The 'public burden' rule: what a green card applicant needs to know
On September 22, the Trump administration said it is re-introducing a welfare test for a green card, which was blocked during the pandemic. A foreigner who is deemed a “public burden” is generally not allowed in the United States and cannot become a lawful permanent resident. What this means is described on the official website US Citizenship and Immigration Services (USCIS).
Under the latter rule, a “social burden” is defined as a foreigner who has received one or more government benefits for more than 12 months in any 36-month period. If, at the time of filing an application for permission to enter the United States or a change in status, a foreigner is considered to be someone who can “become a public burden at any time,” he will not be allowed into the country and will not be allowed to receive a green card.
However, receiving government benefits does not automatically increase the likelihood that a person will become a “social burden” at any time in the future.
A 2019 rule that gives officials more authority to deny issuing green cards to applicants who the government believes rely or may rely on government benefits such as food stamps or housing vouchers was blocked in late July by a federal judge who found that it is hampering efforts to contain the pandemic.
Judge George Daniels has blocked the implementation of the policy during the country's coronavirus emergency. He referred to statements from doctors and local officials who said that immigrants across the country fear they could jeopardize their immigration status by seeking medical and government assistance during the pandemic.
However, subsequent rulings from the 2nd Circuit Court of Appeals, including a ruling earlier this month, limited and eventually suspended Daniels' ruling, allowing the Trump administration to re-run public burden checks.
On the subject: Trump administration renews 'public burden' rule
The last rule applies to two types of applicants:
- applicants for admission to the United States or adjustment of status to lawful permanent resident (such applicants are subject to the rule of inadmissibility of a “social burden” unless Congress exempted them from this);
- applicants for an extension of a nonimmigrant stay or a change in nonimmigrant status (such applicants are eligible for benefits unless they are exempted by law or regulation from being considered a “public burden”).
Congress has made some exemptions for refugees, asylum seekers, some T and U nonimmigrant visa applicants (victims of human trafficking and some crimes, respectively), and some applicants covered by the Violence Against Women Act.
Pursuant to INA Section 212 (a) (4), 8 USC 1182 (a) (4) and the Final Rule when deciding that a “social burden” is not allowed a USCIS employee must consider:
- family status;
- assets, resources and financial condition;
- education and skills;
- prospective immigration status;
- the expected duration of the US residence permit;
- Affidavit of Support under INA Section 213A, Form I-864, or Form I-864EZ, as required.
None of the factors make an alien ineligible on the basis of a “social burden,” except that he has not filed Form I-864 or Form I-864EZ when appropriate. Determining the likelihood that a foreigner will prove to be a “social burden” at any time in the future is an assumed determination based on a combination of circumstances and weighing all the factors relevant to the foreigner's case.
DHS will only consider government benefits listed in the rule, including:
- Supplemental Security Income;
- temporary assistance for needy families (Temporary Assistance for Needy Families);
- Any federal, state, local income support cash transfer program (often called general assistance in a state context, but may be known by other names);
- Supplemental Nutrition Assistance Program (formerly called Food Stamp Benefits);
- Section 8 Housing Assistance Housing Choice Voucher Program;
- Section 8, Project Based Rental Assistance (including refurbished housing);
- public housing (in accordance with the Housing Act);
- Federally funded Medicaid program (with some exceptions).
DHS will not consider benefits and benefits such as:
- emergency medical care;
- disaster relief;
- national school lunch programs;
- special supplementary nutrition program for women, infants and children (Special Supplemental Nutrition Program for Women, Infants, and Children);
- the Children's Health Insurance Program;
- foster care and adoption subsidies;
- government subsidized student and mortgage loans;
- help with electricity;
- food pantries and homeless shelters;
- children's program Head Start.
According to the last rule, DHS will not consider receiving government benefits by a foreigner who, at the time of receipt or during the application or consideration of an application for admission to the United States, has changed status or extended stay while enlisting in the US military, or while on active duty or service in any component of the U.S. Armed Forces' Ready Reserve. Benefits received by spouses and children of US military personnel will also not be considered.
Benefits received by children born or adopted by US citizens residing outside the United States will not count, including for children who are acquiring US citizenship and entering the United States for interview purposes.
DHS will not count Medicaid benefits received:
- for treatment in the event of "emergency medical care";
- as services or benefits provided under the Education Act for Persons with Disabilities;
- as school services or benefits for anyone who is or is the oldest eligible for secondary education under state or local law;
- foreigners under the age of 21;
- pregnant women and women within a 60-day period from the last day of pregnancy.
As noted on the website USCISThe latter rule allows the federal government to better comply with US immigration law provisions regarding the inadmissibility of a “public burden”. The Final Rule does not provide for any fines or barriers to past, present, or future government benefits for US citizens or foreigners who have been exempted by Congress from grounds of inadmissibility.
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