Whereas most research shows that immigrants use public benefits at lower rates than native-born U.S. citizens,[1] a dizzying web of initiatives by the Trump Administration reveal a noisy, and perhaps intimidating, plan to reorder longstanding programs and standards in the realm of public benefits and financial support for immigrants. The upshot of these Administration efforts is that more frequently than ever before the lack of financial resources would be the grounds for denying U.S. immigration benefits. Although the U.S. courts have prevented enforcement of some Administration initiatives, it is no surprise that a substantial amount of confusion exists about the use of public benefits by immigrants.
In the early days of the Trump Administration, the leak of a draft executive order revealed plans for — redefining what constitutes a “public charge” (which makes a person inadmissible to the United States); expanding the number of federal programs considered to be a “means-tested public benefit” (these are benefits like food stamps and Medicaid); deporting lawful permanent residents who have used public benefits; increasing restrictions for low-income and low-skilled people intending to immigrate; and seeking repayment from immigrants’ financial sponsors for any public benefits conferred. Federal government implementation of these plans has taken several forms:
- January 2018 — The Department of State published in its Foreign Affairs Manual (FAM), and began implementing, new guidelines expanding the authority of a consular officer to use financial resources as a ground for denying visa applicants at U.S. consulates abroad. Some reports show immigrant visa denial rates on financial grounds have increased 400%.
- February 2018 – A leaked draft version of the new rule by the Department of Homeland Security (DHS) revealed a vast increase in the types of benefits that would be disqualifying. For example, the lawful use of benefits by a U.S. citizen child would be a negative factor for the immigrant parent.
- August 2019 — DHS published a final rule expanding the scope of people who could be denied permanent resident status based on the theory that they might use public benefits.
- October 2019 — A presidential proclamation announced a new requirement to prove private health insurance has been procured, or there are current financial resources to pay for foreseeable health care costs.
Lawsuits filed in several federal courts have stalled implementation of some of these initiatives, including the final DHS rule and the health care proclamation, however those lawsuits are not yet final. The uncertainty about what is the current law, and how ongoing litigation might impact the ultimate shape of legal standards relating to use of public benefits, fuels a practice atmosphere of maximum caution.[2] The practice problem is only exacerbated by the fact the Department of State continues to apply its new FAM standards in visa cases at U.S. consulates, leaving many applicants stranded abroad.
In light of what appears to be heightened risks for intending immigrants located abroad, some of the following guidance may be applicable for the visa applicant who is preparing for an interview at the U.S. consulate:
- Include evidence of the visa applicant’s own financial resources, any job offers in the United States, and education and skills that could correlate with job prospects.
- Include an affidavit from the joint sponsor describing his/her relationship to the visa applicant, and intent and ability to financially support the applicant.
- Ask if the sponsor or any member of his/her household received public means-tested benefits within the past three years, what kind of assistance they received, and if their circumstances have changed since then.
- Obtain health insurance to start within 30 days from the date you enter the United States, especially if you have any medical conditions requiring treatment. Even though that specific requirement under the presidential proclamation is temporarily on hold, having health insurance helps with the public charge analysis.
For those immigrants already in the United States who are applying for adjustment of status or extension of nonimmigrant status, consider this added guidance:
- Do not discontinue using benefits obtained solely on behalf of U.S. citizen dependents.
- Include the applicant’s resume with proof of education, work history, and salary. A letter from an employer could confirm whether current employment is likely to continue.
- If you are not a full-time student or primary caregiver, seek employment as soon as you receive a work permit.
- Take English classes if not already proficient.
Lawful permanent residents also have raised several questions about how the new web of requirements could possibly ensnare them. The immigration law does authorize U.S. officers to apply the rules of inadmissibility to lawful permanent residents who are returning to the United States. For now, the new DHS rule has been enjoined and its unforgiving standards are not the law. However, if the new DHS rule were to become effective, the lawful use of public benefits could be held against a lawful permanent resident. As a precaution, a lawful permanent resident with current medical conditions might obtain health insurance prior to traveling abroad. This precaution could help defuse the contention that the immigrant is likely to become dependent on public benefits.
Suffice to say, the area of U.S. immigration law involving public benefits and financial resources is more complex than ever before. Working with a qualified immigration attorney to evaluate a family’s circumstances, including financial resources and use of benefits, and to plan application strategy, is a smart way to proceed.
[1] A literature review indicates a lot more reliable research is warranted. See https://bipartisanpolicy.org/wp-content/uploads/2019/03/Immigrants-and-Public-Benefits-What-Does-the-Research-Say.pdf.
[2] The USCIS website includes posts on existing law as well as possible changes in law that could be unleashed, depending on outcomes in the courts. See https://www.uscis.gov/news/fact-sheets/public-charge-fact-sheet