Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

Leaked Proposed Rule on Changes to Public Charge Considerations Causes Concern, Not Real Yet

A leaked document widely covered in the media this week purports to be a draft of a new regulation expanding This concerns the way adjudicating officers determine whether the “public charge ground of inadmissibility” applies – the rule that can keep someone from obtaining an immigration status if it is likely they will require public assistance, and which already looks at receipt of certain public assistance for purposes of making a determination.

While officers would always have looked at earning ability, from a benefits perspective there is very little someone without at least permanent residence would be directly eligible to receive. The only items considered at all would be cash benefits, like Temporary Assistance for Needy Families which might be obtained on the basis of a family’s overall need, or long-term institutional care.

This particular draft rule would add new kinds of benefits to those already considered: children’s health insurance; Supplemental Nutritional Assistance Plan (“SNAP” – the program which used to be called “food stamps”); Supplemental Nutritional Program for Women, Infants and Children, (“WIC”); tax credits for low- to moderate-income families; and housing and transit subsidies. Not only would an applicant be penalized for using these benefits themselves, but they would be penalized if any dependent – including a US citizen child - has used these kinds of benefits in the three years before the application is adjudicated.

Applicants for an immigration status would therefore be penalized for using these programs for the benefit of their own children, regardless of whether the children are citizens.

To become a rule, this proposed rule language – in its current form – would need to be published in the Federal Register, and following a 60-day comment period a final rule would then need to be issued – which may or may not be the same as the published proposed rule. This proposal isn’t in place right now, and if some form of it becomes a rule we don’t at this point know what the final rule would actually say.

If something like this does eventually become a final rule, implementation is likely to be fought in the courts.