Public Charge Rule and Victory for International Students
Public Charge Rule Comes Into Effect on February 24, 2020
On August 14, 2019, the Department of Homeland Security (DHS) published a final rule governing the Immigration and Nationality Act’s public charge grounds of inadmissibility. The rule was stopped by nationwide injunctions but, on January 27, 2020, the U.S. Supreme Court granted the administration’s request for a stay of the nationwide injunction. This allows the public charge rule to into go effect, except in Illinois. DHS will begin implementing the rule on February 24, 2020.
This new rule changes the way DHS determines if someone is “likely at any time to become a public charge.” If someone is found to “likely at any time to become a public charge,” that person is found inadmissible to the US. Instead of looking at whether someone is primarily dependent on public benefits, DHS now looks at who has received or is likely to receive one or more of the specified public benefit, for more than 12 months in the aggregate within any 36-month period, to determine if they are inadmissible under the public charge ground.
Public benefit is defined as the following:
- Any federal, state, local, or tribal cash assistance for income maintenance, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and, federal, state, or local cash benefits programs for income maintenance;
- Supplemental Nutrition Assistance Program (SNAP);
- Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD;
- Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937;
- Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
- Public housing under section 9 of the U.S. Housing Act of 1937
To determine if someone is inadmissible under the public charge rule, DHS will weigh the person’s age; health; family status; education and skills; and assets, resources, and financial status. Receiving one or more of the specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment, is a heavily weighted negative factor.
DHS will not regard as a negative factor the receipt of specified benefits prior to the rule’s effective date, with the exception of cash assistance and long-term institutionalization benefits.
Nationwide Injunction: Change to Unlawful Presence for International Students
On August 9, 2018, the current administration attempted to change the way unlawful presence is calculated for students and exchange visitors in F, J, and M nonimmigrant status. Prior to the administration’s change, those individuals in the above nonimmigrant statuses would start accumulating unlawful presence on the day after USCIS formally made a determination that they violated their status or on the day an immigration judge ordered them excluded, deported, or removed. The new policy made it so that these individuals would start accumulating unlawful presence the day after they engaged in any activity that was not consistent with their status (e.g., no longer pursuing their course of study, engaging in unauthorized employment).
In response to this policy change, a lawsuit was filed in U.S. District Court for the Middle District of North Carolina. On February 6, 2020, the Court issued a permanent, nationwide, injunction. The injunction permanently stops the implementation of the new policy. The Court granted the permanent injunction to have nationwide impact. This means that the government cannot enforce their new policy anywhere in the US.
If you have questions about your immigration case here in Florida, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Groups. Contact Attorney Evelyn today at email@example.com to discuss any family or marital legal issues you may be experiencing.