS notes that an alien is not required to demonstrate that he or she is not inadmissible on the public charge ground when requesting DACA. A DACA recipient would only be subject to this rule when applying for a benefit for which admissibility is required.”) Interestingly, two categories of nonimmgrant visas, the EB-1A (extraordinary ability alien) and EB-1B (outstanding researcher or scientist), includes many people living on welfare.
Fo the hundreds of categories of nonimmigrants affected by this rule, see the massive table in the source document at: “Inadmissibility on Public Charge Grounds: (III) Public Comments on the Proposed Rule: (F) Applicability of the Public Charge Ground of Inadmissibility, and the Public Benefit Condition to Extension of Stay and Change of Status: (4) Summary of Applicability, Exemptions, and Waivers: Table 2: Summary of Nonimmigrant Categories Subject to Public Benefits Condition.” — So exemptions include: “Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma, Public Law 97-429 (Jan. 8, 1983)”, [?] some Haitians (“Haitian Refugee Immigration Fairness Act (1998)” [?]), Cubans, Amerasians, etc..
Public Benefits that can render a public charge inadmissible include: “This rule defines the term “public benefit” to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing”; Food Stamps (SNAP) but not emergency D-SNAP in disaster areas, and the Earned Income Tax Credit (some years ago the IRS estimated 70% of Somali households in Minnesota were committing EITC fraud, but the IRS was ordered by Congress to ignore the problem).
Exemptions include many programs in many categories: Medicare-Part D; Medicaid by children under age 21; Medicaid for pregnant women; education (Pell grants and student aid programs are education-based and DHS is not considering them in the public charge inadmissibility determination. DHS decided to not include a list of those benefits that are not considered for public charge purposes because they are too numerous and benefits programs may change over time.); “National School Lunch program,… Seamless Summer Option, Afterschool Meal Supplement, Special Milk Program, Child and Adult Care Food Program, Summer Food Service Program, and the Fresh Fruit and Vegetable Program, would not be considered public benefits under the public charge inadmissibility determination”; “Furthermore, the rule’s definition of public benefit does not include emergency aid, emergency medical assistance, or disaster relief. […] DHS will not consider any subsidies or grants provided to test for lead paint or to ameliorate homes with lead paint issues in the public charge determination. […] [will not consider] programs that provide low-income energy assistance or weatherization assistance.” State and local funded programs are exempt: in Washington State (which has a massive population living in poverty): “Commenter stated that in the FY 2017, approximately one in four Washington residents needed cash, food, child support, child care, and other services and that each day, more than two million individuals receive the support and resources they need from the state to transform their lives.” [state programs are exempt] Finally, the rule is intensely committed to respecting applicants’ privacy including rights under for HIPAA.
A major concern, expressed in many different ways, is that nonimmigrants and illegal aliens will disenroll form welfare programs needlessly: “For example, a commenter said that refugees, who are automatically enrolled in Medicaid upon arrival in its state, may believe they will be deported if they re-enroll in Medicaid after their initial resettlement period” [remembering that refugees are exempt from this rule]. While commenters claim 22-41 million people [!!] will disenroll from welfare programs because of the rule, DHS disagrees: “Further, DHS estimates that about 324,438 individuals who are members of households with foreign-born non-citizens and about 9,632 households with at least one foreign-born non-citizen will choose to disenroll from or forego enrollment in a public benefits program, based on a 2.5 percent rate of disenrollment or foregone enrollment.”
(1) Basic statement of purpose of the Rule.
(2) Definition of Public Charge (and a few exceptions)
(1) Basic statement of purpose of the Rule. (excerpts)
This rule changes how the Department of Homeland Security (DHS) interprets and implements the public charge ground of inadmissibility. The Immigration and Nationality Act (INA or the Act) renders inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission and (3) ineligible for adjustment of status, any alien who, in the opinion of the DHS (or the Departments of State (DOS) or Justice (DOJ), as applicable), is likely at any time to become a public charge. The statute does not define the term “public charge,” but in a related statute, Congress has articulated a national policy that (1) “aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations,” and (2) “the availability of public benefits not constitute an incentive for immigration to the United States.” In addition, the public charge statute provides that in making the inadmissibility determination, administering agencies must “at a minimum consider the alien’s age; health; family status; assets, resources, and financial status; and education and skills.” […]
This rule does not create any penalty or disincentive for past, current, or future receipt of public benefits by U.S. citizens or aliens whom Congress has exempted from the public charge ground of inadmissibility. This rule does not apply to U.S. citizens, even if the U.S. citizen is related to an alien subject to the public charge ground of inadmissibility. The rule also does not apply to aliens whom Congress exempted from the public charge ground of inadmissibility (such as asylees, refugees, or other vulnerable populations listed as exempt in this final rule). Nor does this rule apply to aliens for whom DHS has statutory discretion to waive this ground of inadmissibility, if DHS has exercised such discretion. In addition, this includes special provisions for how DHS will consider the receipt of public benefits, as defined in this rule, by certain members of the U.S. Armed Forces and their families; certain international adoptees; and receipt of Medicaid in certain contexts, especially by aliens under the age of 21, pregnant women (and women for up to 60 days after giving birth), and for certain services funded by Medicaid under the Individuals with Disabilities Education Act (IDEA) or in a school setting. Aliens who might qualify for these exemptions should study the rule carefully to understand how the exemptions work. >This final rule also clarifies that DHS will only consider public benefits received directly by the alien for the alien’s own benefit, or where the alien is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another. DHS also will not attribute receipt of a public benefit by one or more members of the alien’s household to the alien unless the alien is also a listed beneficiary of the public benefit. This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds.
(2) Definition of Public Charge (and a few exceptions) (excerpt)
DHS proposed definitions for the terms “public charge,” “likely at any time to become a public charge,” “public benefit,” and “alien’s household.” >As part of the definition of public benefit, DHS proposed to designate an exhaustive list of public benefits that would be considered for purposes of a public charge inadmissibility determination, as well as for purposes of extension of stay and change of nonimmigrant status applications. DHS recognized that the universe of public benefits is quite large, and that some benefits are more commonly used, at greater taxpayer expense, than others. In seeking to provide clear notice of the effects of the rule, and to limit certain indirect costs that may be associated with the rule, DHS elected to limit the number and types of non-cash public benefits that it would designate. DHS therefore proposed to designate just a few means-tested non-cash benefits related to food and nutrition, housing, and healthcare, which bear directly on the recipient’s self-sufficiency and together account for significant federal expenditures on low-income individuals. DHS’s proposed list of public benefits included cash benefits for income maintenance, institutionalization for long-term care at government expense, SNAP, most forms of Medicaid, Premium and Cost Sharing Subsidies for Medicare Part D (Medicare Part D LIS), Section 8 Housing Assistance under the HCV Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing. DHS also sought comment on the potential inclusion of other public benefits programs. As noted below, this final rule designates each of the above-referenced public benefits, except for institutionalization for long-term care at government expense and Medicare Part D LIS. DHS is not designating any additional programs.
(1) Refugees at the time of admission under section 207 of the Act and at the time of adjustment of status to lawful permanent resident under section 209 of the Act; >(2) Asylees at the time of grant under section 208 of the Act and at the time of adjustment of status to lawful permanent resident under section 209 of the Act; >(3) Amerasian immigrants at the time of application for admission as described in sections 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, Public Law 100-202, 101 Stat. 1329-183, section 101(e) (Dec. 22, 1987), as amended, 8 U.S.C. 1101 note;
(4) Afghan and Iraqi Interpreter, or Afghan or Iraqi national employed by or on behalf of the U.S. Government as described in section 1059(a)(2) of the National Defense Authorization Act for Fiscal Year 2006 Public Law 109-163 (Jan. 6, 2006), as amended, and section 602(b) of the Afghan Allies Protection Act of 2009, Public Law 111-8, title VI Start Printed Page 41505(Mar. 11, 2009), as amended, 8 U.S.C. 1101 note, and section 1244(g) of the National Defense Authorization Act for Fiscal Year 2008, as amended Public Law 110-181 (Jan. 28, 2008);
(5) Cuban and Haitian entrants applying for adjustment of status under section 202 of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (Nov. 6, 1986), as amended, 8 U.S.C. 1255a note;
(6) Aliens applying for adjustment of status under the Cuban Adjustment Act, Public Law 89-732 (Nov. 2, 1966), as amended, 8 U.S.C. 1255 note;
(7) Nicaraguans and other Central Americans applying for adjustment of status under sections 202(a) and section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Public Law 105-100, 111 Stat. 2193 (Nov. 19, 1997), as amended, 8 U.S.C. 1255 note;
(8) Haitians applying for adjustment of status under section 902 of the Haitian Refugee Immigration Fairness Act of 1998, Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998), as amended, 8 U.S.C. 1255 note;
(9) Lautenberg parolees as described in section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Public Law 101-167, 103 Stat. 1195, title V (Nov. 21, 1989), as amended, 8 U.S.C. 1255 note;
(10) Special immigrant juveniles as described in section 245(h) of the Act;
(11) Aliens who entered the United States prior to January 1, 1972, and who meet the other conditions for being granted lawful permanent residence under section 249 of the Act and 8 CFR part 249 (Registry);
(12) Aliens applying for or re-registering for Temporary Protected Status as described in section 244 of the Act in accordance with section 244(c)(2)(A)(ii) of the Act and 8 CFR 244.3(a);
(13) A nonimmigrant described in section 101(a)(15)(A)(i) and (A)(ii) of the Act (Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family or Other Foreign Government Official or Employee, or Immediate Family), in accordance with section 102 of the Act and 22 CFR 41.21(d);
(14) A nonimmigrant classifiable as C-2 (alien in transit to U.N. Headquarters) or C-3 (foreign government official), 22 CFR 41.21(d);
(15) A nonimmigrant described in section 101(a)(15)(G)(i), (G)(ii), (G)(iii), and (G)(iv), of the Act (Principal Resident Representative of Recognized Foreign Government to International Organization, and related categories), in accordance with section 102 of the Act and 22 CFR 41.21(d);
(16) A nonimmigrant classifiable as NATO-1, NATO-2, NATO-3, NATO-4 (NATO representatives), and NATO-6 in accordance with 22 CFR 41.21(d);
(17) An applicant for nonimmigrant status under section 101(a)(15)(T) of the Act, in accordance with 8 CFR 212.16(b);
(18) Except as provided in section 212.23(b), an individual who is seeking an immigration benefit for which admissibility is required, including but not limited to adjustment of status under section 245(a) of the Act and section 245(l) of the Act and who: (i) Has a pending application that sets forth a prima facie case for eligibility for nonimmigrant status under section 101(a)(15)(T) of the Act, or (ii) Has been granted nonimmigrant status under section 101(a)(15)(T) of the Act, provided that the individual is in valid T nonimmigrant status at the time the benefit request is properly filed with USCIS and at the time the benefit request is adjudicated;
(19) Except as provided in Sect. 212.23(b), (i) A petitioner for nonimmigrant status under section 101(a)(15)(U) of the Act, in accordance with section 212(a)(4)(E)(ii) of the Act; or (ii) An individual who is granted nonimmigrant status under section 101(a)(15)(U) of the Act in accordance with section 212(a)(4)(E)(ii) of the Act, who is seeking an immigration benefit for which admissibility is required, including, but not limited to, adjustment of status under section 245(a) of the Act, provided that the individual is in valid U nonimmigrant status at the time the benefit request is properly filed with USCIS and at the time the benefit request is adjudicated >(20) Except as provided in section 212.23(b), any alien who is a VAWA self-petitioner under section 212(a)(4)(E)(i) of the Act;
(21) Except as provided in section 212.23(b), a qualified alien described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. 1641(c), under section 212(a)(4)(E)(iii) of the Act;
(22) Applicants adjusting status who qualify for a benefit under section 1703 of the National Defense Authorization Act, Public Law 108-136, 117 Stat. 1392 (Nov. 24, 2003), 8 U.S.C. 1151 note (posthumous benefits to surviving spouses, children, and parents);
(23) American Indians born in Canada determined to fall under section 289 of the Act;
(24) Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma, Public Law 97-429 (Jan. 8, 1983);
(25) Nationals of Vietnam, Cambodia, and Laos applying for adjustment of status under section 586 of Public Law 106-429 under 8 CFR 245.21;
(26) Polish and Hungarian Parolees who were paroled into the United States from November 1, 1989 to December 31, 1991 under section 646(b) of the IIRIRA, Public Law 104-208, Div. C, Title VI, Subtitle D (Sept. 30, 1996), 8 U.S.C. 1255 note; and
(27) Any other categories of aliens exempt under any other law from the public charge ground of inadmissibility provisions under section 212(a)(4) of the Act