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National Skills Coalition is releasing two new fact sheets to assist adult education, community college, and other skills advocates in preparing for the imminent implementation of the immigration “public charge” rule. The US Department of Homeland Security (DHS) recently finalized this rule, which will make it significantly harder for millions of immigrants who are here legally to stay in the country.
Under the rule, US officials will deny green cards to individuals who are deemed likely to be dependent on the government for support. Officials will weigh a long list of positive and negative factors via a totality of circumstances test to make this determination. These include an immigrant’s age, income, English skills, educational credentials, and use of certain public benefits, among other factors.
In addition, a narrower version of the test, focusing just on public benefits usage, will be applied to non-immigrants who are living in the U.S. and seeking to extend or change their visa type (e.g. from a student visa to an employment visa).
The rule was due to take effect on October 15, 2019, although a New York federal judge has put the rule on hold.
NSC opposed this rule, which hurts our nation’s efforts to build a skilled workforce. (See our public comment against the rule from December 2018.) With record low unemployment, businesses are struggling to fill open positions, particularly for middle-skill jobs. Immigrants, who account for one in six U.S. workers, are essential to closing this skill gap. But the rule will undercut immigrants’ ability to access training for middle-skill jobs. The rule will also create substantial additional burdens on adult education and workforce training providers trying to help their participants comply with its provisions.
These are the key points that skills advocates should be aware of regarding the public charge rule:
It is important to note that the public charge test pertains to benefits received by individuals. Funds that are received by institutions – such as community colleges that blend TANF or SNAP dollars with other funds to support an educational program – are not counted against immigrant participants in those programs, unless those individuals have filed an individual application for public benefits.
To learn more about the rule, read NSC’s analysis below. NSC’s analysis of this complex, 837-page regulation focuses specifically on issues relevant to skills advocates. For broader analysis, we recommend materials from the National Immigration Law Center and its partners in the Protecting Immigrant Families campaign.
Public charge is the standard by which individuals can be denied lawful permanent resident (green card) status or otherwise forbidden from extending or changing their visas if they are determined likely to be dependent on the government for support. The public charge is a totality of circumstances test, in which federal officials weigh the positive and negative factors in an individual immigrant’s application and determine whether they are at risk of becoming a public charge. Before this new rule was enacted, the old public charge policy had been in place for decades. It was a much narrower rule with a clear, bright-line standard that was easier for immigrants and advocates to comprehend and navigate.
The public-charge test is a forward-looking test that will be applied to immigrant applicants beginning on October 15, 2019 if it is not enjoined by the courts. Use of public benefits before that date will not be counted against immigrants unless it is one of the two types of benefits that had been included in the longstanding public charge definition in effect since 1999 (cash assistance or long-term institutionalization at public expense).
DHS has made significant changes to the previous public charge policy. Among the key changes:
1. More people are now subject to the public charge test. Previously, individuals were subject to the public charge determination when applying for lawful permanent resident (“green card”) status, or when existing green card holders were being readmitted to the US after more than six months outside the country. Under the new rule, people will continue to be subject to the public charge test in those cases. In addition, individuals living in the United States will face a narrower test — focusing just on public benefits usage — when they apply for, extend, or change the category of any one of a long list of non-immigrant visas. This also means that the same person might be subject to the public charge test on multiple occasions, as it is very common for individuals to extend or change their status repeatedly. For example, someone might arrive in the US on a student visa, then later change to an employment visa, and eventually become a permanent resident.
2. The factors that are considered in the totality of circumstances assessment have been further codified. While the general list of factors to be considered in the totality of circumstances test was already codified in statute, the final public charge rule has now fleshed out those with substantially more detailed considerations, including a requirement that immigrants provide their credit history and credit score (if they are available).
Factors now include:
3. More kinds of benefits are now counted as negative factors in the public charge test. Under previous policy, only two types of public benefits usage counted against immigrants: receiving cash assistance or receiving long-term institutional care at public expense. DHS has significantly expanded that list, which now includes:
Non-cash benefits that are wholly state-funded are not considered in the public charge test.
(Benefits received by family members of the immigrant applicant do not count. However, the size of an immigrant’s household – including people who may not be physically living with but are financially dependent on the immigrant – will still influence many of the calculations for the public charge test.)
4. The process of calculating public benefits usage is now more complicated. Under the new rules, receiving any of the above-listed public benefits for more than 12 months in any 36-month period is a heavily negative factor. If an individual is receiving two benefits in a given month, that will count as two months for the purposes of the public charge calculation.
5. The ripple effect of the new rule will be felt far beyond the immigrants who are personally subject to the public charge test. For example, an individual already living in the US who is applying for a green card may have a US citizen spouse; if federal officials deny the green card application because the applicant is at risk of becoming a public charge, the couple may be faced with a difficult decision about whether they can continue their lives together in the United States, or must move abroad or be separated.
Similarly, immigrants who are themselves already green-card holders or US citizens may be hoping to sponsor a family member to immigrate to the US in the future. These individuals will likely have questions about how the public charge rule will affect their future plans; they should be referred to a reputable legal services provider for advice.
6. A new “public charge bond” process is being implemented to allow individuals to override their negative public charge determination. DHS has established a complex new process to allow individuals who are at risk of becoming a public charge to purchase a bond that enables them to be admitted to the United States, but only at the discretion of the DHS official processing their application. The minimum cost of the bond will be $8,100 plus fees; the immigrant will forfeit the entire value of the bond if they use public benefits in the future. Much remains unknown about the bond process, but its existence adds an additional layer of financial pressure for immigrant applicants.
Only the benefits specified in the rule will count against immigrants in the new public charge test. Thus, other benefits will NOT count. These other benefits include:
Some categories of immigrants are not subject to the public charge test.
In addition, individuals are not subject to a public charge test when they apply for US citizenship.