Another Brick In The Wall: New Public Charge Guidance Bodes Ill For American Families And Communities

By: Jennifer Howard, Associate Attorney of Kirby Gamblin Joseph, ABIL Lawyer
Joseph Law Firm Immigration Blog

The Trump administration is adding another weapon to its stockpile in the war on immigration by seeking to broaden the definition of who is likely to become a “public charge” and in effect to make it more difficult for immigrants to come to the United States.

Specifically, the U.S. Department of State changed the Foreign Affairs Manual (the “FAM”), which provides guidance to consular officers in deciding if an applicant is eligible for a visa. Under prior guidance, a qualifying I-864 “Affidavit of Support” signed by a U.S. citizen, national, or lawful permanent resident sponsor whose income was over 125 percent of the Federal Poverty Guidelines was almost always sufficient to establish that the applicant was not likely to be a “public charge” and thus was not inadmissible on public charge grounds (i.e., dependent or likely to become dependent on government benefits). However, the updated FAM instructs that the I-864 Affidavit of Support is only one of many factors to be taken into consideration. Other factors that will be taken into account are the applicant’s age, health, family status, assets, resources, financial status, education, and skills.

The new guidance also takes into account any U.S. citizen, national, or lawful permanent resident sponsor’s or family member’s receipt of certain “noncash” public benefits and assistance programs for themselves and, in many cases, for their U.S.-born, U.S. citizen children.

Such noncash benefits include, but are not limited to:

• Supplemental Nutrition Assistance Program (SNAP) (formerly called “Food Stamps”;
• the Medicaid Program (other than payment under Medicaid for long-term institutional care);
• the Child Health Insurance Program (CHIP);
• emergency medical services;
• the Women, Infants and Children (WIC) Program;
• other nutrition and food assistance programs; other health and medical benefits;
• child care benefits;
• foster care;
• transportation vouchers;
• job training programs;
• energy assistance, such as the low-income home energy assistance program (LIHEAP);
• educational assistance, such as Head Start or aid for elementary, secondary, or higher education;
• job training;
• in-kind emergency community services, such as soup kitchens and crisis counseling;
• state and local programs that serve the same purposes as the Federal in-kind programs listed above; and
• any  other Federal, State, or local program in which benefits are paid in-kind, by voucher or by any means other than payment of cash benefits to the eligible person for income maintenance.

This also applies to any co-sponsor or joint sponsor for an immigrant visa petition; and similar changes are expected soon for applications for adjustment of status through United States Citizenship and Immigration Service (USCIS).  As a result, this change greatly expands the range of benefits that can be used to issue a denial based on a public charge determination, such as whether a noncitizen parent’s U.S. citizen children receive certain health- or food-related aid.

Even though these rules have not yet been finalized, this new guidance from immigration authorities gives applications for immigrant visas and adjustment of status increased chances for complications and even denial. What this means is that where immigrant visa applicants and their attorneys previously only needed to worry about completing a qualifying I-864 Affidavit of Support with supporting documents, an application will now require a great deal of evidence addressing the rest of the factors mentioned above. In many cases, these applications will require lengthy legal arguments about why the evidence submitted should be sufficient proof that the applicant is not inadmissible on public charge grounds, why the positive factors in a case outweigh any negative factors, and why a person is not likely to become a public charge in the future even if they or a family member received public benefits in the past.

Worse even, this change also places at higher risk the many U.S. citizen children who have one or both parents seeking or hoping to seek lawful immigration status in the United States. In many cases, the U.S. citizen children, and perhaps spouse, depend on a combination of healthcare, nutrition and food assistance, and childcare and education benefits (for which they qualify), in addition to the intending immigrant parent or parents’ income, to make ends meet. In these cases, the family will be harmed beyond repair if the immigrant visa or adjustment of status application is denied on public charge grounds. This is particularly ominous for consular processing cases where there may be little to no recourse for a public charge denial once the applicant is outside the country for the purposes of attending his or her immigrant visa interview and is unlikely to be able to reenter following that denial.

Additionally, where these families already worry that using government programs could carry unintended immigration consequences or place them at risk for detention by Immigration and Customs Enforcement (ICE), this policy could essentially force millions of American families to choose between seeking lawful immigration status and going without necessary food, shelter, healthcare, and education services for their U.S. citizen children. As a result, the implementation of these changes and the associated misinformation and fear of accessing public benefits programs for which these families qualify are likely to exacerbate nationwide the problems of hunger, poverty, homelessness, lack of access to healthcare, illiteracy, poor academic performance, and community disengagement and disenfranchisement.