Biden Administration Defining Public Charge Rule 

Passing new legislation regarding immigration has proven to be a difficult, if not impossible task for the Biden administration. The delicate balance of the Senate, along with the ongoing pandemic have led to immigration legislation being slowed to an almost complete halt. This has led to many immigration changes being policy changes and enforcement changes that are inspired by presidential order. One such policy change that is set to take place is the interpretation of the “public charge” rule. If you are seeking a visa or green card, then the public charge rule can affect whether your application is approved. If you have immigration questions, then it is important to speak to an experienced immigration attorney. 

WHAT IS THE PUBLIC CHARGE RULE?

The public charge rule is an immigration law that can deny someone from receiving a visa or green card if they are considered to be a public charge. A public charge is someone who is expected to become primarily dependent on the government for financial aid or long-term medical care. The text of the rule has generally remained the same, it is the interpretation of the rule that has changed over the years. In 1999, Immigration and Nationalization Service (INS) issued guidance of the rule and excluded things such as Medicaid, food stamps, and unemployment benefits from being considered when determining if an individual is likely to become a public charge. 

In 2019, USCIS announced new guidance seeking to essentially create a baseline wealth requirement for anyone seeking a visa or green card. The new guidance stated that anyone seeking a visa or permanent resident status that receives government benefits for more than a total of 12 months in a 36-month period would be considered a public charge and ineligible to become a permanent resident. Applicants were also investigated to determine whether they would become a public charge in the future. This rule was later repealed by USCIS after President Biden took office but was not immediately replaced.

WHAT PROPOSED REGULATION WILL DEFINE A PUBLIC CHARGE?

In a lengthy proposal, the Biden administration has offered several changes to the public charge rule in an effort to eliminate wealth-based inequities in immigration. Under the new rule, individuals can only be deemed as public charges if they receive government cash assistance and long-term institutionalization. This would return to a similar stance to the 1999 guidance and not include programs such as Supplemental Nutrition Assistance Program (SNAP), Medicaid, housing benefits, pandemic assistance, and Social Security benefits. Once the rule is officially published, then a 60-day period will open for comments. This would set the policy for determining who is a public charge going forward into future administrations until any future changes are made.

HOW DOES THIS AFFECT ME?

If you are seeking an adjustment of status, a visa, or a green card, then this can affect you directly. The timing of an immigration filing can be as important as the filing itself, as the same application can be either accepted or denied depending on how the rules are being interpreted at the given time. This proposed regulation does not open the gates to all potential applicants, but it also removes many of the wealth-based hurdles that were implemented during the Trump administration. Make sure you understand what documents or records are necessary to include with your immigration application. If you need help putting your immigration application or supporting documentation together, then make sure to speak to an experienced immigration attorney who can help you.

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