By Josephaus R Weeks for the African Coalition
About 2.1 million Africans migrated to the United States of America in 2018 according to official records. This number increases to 4.2 million when those from Caribbean nations are included.
Top countries of origin for African immigrants were Nigeria 221,000 or 14 percent; Ethiopia 164,000 or 10 percent; Egypt 143,000 or 9 percent; Ghana 121,000 or 8 percent. Altogether constituting 41 percent.
Four States have more than 100,000 African born immigrants: New York has 164,000; California 155,000; Texas 134,000 and Maryland 120,000
Approximately 68,000 African born immigrants reside in the Greater Los Angeles area where I live. For the past 10 years those who recently immigrated are predominantly refugees, which is about 27 percent. They are those who escaped civil wars and ethnic conflicts in their various countries of origin.
What is Public Charge?
A public charge has historically been a person dependent on the government for financial and material support.
With the new rule, it now becomes a test to determine if someone applying for permanent residence through a relative or a visa to enter the United States is likely to depend on public benefits in the future.
On August 14, 2019 the Department of Homeland Security (DHS) published a final rule related to public charge in the Federal Register. This Public Charge rule which was to take effect as of October 15, 2019 only became effective after the Supreme Court of the land on the 27th of January 2020 lifted a nationwide injunction barring implementation.
The new rule will mainly impact those seeking permanent residence (green card) status through family member petitions, or for a visa to enter the United States. No other types of immigration cases are impacted. It is my advice that immigrants consult immigration experts who understand public charge to learn whether the new public charge rule applies to them or their families. It must also be noted that many categories of immigrants are exempt from public charge.
Public Charge Exemptions
- Refugees and Asylees
- Special Immigrant Juvenile Status (SIJS) a special way for minors currently in the US to adjust their status and become permanent residents.
- U Visa – Set aside for victims of crimes and their immediate family members.
- VAWA self-petitioners –Violence Against Women Act
- T Visa – These are visas for victims of human trafficking
- DACA applicants – Deferred action for childhood arrivals. However, if they later apply for a green card through a family member, they will have to go through a public charge test.
- TPS applicants – Temporary Protected Status: designated countries
- Most legal permanent residents – unless you travel outside of the US for more than 180 days.
- US citizens
- Others – Amerasians; Afghan and Iraqi military translators; certain Cuban and Haitian adjustment applicants; certain Nicaraguans; and Central Americans under NACARA- The Nicaraguan Adjustment and Central American Relief Act passed in 1997; Soviet and Southeast Asian Lautenberg parolees.
A Few Important Points Regarding the Public Charge
- The new rule interprets a provision of the immigration and Nationality Act (INA) pertaining to inadmissibility. The inadmissibility ground at issue says a person is inadmissible if they are likely to become a public charge. INA 212(a)(4) applies to individuals seeking admission into the United States or applying for adjustment of status. This provision of the law does not however apply to all immigrants as already stated.
- Public Charge and this rule do not apply in the naturalization process, through which lawful permanent residents apply to become United States citizens.
What Is The Current Law?
- Currently, immigration officers decide public charge by evaluating whether an applicant for a green card or an individual seeking to enter the United States on certain visas is likely to become primarily dependent on the government for support. Primary dependence refers to reliance on cash-aid for income support or long term care paid for by the government.
- To decide whether an individual is a public charge, immigration officers rely on multiple factors specified in the INA. They must also rely on the “affidavit of support,” which is a contract signed by the immigrant’s sponsor, indicating that the sponsor will financially support the immigrant. This affidavit of support offers strong evidence that the immigrant will not become primarily dependent on the government.
- Under existing policy, immigration officers also consider whether an immigrant applying for a green card or admission to the United States has used cash aid such as “welfare” or “SSI” (Supplemental Security Income) or long-term institutionalized care in the past. Immigrants who have used this form of assistance will have to show that it is not likely they will need these resources for support in the future.
- Use of publicly-funded health care, nutrition, and housing programs are not currently considered negative factors for purposes of public charge. Beginning October 15th 2019 according to the new rule, some of these benefits will be considered in the public charge determination. It must be noted that this is a drastic change from longstanding policy.
- Also, the new rule will apply only to adjustment of status applications postmarked on or after October 15th, 2019. It will not affect pending applications postmarked before that date.
- Individuals seeking to enter the United States apply at consulates abroad. At these consulates, the officers use what is referred to as the Foreign Affairs Manual (FAM) as guidance on how to make decisions.
What’s In The New Rule?
- While the test for whether someone is likely at any time to become a public charge will still be prospective as required by the statute, the new rule redefines the definition of a public charge. Now, instead of assessing whether an applicant is likely to become primarily dependent on the government for income support, the new rule defines a public charge as a person who receives any number of public benefits for more than an aggregate of 12 months over any-36 month period of time. Each benefit used counts toward the 12-month calculation. For instance, if an applicant receives two different benefits in one month, it counts as two-month’s use of benefits.
- The rule expands the list of publicly-funded programs that immigration officers may consider when deciding whether someone is likely to become a public charge. Under the new rule, Medicaid, the Supplemental Nutrition Assistance Program (SNAP, formerly known as Food Stamps), Section 8 housing assistance and federally subsidized housing will be used as evidence that a green card or visa applicant is inadmissible under the public charge ground.
- The rule also considers that all use of cash aid, including not just Temporary Assistance for Needy Families (TANF) and SSI but also any state or local cash assistance program, could make an individual inadmissible under the public charge ground.
- Benefits received by family members of the immigrant will still not be considered in the public charge determination. Additionally, Medicaid received by applicants while under age 21 or while pregnant are not considered. I addition, the rule does not change long-standing policies that allow immigrants to access emergency medical care and disaster relief without public charge repercussions.
- It is very important to remember that prior receipt of benefits is only one factor in the public charge determination. The new rule sets out criteria for considering several factors in assessing the likelihood that a person will need more than 12 months of public in aggregate over a 36 month period in the future. The rule also elaborates on criteria for considering financial status, family size, age, education, skills and employment among others.
- The rule allows immigration officers to consider English proficiency (positive); or lack of English proficiency (negative); medical conditions and availability of private health insurance; and past use of immigration fee waivers. The rule will require immigrants to attach a Declaration of Self-Sufficiency when applying for a green card in addition to the many forms already required.
- The rule creates “heavily weighted negative factors” and a couple of “heavily weighted positive factors”
It is a heavily weighted negative factor to receive more than 12 months of public benefits in the aggregate over the 36-month period of time before submitting the application for adjustment or admission. Heavily weighted positive factors include having a household income of at least 250% of the federal poverty level ($64,375 for a family of 4) and having private health insurance.
It is not clear to me how an officer should decide a case that has a heavily weighted factor or both heavily weighted negative and positive factors.
- Bonds are possible where an immigration officer finds inadmissibility based on public charge. Bonds will be highly discretionary, and the new rule says that heavily weighted negative factors in a case will generally make an applicant ineligible for a bond.
Five Things To Know About Public charge
Reminder: The Trump administration recently announced that it will be harder for some people to receive certain visas or a green card through a family member if they use Medi-Cal, SNAP and subsidized housing. This change to the ‘Public Charge’ is what we are discussing.
Not everyone need to worry about the new public charge rule though.
If you are a Green Card holder (lawful permanent resident)
- Generally, people who already have a green card are not affected by public charge.
- There is no public charge test to renew a green card.
- Green holders cannot be deported simply for using public benefits. It is very difficult for the government to deport a green card holder for being a ‘public charge.’
- This public charge rule could apply if a permanent resident leaves the United States for more than 180 days during one trip, the government can ask questions to see if the person is a ‘public charge’ upon returning to the U.S. It is important for green card holders to speak to a trusted immigration attorney or an accredited representative before they embark on a trip that will keep them out of the U.S. for more than 180 days.
- There is no public charge test to apply for citizenship. However, an immigration official might ask you questions about receiving public benefits to figure out if you received a benefit when you were not eligible for it. Warning: You should review your public benefits history with a trusted legal representative before applying for citizenship.
If You Are Undocumented
- Each State has its rules. The State of California does not tell Immigration and Customs Enforcement (ICE) when you sign up for a public benefit.
- If you are not eligible to apply for a green card now, there is no reason to give up needed benefits. If you are not applying for a green card now, even if you plan to apply many years in the future, there may be no benefit to giving up necessary benefits now.
- The public charge test only affect some people who are applying for green card through a family sponsor or petition, or applying for certain temporary visas abroad. The new changes to public charge only affect applications filed in the U.S. on or after October 15, 2019.
- Some immigrants do not have to worry about a public charge test. These people can use public benefits without problems because public charge doesn’t apply to them. These people include:
- Refugees, asylees, and people applying for asylum
- People applying for a U visa (victims of crime), T visa (victims of trafficking), VAWA (certain victims of domestic violence), and Special Immigrant Juvenile Status (children who have been abused, abandoned, or neglected)
- People applying for a green card based on already having a U visa, T visa, VAWA, asylum, or refugee status
- People renewing TPS or DACA
- Anyone who wants to submit an immigration application should work with a trusted immigration attorney or accredited representative to prepare a strong application.
IF YOU WANT TO SPONSOR A FAMILY MEMBER TO COME TO THE U.S.
- There is no public test to naturalize. You can become a U.S. citizen even if you have used benefits or need a fee waiver for your application. There is no public charge test to renew a green card.
- You can sponsor a family member and still use public benefits.
- If you are sponsoring your family member and do not have enough income to support your family member, you can add a second (“joint”) sponsor who has enough income to support the family member. Again I must stress: It’s important to review your family member’s financial documentation with a trusted immigration attorney or accredited representative to prepare a strong application and decide whether a joint sponsor is needed.
- If your family member is going to a visa interview inside the U.S., only your family member’s use of certain benefits can be counted against them.
- On the other hand if your family member is going to a visa interview outside the U.S. at a consulate, your use of benefits might show that you cannot financially support your family member- in this case, a joint sponsor might be needed.
Again, I strongly recommend you talk with a trusted attorney or accredited representative to help prepare the case.