Individuals who have received public benefits will face increased scrutiny when applying for permanent residency, visas, or changes to nonimmigrant visa status, if a currently proposed U.S. Department of Homeland Security (DHS) rule is ultimately implemented.

The new rule proposes to weigh income, health, access to health insurance, age, and language proficiencies as part of the “totality of the circumstances” when considering an individual’s immigration status. The rule is controversial in part because of the disproportionate negative effect it could have on those with low incomes or less education.

DHS proposes to consider any current and past receipt of certain public benefits “as a negative factor in the totality of the circumstances, because it is indicative of a weak financial status and increases the likelihood that the alien will become a public charge in the future.”

Another proposed “heavily weighed negative factor” is a lack of “private health insurance or the financial resources to pay for reasonably foreseeable medical costs related to a medical condition that is likely to require extensive medical treatment or institutionalization.”

Those who receive cash benefits are already subject to potential exclusion under current DHS rules. This includes recipients of federal, state, local, or tribal cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF), and Supplemental Security Income (SSI).

New guidelines, if enacted, would also negatively weigh past receipt of benefits and potential likelihood to receive public benefits in the future. These factors were cited as evidence of a lack of ability to be self-sufficient.

The proposed rule would extend potential excluding social service benefits to include:

  • Medicaid (with limited exceptions for emergency medical conditions and education-related disability services),
  • Medicare Part D Low Income Subsidy,
  • Supplemental Nutrition Assistance Program (SNAP or food stamps),
  • Long-term government-funded institutionalized care,
  • Section 8 Housing Choice Voucher Program and Project-Based Rental Assistance, and
  • Public housing.

In addition, the rule proposes that household income, physical and mental health, and overall net worth will be weighted in reference to an individual’s application. A household income of at least 250 percent above federal poverty guidelines would be considered “heavily positive,” as would “significant income, assets, and resources.”

Limited English proficiency and adverse physical and mental health conditions would be considered as negative factors.

Benefits received by active duty service members, including in the Ready Reserve component, are exempt, as well as those received by active duty member’s children and spouses. Other exempt benefits include:

  • Disaster relief aid,
  • Emergency medical assistance,
  • A U.S. citizen’s child’s benefits including Medicaid, and
  • Benefits received by a potential adopted child of U.S. citizens.

Applicants with higher education degrees, demonstrated skill sets, and other professional credentials will also be seen as more employable and less likely to become a public charge and therefore weighted more positively.

DHS proposes to use medical assessments from panel physician and civil services surgeon medical examinations to evaluate how an applicant’s health will be weighted within his or her overall assessment.

Costs would increase for Form I-485 applications if public charge grounds of inadmissibility are applicable. A new Form I-944 would be required to prove that the applicant is not likely to need public assistance in the future. Costs would also increase for Form I-129 (Petition for a Nonimmigrant Worker), Form I-129CW (Petition for a CNMI-Only Nonimmigrant Transitional Worker), or Form I-539 (Application to Extend/Change Nonimmigrant Status), as applicable, as well. Finally, I-945 (Public Charge Bond) and Form I-356 (Request for Cancellation of Public Charge Bond) processes would require additional costs as well.

The new rule, if enacted, has the potential to negatively impact the economies related to these human services in a number of ways, DHS acknowledged: For example, possible impacts include Medicaid revenue reductions, decreased need for pharmacies that provide Medicare Part D Low Income Subsidy prescriptions, and decreased demand for medical supplies, medications, or SNAP-eligible groceries and farm crops. Landlords accessing federal housing funds may also see reduction of income in this area.

In response, some U.S. immigrants have reportedly withdrawn from receiving social service benefits out of fear of potential complications to their visa and other immigration candidacies.

It could take up to a year to finalize the new rule, before which the above-mentioned categories could be changed. Prior to finalization, the Trump administration must review all received comments, potentially in the thousands, and survive likely potential litigation aimed at preventing implementation.

DHS said the proposed rule will be published in the Federal Register “in the coming weeks.” Once it is published, a comment period will last 60 days.

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