Border and Enforcement News

Siskind Summary – The Proposed Public Charge Rule

USCIS has released a long-anticipated, controversial proposed rule that would significant expand the government’s use of a provision of the Immigration and Nationality Act that bars the admission of immigrants who are deemed likely to become a “public charge.” The rule would cover not all immigrants and non-immigrants seeking admission to the US, adjustment of status, and extensions and changes of status for non-immigrants.

The 447-page rule defines “public charge” as used in Section 214(a)(4) of the Immigration and Nationality Act, defines the types of public benefits to be considered in public charge inadmissibility determinations, and the various factors to be considered by the government in making public charge determinations. The proposed rule also sets out the procedure for people to pay “public charge bonds” in adjustment of status cases. Finally, the agency is proposing revisions to existing USCIS information collections and new information collection instruments to accompany the proposed regulatory changes.

The public will have 60 days to comment ending on November __, 2018. The proposed rule also comes with the withdrawal of a 1999 proposed rule on public charge criteria that never was finalized.

I.Public Participation – description of the commenting process

II.Executive Summary – DHS states that the purpose of the proposed rule is to ensure “aliens subject to the public charge inadmissibility ground “are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.”

A. Major Provisions of the Regulatory Action

• Amending 8 CFR 103.6, Surety bonds used to address public charge concerns.
• Amending 8 CFR 103.7 adding fees for a new Form I-945, Public Charge Bond and Form I-356, Request for Cancellation of Public Charge Bond.
• Adding 8 CFR 212.20 which identifies categories of aliens subject to public charge inadmissibility determinations.
• Adding 8 CFR 212.21 which includes definitions regarding the public charge requirement.
• Adding 8 CFR 212.22 which sets out the standard for determining the likelihood of becoming a public charge.
• Adding 8 CFR 212.23 which sets out an exemption and waiver process.
• Adding 8 CFR 212.24 which provides a methodology for calculating the annual aggregate amount of the portion attributable to the alien for certain benefits.
• Amending 8 CFR 213.1 to add public charge bond procedures for adjustment of status applications.
• Amending 8 CFR 214.1 mandating the denial of requests for admission, extension, and maintenance of status for non-immigrants who have received public benefits described in 8 CFR 212.21(b).
• Amending 8 CFR 245.4 to require a new Form I-944, Declaration of Self-Sufficiency, for adjustment of status applicants.

 

B.Costs and Benefits

USCIS notes that there will be new fees for the I-944 accompanying adjustment of status applications and for non-immigrant extension of stay and change of status applicants. Also, there will be new time burdens associated with complying with the new rule. Plus, people who have to post public charge bonds will have the costs associated with those bonds and the I-945 and I-356s that are part of the bond process. These costs will be $45 million to $129 million per year. Over ten years, the cost would be $453 million to $1.29 billion. Additional costs for non-immigrants filing I-129s will range from $6 million to $60 million annually and $3 million to $31 million annually for I-539 applicants.

DHS estimates those individuals and companies filing bonds using Form I-945 would be burdened $34,234 annually and those filing Form I-356 would be burdened $825 annually.

USCIS is claiming savings to the government based on people not applying for benefits that will trigger public charge inadmissibility issues. DHS estimates that over 10 years, that between $15.9 billion and $19.3 billion fewer dollars will be spent. DHS notes that these reductions will have an indirect economic impact on health care companies, grocery stores, landlords, etc. but does not quantify these costs. DHS anticipates a likely increase in denials of adjustment of status applications, but doesn’t offer an estimate of how many. USCIS will also have to staff a new unit charged with administering the new public charge bond process.

III. Purpose of the Proposed Rule

1. Self-Sufficiency – people “do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor and private organizations.”

DHS will consider the following minimum factors that reflect the likelihood an alien will become a public charge:

• The alien’s age
• Health
• Family status
• Resource
• Financial status
• Education and skills
• An affidavit of support submitted by the alien’s sponsor
• Any other factor relevant to the likelihood of becoming a public charge

Decisions will be based on determining that an alien is  “incapable of earning a livelihood,” “does not have sufficient funds in the US for support,” and “who has no person in the US willing and able to assure the alien will not need public support.”

B. Public Charge Inadmissibility Determinations

USCIS notes that the statute lays out the broad factors to be used to determine is one is a public charge, but neither the statute nor the proposed 1999 rule outline the mandatory factors or explained how to weigh factors in the public charge inadmissibility determination. Also, the 1999 proposed rule only spoke to cash benefits, but this rule removes the “artificial distinction” between cash and non-cash benefits.”

IV.Background

The main factors in determining public charge inadmissibility are 1) the factors involved in determining whether an alien is likely to become a public charge, 2) the relationship between public charge and 3) the consideration of a sponsor’s affidavit of support.

1. Legal Authority – Outlines the sections of the INA that pertain to the public charge inadmissibility ground.
2. Immigration to the United States – Outlines how the immigrant visa and immigration system work.
3. Extension of Stay and Change of Status – Outlines how the non-immigrant extension of stay and change of status process works.

Public Charge Inadmissibility – Outlines the bar on admission for those deemed likely to become a public charge. The INA doesn’t define public charge, but specifies applicable factors. Notes general requirement to present affidavits of support in family immigration cases and some employment immigration cases. Bonds are authorized in the statute, but have rarely been used in recent years.

1. Public Laws and Case Law – Outlines the history since 1882 of the public charge bar including case law.
2. Public Benefits under PRWORA (the 1996 welfare reform law) – Defined public benefit as “any grant, contract, loan, professional license, or commercial license provided by an agency of the US” and any “retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit.”

 

(a) Qualified Aliens

Under PRWORA, qualified aliens are eligible for federal means-tested benefits after 5 years and are not eligible for “specified federal programs.” PRWORA also defined which types of immigrants were covered by public charge inadmissibility and which types of benefits triggered admissibility issues.

(b) Public Benefits Exempt under PRWORA – Congress excluded benefits such as contracts, professional licenses and commercial licenses from the “federal public benefit” definition along with medical assistance for certain emergency medical conditions, short-term, non-case in-kind emergency disaster relief, public health assistance for immunizations, programs which deliver in-kind services at the community level (such as soup kitchens) and don’t check recipients’ incomes, certain programs for housing or community development assistance administered by HUD. These benefits will not be covered by the proposed rule

3. Changes under IIRIRA – the factors in the INA were set under the bill from 1996. It also set the affidavit of support requirements for all family immigration cases and certain employment-based ones. “Although an alien may obtain public benefits for which he or she is eligible, the receipt of those benefits may be considered for future public charge inadmissibility determination purposes.”
4. INS 1999 Interim Field Guidance – the INS issued a field guidance in 1999 that identified how the agency would determine if a person is likely to become a public charge. The INS proposed the policies as regulations in May 1999. DOS issued a cable implementing similar guidance for visa applications and the FAM was updated as well. The 1999 changes focused on the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense. The INS consulted with HHS, SSA and USDA and determined that relying on the government for either of these two forms of assistance is the “best evidence of whether an individual is relying primarily on the government for subsistence.”
5. Public Charge Bond

An alien determined to be inadmissible on public charge grounds he or she may be admitted in the discretion of DHS, if otherwise admissible, upon the giving of a suitable proper bond. DHS notes that public charge bonds have been around since the late 1800s.

V. Discussion of Proposed Rule

According to DHS, the rule does the following:

• Defines public charge and public benefit
• Establishes a framework under which DHS will evaluate those factors to determine whether or not an alien is likely at any time in the future to become a public charge
• Clarify the role of a sponsor’s affidavit of support
• Sets certain factual circumstances that would weigh heavily in favor of determining an alien is not likely to become a public charge
• For applications for adjustment of status, the alien would be required to submit a form I-944
• Establish a public charge bond process in the adjustment of status context
• Clarifies DHS’s authority to set conditions for nonimmigrant extension of stay and change of status applications
• Interprets the public charge inadmissibility and deportability ground

A. Applicability, Exemptions, and Waivers

The processes and evidentiary requirements proposed in this rule vary depending on the type of benefit and status an alien is seeking.

1. Applicants for Admission

For nonimmigrant visas, the type of nonimmigrant status and the duration of the nonimmigrant’s stay in the US would be considered in assessing whether the applicant has met his or her burden of demonstrating that he or she is likely to become a public charge.

DHS notes that the process for people consular processing immigrant visas at consulates would not change under the proposed rule.

Lawful permanent residents aren’t considered to be applicants for admission upon their return from a trip abroad. Exceptions are when an LPR has abandoned his or her status, is outside the US for 180+ days, has engaged in illegal activity after departing the US, LPRs who have departed the US while in removal proceedings, LPRs who have committed certain offenses and LPRs attempting to enter the US without inspection.

2. Extension of Stay and Change of Status Applicants

DHS is proposing to require an applicant for an extension of stay or change of nonimmigrant status to attest that he or she has neither received since obtaining the nonimmigrant status nor is likely to receive at any time in the future one or more public benefits under the proposed rule.

DHS admits that 212(a)(4) applies to applicants for visas, admission, and adjustment of status, but that it is asserting the government’s interest in ensuring alien’s do not depend on public benefits to meet their needs. Aliens must remain self-sufficient for the entire period of their stay. DHS will now consider an alien’s financial status in determining if the alien has maintained their current nonimmigrant status. Questions will be added to the I-129 and I-539 regarding this. Employers will have to ask their workers about this in order to complete the forms.

The proposed rule has a list of non-immigrant categories and whether they are subject to the public charge rule (dependent visas follow the rule for the principle):

A-1, A-2 – No
A-3 – Yes
B-1/B-2 – Yes
C-1/C-1D/C-2/C-3 – No
CW-1 – Yes
D – Yes
E-1/E-2/E-2-CNMI – Yes
E-3 – Yes
F-1 – Yes
G-1/G-2/G-3/G-4 – No
G-5 Yes
H-1B/H-1B1 – Yes
H-1C – Yes
H-2A – Yes
H-2B – Yes
H-3 – Yes
I – Yes
J-1 – Yes
K-1 – Not applicable
K-3 – Yes
L-1 – Yes
M-1 – Yes
N-8 – Yes
NATO-1-7 – No
O-1 – Yes
P-1 – Yes
Q-1 – Yes
R-1 – Yes
S-5/6/7 – Yes
T-1 – No
TN – Yes
U-1 – No
V-1 – Yes
W-B – Not applicable

3. Adjustment of Status Applicants

DHS has a chart showing the applicability of the public charge to various types of adjustment cases and whether an I-864 Affidavit of Support is required:

Family categories
Immediate Relatives of US citizens – subject/required
Family 1^st – subject/required
Family 2^nd – subject/required
Family 3^rd – subject/required
Family 4^th – subject/required
Fiance (admitted as K-1/K-2) – subject/required
Amerasians born between 12/31/1950 and 10/22/1982 – subject/exempt
Amerasians born in Vietnam between 1/1/62 and 1/1/76 – Not subject/exempt
IW-6 Spouses, widows, widowers – subject/exempt
Immediate Relative VAWA applicant – subject/exempt
First Preference VAWA – Not subject/exempt
Second Preference VAWA – Not subject/exempt
Third Preference VAWA – Not subject/exempt

Employment categories

EB-1 – Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140
EB-2 – Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140
EB-3 – Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140
EB-5 – Subject/Not applicable

Special immigrant categories

Special Immigrant EB-4 Religious Workers – Subject/Not applicable
Special Immigrant EB-4 International employees of US government abroad – Subject/Not applicable
Special Immigrant EB-4 Employees of Panama Canal – Subject/Not applicable
Special Immigrant EB-4 – Foreign Medical School Graduates – Subject/Not applicable
Special Immigrant EB-4 – Retired employees of International Organizations – Subject/Not applicable
Special Immigrant EB-4 – SL-6 Juvenile Court dependents – Not subject/Not applicable
Special Immigrant EB-4 US Armed Forces Personnel – Subject/Not applicable
Special Immigrant EB-4 – International Broadcasters – Subject/Not applicable
Special Immigrant EB-4 – Iraqi/Afghan interpreters – Not subject/exempt

Refugee, Asylee, and Parolee categories

Asylees – Not subject/exempt
Indochinese Parolees – Not subject/Exempt
Polish and Hungarian Parolees – Not subject/Exempt
Refugees – Not subject/Exempt
Cuban-Haitian Entrants under IRCA – Not subject/Exempt
HRIFA – Not subject/exempt

Other categories

Diplomats Section 13 – Subject/Exempt
Individuals born in the US under diplomatic status – Subject/exempt
Diversity Visa – Subject/Exempt
W-16/W-26 legalization – Subject/exempt
T-1 Victims – Subject/exempt
American Indian – Not subject/exempt
Texas Band of Kickapoo Indians – Not subject/exempt
S visas – Subject (but waiver available)/exempt
Private Immigration Bill – Depends on bill text/depends on bill text
NACARA – Not subject/exempt
Lautenberg – Not subject/exempt
Registry – Not subject/exempt
U Victims – Not subject/exempt
TPS – Not subject/Exempt

4. Exemptions

Lists again the categories above that are outside the public charge framework.

5. Waivers

The proposed rule at 212.23(b) lists categories Congress has authorized to apply for waivers of the public charge inadmissibility ground:

• T nonimmigrants
• S nonimmigrants
• Applicants for adjustment of status under Section 245(j) (alien witness or informant)
• Other waivers of the public charge ground in Section 214(a)(4)

B. Definitions of Public Charge and Related Terms

1. Public Charge

Not defined in the statute. DHS proposed to define it to be an alien “who receives one or more public benefits, as defined in 8 CFR 212.21(b).” Aliens subject to the ground should “not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

2. Public Benefit

DHS is defining “public benefit” to include a specific list of cash aid and noncash medical care, housing and food benefit programs where either 1) the cumulative value of one or more such benefits where DHS can determine the cash value of the benefit exceeds 15% of the Federal Poverty Guidelines for a household of one within a period of 12 consecutive months (“monetizable benefits”; or 2) for benefits that can’t be monetized, the benefits are received for more than 12 months in the aggregate within a 36-month period (“non-monetizable benefits”). In cases where there’s a combination of both (and the benefits that can be monetized are less than 15%, then the threshold for receipt of non-monetizable benefits would be 9 months in a 36-month period.

The rule will consider the following public benefits:

• Monetizable benefits
  • Any Federal, State, local or tribal cash assistance for income maintenance including SSI, TANF, and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the state context)
  • Benefits that can be monetized under new 8 CFR 212.24
• Supplemental Nutrition Assistance Program (SNAP, previously known as Food Stamps)
• Section 8 public housing
• Non-cash benefits that cannot be monetized
  • Medicaid (except for emergency medical conditions and benefits provided under the Individuals with Disabilities Education Act (IDEA) and benefits provided to foreign-born children of US citizen parents)
  • Premium and Cost Sharing Subsidies for Medicare Part D (the Medicare prescription drug benefit) and benefits provided for institutionalization for long-term care at government expense
  • Subsidized Housing under the Housing Act of 1937

(a) Types of Public Benefits

“Food, shelter and necessary medical treatment are basic necessities of life. A person who needs the public’s assistance to provide for these basic necessities is not self-sufficient.”

DHS is including all cash assistance programs as part of the public benefits definition. Regarding non-cash benefits, the universe of such benefits is very large, but DHS is proposing to incorporate only a limited list of non-cash benefits (see the list above).

DHS includes a table showing the average annual benefit per person for the various programs included on the list: Medicaid – $7426; SNAP – $1527; SSI – $6593; Federal Rental Assistance – $8121; Medicare Part D Low Income Subsidy – $2099; Children’s Health Insurance Program – $2324; TANF – $1272. DHS believes the data shows that these programs are accessed by a great number of people subject to the public charge requirement (20% of foreign-born receive non-cash benefits and 2-4% receive cash benefits – though the agency admits it cannot distinguish asylees and refugees in that number).

(b) Consideration of Monetizable and Non-Monetizable Public Benefits

“DHS notes…that for admissibility and adjustment of status purposes, the receipt of such benefits would be determined on a prospective basis, i.e. likely at any time to receive benefits above the proposed threshold(s).” For extension of stay and change of status applicants, the determination is based on whether an alien has received since obtaining nonimmigrant status or is likely at any time to receive benefits above the proposed threshold.”
Query – What does “likely” mean?

i.“Primarily Dependent” Standard and Its Limitations

15% of Federal Poverty Guidelines (“FPG”) is different than 1999 standard of being “primarily dependent” on public benefits (a person for whom the benefits are more than half of their income and support). DHS believes that 50% is too generous and a lot of people who are not self-sufficient are below that threshold. “DHS believes that receipt of such benefits even in a relatively small amount or for a relatively short duration would in many cases be sufficient to render a person a public charge.” DHS doesn’t believe the plain text of 212(a)(4) requires a 50% threshold.

ii.15% of Federal Poverty Guidelines Standard for Monetizable Benefits

Under the formula for an individual, 15% means up to $1821 worth of monetizable benefits can be excluded in a 12-month period. DHS defends 15% as the right amount to distinguish between self-sufficient and not (though they just assert this is true without offering any evidence to support). DHS is requesting comments on whether 15% is the right number and also whether receiving lesser amounts should weigh in a totality of the circumstances test.

iii. 12 Month Standard for Non-Monetizable Benefits

“In DHS’s view, individuals who receive the non-monetizable public benefits covered by this rule for more than 12 months are unable to meet their basic needs without government help.” Benefits are stacked. So, for example, if a person got Medicaid for 9 months and public housing for 6 months, if both occurred within the same 36-month period, it would amount to 15 months of non-monetizable benefits regardless of overlap. DHS seeks comment on this approach as well as alternatives.

iv. Combination of Monetizable Benefits under 15 of FPG and One or More Non-Monetizable Benefits

DHS believes reducing the 12-month timeframe by 3 months is “reasonable” and “easily administered.”

(c) Monetizable Public Benefits – This section lists and describes the covered benefits

i. Supplemental Security Income (SSI)
ii. Temporary Assistance for Needy Families (TANF)
iii. General Assistance Cash Benefits
iv. Supplemental Nutrition Assistance Program (SNAP)
v. Housing Programs

1. Section 8 Housing Choice Voucher Program
2. Section 7 Project-Based Rental Assistance

(d) Non-Monetizable Public Benefits

i. Medicaid

a. Description of Program
b. Exception for Certain Medicaid Services (see above) – notes that “emergency medical conditions” excluded including for emergency labor and delivery; states decide what is “emergency”
c. Exception for Receipt of Medicaid b Foreign-Born Children of US Citizens – applies often in adoption cases

ii. Institutionalization for Long-Term Care

Comment: This section seems particularly cruel.

Includes hospital services, Intermediate Care Facilities for People with Intellectual Disability, Nursing Facilities, Preadmission Screening & Resident Review, Inpatient Psychiatric Services for Individuals Under Age 21 and Services for Individuals Age 65 or Older in an Institution for Mental Diseases.

iii. Premium and Cost Sharing Subsidies under Medicare Part D
iv. Subsidized Public Housing

(e) Receipt of Public Benefits by Active Duty and Reserve Servicemembers and Their Families

DHS is proposing to exclude this population.

(f) Unenumerated Benefits

Only non-cash benefits listed in the rule count. Social Security retirement benefits, general Medicare and a wide range of Veteran’s benefits would not be included. Also doesn’t include worker’s compensation and non-cash benefits that provide education, child development and employment and training.

(g) Request for Comment Regarding the Children’s Health Insurance Program (CHIP) – DHS is considering adding to the list of included benefits. CHIP being considered and DHS is seeking comment.

(h) Request for Comment Regarding Public Benefit Receipt by Certain Alien Children

Basically, a child receiving public benefits is not necessarily a good indicator of future self-sufficiency. DHS wants comments on how to consider age.

(i) Request for Comment Regarding Potential Modifications by Public Benefit Granting Agencies

Agencies may choose to modify enrollment processes to warn immigrants about the consequences of accepting the benefits. DHS may decide on effective date depending on how long this process would take.

3. Likely at Any Time to Become a Public Charge

DHS defines to mean likely to receive public benefits in the future. DHS notes that receiving benefits by itself doesn’t mean an alien is likely to become a public charge. Depends on likelihood of future events.

4. Household

“DHS notes that while the number of children, including US citizen children, may count toward an alien’s household size for purposes of determining inadmissibility on the public charge ground, the direct receipt of public benefits by those children would not factor into the public charge inadmissibility determination.”

(a) Definition of Household in Public Charge Inadmissibility Context

If the alien is 21 or older, or under 21 and married, the household would include

• The alien
• The alien’s spouse, if physically residing with them
• The alien’s children physically residing with them
• The alien’s other children not physically residing with them if the alien is required to provide at least 50% of financial support
• Any other individuals to whom the alien provides or is required to provide at least 50% of the individual’s financial support; and
• Any individual who provides to the alien at least 50% of the alien’s financial support or who lists the alien as a dependent on his or her tax return

If the alien is a child, the alien’s household includes

• The alien
• The alien’s children physically residing with the alien
• The alien’s other children who are receiving child support
• The alien’s parents, legal guardians or others providing at least 50% of financial support to the alien
• The parents’ or legal guardians’ other children physically residing with the alien
• The parents’ or legal other children who are getting child support
• Any other individuals to whom the alien’s parents or legal guardians provide or are required to provide at least 50% financial support or who are listed as dependents on the parents’ or guardians’ tax return.

(b) Definitions of “Household” and Similar Concepts in other Public Benefits Contexts

DHS says its definition tracks HUD’s definition from 1937 Housing Act. Broader than IRS dependent definition.

(c) Definitions of Household and Similar Concepts in other Immigration Contexts

Uses same approach as affidavit of support. DHS is proposing to consider the affidavit of support in the totality of the circumstances when determining whether an alien is likely to become a public charge. But household in this rule doesn’t include or exclude the sponsor and the sponsor’s household.

 

C. Public Charge Inadmissibility Determination

DHS – The public charge inadmissibility determination is a prospective determination based on the totality of an alien’s circumstances at the time of adjudication. An affidavit of support may be deemed insufficient and the alien will be found inadmissible regardless of any other evidence submitted.

1. Absence of a Required Affidavit of Support

If it’s missing and it’s required, it’s an automatic denial.

2. Prospective Determination Based on Totality of Circumstances

DHS looks to whether the alien is likely to become a public charge and not whether the alien is currently a public charge. The past or current receipt of public benefits, alone, is insufficient to sustain a finding that an alien is likely to become a public charge in the future.

Query – Can a determination of becoming a future public charge be made if a person has never received public benefits? Whoa if true.

Totality of the circumstances includes an alien’s age; health; family status, assets, resources and financial status; and education and skills. The affidavit of support is also to be factored.

The statute requires more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact tending to show that the burden of supporting the alien is likely to be cast on on the public, must be present.

Note – This seems to confirm that regardless of whether public benefits have previously been received or whether the person has an affidavit of support, DHS can look at the person and deem them to be a high risk and deny them the immigration benefit.

D. Age

DHS proposed to consider age primarily in relation to employment or employability and secondarily to other factors as relevant to determining whether someone is likely to become public charge. Being between 18 and 61 is a positive factor and being under 18 or over 61 is a negative factor.

E. Health

An alien’s health is a factor that will be considered by DHS. The mere presence of a medical condition would not render an alien inadmissible. Rather, it will be evaluated in light of the effect that condition is likely to have on the alien’s ability to attend school or work. Having private health insurance or the financial resources to pay the costs would be considered. “Long-term care health care expenses to treat such a medical condition could decrease an individual’s available financial resources.”

1. USCIS Evidentiary Requirements

• Any required Report of Medical Examination (I-693) or applicable DOS medical exam form; or
• Evidence of a medical condition that is likely to require extensive medical treatment

Consulates and CBP may require medical exams to determine medical inadmissibility of nonimmigrants.

DHS would also consider other medical records such as a licensed doctor’s attestation of prognosis and treatment of medical condition.

2. Potential Effects for Aliens with a Disability, Depending on Individual Circumstances

DHS will consider accepting an I-693 in any case.

DHS says this rule doesn’t violate the ADA by discriminating against people with disabilities. Seems like a problem, however, as it is definitely a factor in a public charge determination.

F. Family Status

Does the alien have a household to support? Does the size make the alien more or less likely to become a public charge?

G. Assets, Resources, and Financial Status

The 1999 guidance looked to the affidavit of support. But DHS argues that that’s a separate requirement and they’ll look at more than that for this factor. The alien will need to present independent evidence of assets and resources. Alien’s own assets an resources are factored in and not just the affidavit of support sponsor. DHS will use the 125% of FPG to be the line to determine if household income is a positive or negative factor.

An alien’s financial status would also include the alien’s liabilities as evidenced by the alien’s credit report and score, as well as whether the alien has in the past, or is currently, receiving public benefits, among other considerations. [Undoubtedly controversial]

1. Evidence of Assets and Resources

• Alien’s gross household income, excluding income from public benefits
• Any additional income from individuals not included in the alien’s household who physically reside with the alien and whose income will be relied on
• Any additional income to the alien from another person or source
• The household’s cash assets and resources, including as reflected in checking and savings account statement in the last 12 months;
• The household’s non-cash assets and resources that can be converted to cash within 12 months

2. Evidence of Financial Status

DHS will review whether the alien has any financial liabilities or past reliance on public benefits and will look at the following evidence –

• If the alien has applied for or received any public benefit on or after the effective date of the final rule
• If the person has been certified or approved to receive public benefits on or after the effective date of the final rule
• If the alien has applied for or received a fee waiver for immigration benefits after the effective date of the final rule (i.e. that benefit becomes a trap)
• Credit histories and credit scores
• Whether the alien has private health insurance or the financial resources to pay for medical costs associated with a medical condition described in 212.22(b)(2).

(a) Public Benefits

Current or past application for public benefits is a negative factor. So it appears to look backwards and not just from the effective date of the rule. However, being certified or approved to receive public benefits on or after the effective date is to be considered and not being certified or approved in the past. [Not sure what the point of the distinction is]

(b) Fee Waivers for Immigration Benefits

USCIS would consider past receipt of a fee waiver as part of the financial status factor. Fee exemptions are not a factor, however.

(c) Credit Report and Score

DHS considers the information in credit reports to be useful in determining whether a person’s financial status is weak. Because many immigrants do not have credit reports or scores, USCIS will not view negatively the lack of one.

(d) Financial Means to Pay for Medical Costs

Lacking private health insurance is a negative factor. Obamacare is no longer in the proposed rule so having health insurance obtained on the exchange and receiving subsidies is apparently a non-factor.

I. Education and Skills

“An applicant’s education and skills are mandatory statutory factors that must be considered when determining whether an alien is likely to become a public charge in the future.” DHS presents a number of charts to show people with less education more likely to accept public benefits. English language skills a factor as well as being proficient in additional languages.

1. USCIS Evidentiary Requirements

• Alien’s recent history of employment
• Alien’s academic degree or certifications including a high school degree (or equivalent) or higher
• Alien’s occupational skills, certifications, or licenses; and
• The alien’s proficiency in English or proficiencies in additional languages

J. Prospective Immigration Status and Expected Period of Admission

The length of the trip to the US and the type of visa category would be a factor considered.

DHS will consider that an applicant for a green card may be eligible for benefits FIVE years after arrival and visa that as a factor. People coming as visitors wouldn’t have as much of a burden.

 

K. Affidavit of Support

Failure to provide a required affidavit of support is an automatic ground to deny. But it is only to be included in a determination of the totality of the circumstances and is not alone evidence on public charge.

1. General Consideration of Sponsorship and Affidavits of Support

DHS would consider a facially valid affidavit of support a positive factor. “DHS has concerns about relying on sponsors to ensure that aliens will not become a public charge.”

2. Proposal to Consider Required Affidavits of Support

“When determining the weigh to give an affidavit of support in the totality of the circumstances, USCIS would assess the sponsor’s annual income, assets, resources, and financial status, relationship to applicants, the likelihood that the sponsor would actually provide financial support to the alien and any other considerations.” DHS will also look at whether the sponsor has submitted affidavits of support for other individuals.

USCIS may interview sponsors of affidavits of support if they have concerns.

L. Heavily Weighed Factors

1. Heavily Weighed Negative Factors

(a) Lack of employability

As long as an alien is not a full-time student and is authorized to work, DHS proposes that the absence of current employment, employment history, or reasonable prospect of future employment will be a heavily weighed negative factor. DHS recognizes that not everyone authorized needs to work and will look at other factors including a household member’s income.

(b) Current Receipt of One or More Public Benefits

DHS will view current receipt of public benefits as a strong indicator that an alien is likely to become a public charge.

(c) Receipt of Public Benefits within 36 Months of Filing Application

If an alien received public benefits within three years of filing an application, that’s a heavy negative factor. DHS is looking for comments on the time range.

(d) Financial Means to Pay for Medical Costs

Lacking private health insurance or lots of money is a heavily weighted negative factor. Note that prior language barring accessing the Obamacare exchanges/subsidies has been removed from the proposed rule.

(e) Alien Previously Found Inadmissible or Deportable Based on Public Charge

2. Heavily Weighed Positive Factors

• Generally, includes significant income, assets and resources

 

(f) Previously Excluded Benefits

DHS won’t consider public benefits that were previously excluded under the 1999 guidance if received before the effective date of the final rule. But cash benefits previously received that were covered by the 1999 guidance will be considered a negative factor in the totality of the circumstances analysis but not a heavily weighed negative factor.

M. Summary of Review of Factors in the Totality of the Circumstances

USCIS includes a chart that resembles a point system outlining the various factors and considerations.

N. Valuation of Monetizable Benefits

For benefits provided on the basis of a household and not an individual, USCIS will only take into consideration the portion of the benefit that is attributable to the alien. Where the alien is not eligible for the benefit but is part of a household that receives the benefit (because another member of the household is eligible), USCIS would not consider such use for purpose of a public charge inadmissibility determination.

O. Public Charge Bond for Adjustment of Status Applicants

DHS has broad authority to prescribe forms of bonds and may allow them for people who are deemed inadmissible on public charge grounds.

1. Overview of Immigration Bonds Generally

Immigration bonds may be secured by cash or cash equivalents or may be underwritten by a surety company certified by the Department of Treasury.

2. Overview of Public Charge Bonds

(a) Public Charge Bonds

They are intended to hold the US harmless against an alien becoming a public charge. If an alien admitted after submitting a public charge bond becomes a public charge, the bond is breached regardless of whether a demand for payment of the public expense has been made.

(b) Current and Past Public Charge Bond Procedures

DHS notes that the regulations already provide for public charge bonds. But DHS has rarely used them since the passage of IIRIRA in 1996 when affidavits of support came in to use. USCIS has no current process in place to accept public charge bonds. Under the previous system, INS would set an amount and would normally cancel the bond after five years. If someone breached, the obligor was required to pay the actual expenses to the INS within 30 days. Late payments would be required after that.

(c) Relationship of the Public Charge Bond to the Affidavit of Support

The two are distinct, but complementary. One is a contract between the US and the sponsor and the other is a contract between the US and the individual or company who pledges a sum of money to guarantee conditions set by the government concerning the alien.

(d) Summary of Proposed Changes

The proposed rule clarifies when an alien seeking adjustment of status will be permitted to post a public charge bond. The minimum bond amount will be $10,000 and adjusted annually for inflation.  DHS will explain the circumstances under which the bond will be cancelled and how it is breached. DHS will also set processing fees for a new Form I-945 to submit a bond and Form I-356 to request cancellation of a bond. The fees for both will initially be $25. The process to accept and process public charge bonds will be provided on the effective date of the final rule [not sure that is compliant with the APA].

3. Permission to Post a Public Charge Bond

When USCIS determines that an alien is inadmissible on public charge grounds, it may notify the alien of the possibility to submit a bond and USCIS will specify the bond amount and bond conditions. Applicants can only submit bonds if USCIS has approved first. Bonds are not generally warranted when an alien has heavily weighed negative factors, but may still be offered by a DHS officer.

4. Bond Amount and submission of a Public Charge Bond

$10,000 is the minimum (adjusted annually for inflation). DHS will consider the alien’s individual circumstances when determining the exact amount of the bond the alien is required to post.

There is no appeal of the amount of the bond required by an officer. USCIS will only initially allow for surety bonds. Only Treasury-certified sureties can issue bonds. These sureties have agents throughout the US from whom aliens can seek assistance in procuring an appropriate bond. Only companies meeting specified corporate and financial standards can be certified by Treasury.

If the alien posts the required bond, USCIS will continue to adjudicate the adjustment of status application and will grant the application if all criteria are met. USCIS must ensure that the bond is maintained during the effective period of the bond. An obligor would need to notify DHS within 30 days of the change in the obligor’s or the alien’s physical and mailing address. If the bond request isn’t met or the bond doesn’t meet the amount and conditions set by USCIS, the application will be denied. DHS will issue a separate guidance addressing the submission of public charge bonds.

5. Public Charge Bond Substitution

If USCIS accepts a bond of limited duration, then a new bond must be substituted within 180 days before it expires. The substitute bond would need to meet all of the requirements applicable to the bond on file with USCIS.

6. Public Charge Bond Cancellation

(a) Conditions

A public charge bon must remain in effect until the alien naturalizes or otherwise obtains US citizenship, permanently departs the US, or dies, until the bond is submitted with another bon, or until the bond is otherwise cancelled by DHS. The alien may not accept public benefits while the bond is in effect and comply with any other conditions DHS sets.

(b) Definition of Permanent Departure

Means the alien has left the US on a lasting, non-temporary basis after losing lawful permanent resident status either voluntarily or involuntarily and is physically outside the US. For someone in removal, only once the person has a final order of removal is the person considered to have lost permanent residence and would be entitled to cancellation of the bond.

(c) Bond Cancellation for Lawful Permanent Resident After 5 Years and Cancellation if the Alien Obtains an Immigration Status Exempt From Public Charge Ground of Inadmissibility Following the Initial Grant of Lawful Permanent Resident Status

DHS will cancel bonds after the 5^th anniversary of adjustment of status provided the alien files a request to cancel the bond and the alien has not received any public benefits covered by the rule or otherwise violated the conditions of the bond. DHS will cancel the bond if a person obtains LPR in a category exempt from public charge grounds of inadmissibility (such as when a person loses or abandons permanent residence and regains it in a new category).

(d) Request to Cancel the Bond, and Adjudication of the Cancellation Request

An alien may request a bond be canceled and USCIS may cancel if the conditions of the bond have been met and the bond has not been breached. If it has, the returned amount will be reduced to the extent of the breach. Form I-356 will be used.

(e) Decision and Appeal

A bond obligor can appeal the denial to cancel the bond to the AAO.

7. Breach of a Public Charge Bond and Appeal

(a) Breach Conditions and Adjudication

A breach happens if the alien receives public benefits after the alien’s adjustment of status and until the bond is canceled. USCIS can request additional information from the obligor.

(b) Decision and Appeal

After the obligor responds or the deadline has passed, USCIS will make a breach determination, inform the obligor of the right to appeal.

(c) Consequences of Breach

If USCIS determines the bond has been breached, USCIS would collect on the bond in full.

8. Exhaustion of Administrative Remedies – outlines appeal process
9. Public Charge Bond Processing Fees

The fee for the bond processing is $25, $25 to transfer and $25 to request canceling the bond.

10. Other Technical Changes
11. Concurrent Surety Bond Rulemaking

VI. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs)

This EO requires agencies to assess the costs and benefits of available regulatory alternatives.

1. Summary – DHS gives an overview of the rule

DHS asserts that the benefits are getting a population of immigrants that is more self-sufficient and they are reducing the likelihood an alien will receive a covered public benefit in the future.

2. Background and Purpose of the Rule
3. Population – Adjustment of status applicants, applicants for extension of stay and change of nonimmigrant status

(a) Population Seeking Adjustment of Status – 5-year average number of adjustment of status applicants – 544,246

i. Exemptions from Determination of Inadmissibility Based on Public Charge Grounds

An average of 161,981 adjustment applicants per year are exempt from the public charge review

ii. Exemptions from the Requirement to Submit an Affidavit of Support

Over the last five years, about half of adjustment applicants were exempt from submitting an affidavit of support.

(b) Population Seeking Extension of Stay or Change of Status

Over the last five years, an average of 336,335 beneficiaries filed extension of stay or change of status applications. An average of 174,866 filed I-539s over the last five years.

4. Cost-Benefit Analysis

(a) Baseline Estimate of Current Costs – Current annual costs for the I-485, I-129 and I-539 processes are $1,040,053,529.

i. Determination of Inadmissibility Based on Public Charge Grounds

1. Form I-485, Adjustment of Status
2. Form I-693, Report of Medical Examination
3. Form I-912, Request for Fee Waiver
4. Affidavit of Support Forms

ii. Consideration of Receipt, or Likelihood of Receipt of Public Benefits Defined in Proposed 212.21(b) for Applicants Requesting Extension of Stay of Change of Status

1. Form I-120, Petition for a Nonimmigrant Worker
2. Form I-129CW
3. Form I-539, Application to Extend/Change Nonimmigrant status

(b) Costs of Proposed Regulatory Changes

The I-944 to show one won’t become a public charge would have the most new costs associated with it. New costs also associated with the I-129 and I-539 and with applying for a Public Charge Bond and cancellation of the bond. The I-944 annual costs would be 25,963,371. The I-129 would be from $12 million to $66 million. The I-539 would be from $6 million to $34 million. The total cost would be $45 million to $129 million per year.

i. Form I-944, Declaration of Self-Sufficiency and Form I-485 – DHS estimates the time will be 4 hours 30 minutes on average to complete the I-944. Ten additional minutes will be required for the I-485
ii. Extension of Stay/Change of Status using Form I-129 – would increase 30 minutes per form
iii. Public Charge Bond

(c) Transfer Payments and Indirect Impacts of Proposed Regulatory Changes

Public benefits recipients who are members of households including foreign-born non-citizens:

• Medicaid – 5,685,422
• Low Income Subsidy for Medicare Part D – 1,070,185
• SNAP – 5,182,508
• TANF – 305,058
• SSI – 734,303
• Federal Rental Assistance – N/A

Estimated population of people who may disenroll or forego enrollment in a public benefits program

Medicaid – 142,136
LIS for Medicare Part D – 26,755
SNAP – 129,563
TANF – 7,626
SSI – 18,358
Federal Rental Assistance – 8,801

Potential follow-on effects of the reduction in transfer payments from the rule

• Worse health outcomes, including increased prevalence of obesity and malnutrition, especially for pregnant or breastfeeding women, infants, or children and reduced prescription adherence
• Increased use of emergency rooms and emergent care as a primary health care method
• Increased prevalence of communicable diseases, including among non-vaccinated members of the US citizen population
• Increases in uncompensated care
• Increased rates of poverty and housing instability; and
• Reduced productivity and educational attainment

(d) Discounted Direct Costs and Reduced Transfer Payments

i. Discounted Direct Costs
ii. Discounted Reduction in Transfer Payments

(e) Costs to the Federal Government

(f) Benefits of Proposed Regulatory Changes

The major benefit cited is preventing immigrants from receiving public benefits and forcing them to rely on family members, sponsors and private organizations.

The process will be eased for those using the I-864W as those questions will be incorporated into the I-485. Also, some immigrants who might be barred under the status quo on public charge grounds will have the option of posting a bond to avoid the bar.

B. Regulatory Flexibility Act – Measures the impact of the rule on small businesses

Initial Regulatory Flexibility Analysis

1. A description of the reasons why the action by the agency is being considered
2. A succinct statement of the objectives of, and legal basis for, the proposed rule.
3. A description and, where feasible, an estimate of the number of small entities to which the proposed changes would apply. – 336,335 annually affected by the extension/change of status provisions.
4. A description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for preparation of the report or record.
5. An identification of all relevant Federal rules, to the extent practical, that may duplicate, overlap, or conflict with the proposed rule.
6. Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that the minimize any significant economic impact of the proposed rule on small entities.

C. Congressional Review Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Executive Order 13175 Consultation and Coordination With Indian Tribal Governments

H. Family Assessment

I. National Environmental Policy Act

J. Paperwork Reduction Act

Regulatory text begins on p. 417

Part 103 – Immigration Benefits; Biometric Requirements; Availability of Records

103.6 Surety bonds. Allows DHS to approve a surety bond. Sets out process for public charge bonds and dealing with a breach of a bond.

103.7 – Fees – Sets the public charge bond form fee at $25 and the request for cancellation of public charge bond I-356 at $25;

Part 212 – Documentary Requirements: Nonimmigrants; Waivers; Admission of Certain Inadmissible Aliens; Parole

Section 212.20 – Applicability of public charge inadmissibility. – The public charge provisions of sections 212.20 to 212.24 below cover all people who not exempt from INA Section 212(a)(4).

Section 212.21 Definition for Public Charge

(a) Public Charge means an aliens who receives one or more public benefits
(b) Public benefit means
(1) Any of the following monetizable benefits where the cumulative value of one or more benefits exceeds 15% of the Federal Poverty Guidelines (FPG) for a household of one within any period of 12 consecutive months.

(i) Any federal, state, local or tribal cash assistance for income maintenance including:

(A) SSI
(B) TANF
(C) General Assistance cash benefit programs

(ii) Non-cash benefits

(A) SNAP
(B) Section 8 Housing Assistance
(C) Section 8 Project-Based Rental Assistance

(2) Any of one or more of the following non-monetizable benefits if received for more than 12 months in the aggregate within a 36-month period:

(i) Medicaid, except for:
(A) Benefits paid for emergency medical condition
(B) Services or benefits funded by Medicaid but provided under IDEA
(C) School-based benefits to children
(D) Medicaid benefits received by children of US citizens
(E) Medicaid benefits received by children attending an interview under the Child Citizenship Act of 2000

(ii) Any benefit provided for institutionalization for long-term care at government expense;

(iii) Premium and Cost Sharing Subsidies for Medicare Part D

(iv) Subsidized Housing under the Housing Act of 1937

(3) when there’s a combination of monetizable benefits equal to or less than 15% of FPG and non-monetizable benefits, the test will be if non-monetizable benefits are received for more than 9 months in the aggregate within a 36-month period.

(4) DHS won’t consider benefits received while someone is serving in the US Armed Forces.

(c) Likely at any time to become a public charge – likely at any time in the future to receive one or more public benefits.

(d) Alien’s household – (i) If the alien is 21 or over, or under 21 and married, the household includes

(A) The alien
(B) The alien’s spouse, in physically residing with the alien
(C) The alien’s children physically residing with the alien
(D) The alien’s other children not physically residing if there is a child support obligation
(E) Any other individuals to whom the alien provides 50%+ of the individual’s financial support or who are listed as dependents on the alien’s federal tax return
(F) Any individual who provides to the alien at least 50% of the alien’s financial support
(ii) If the alien is a child, the alien’s household includes the following:

 

(A) The alien
(B) The alien’s children physically residing with the alien
(C) The alien’s other children not physically residing if there is a child support obligation
(D) The alien’s parents, legal guardians, or any other individual providing or required to provide at least 50% support to the alien
(E) The parents’ or legal guardians’ other children physically residing with them
(F) The parents’ or legal guardians’ other children not residing with them if they’re paying child support
(G) Any other individuals to whom the alien’s parents or guardians provide at least 50% of the person’s financial support or who are listed on the parent/guardian tax return as a dependent

Section 212.22 Public Charge Inadmissibility Determination

(a) Prospective determination based on the totality of circumstances
(b) Minimum factors to consider
(1) The alien’s age. –
(i) Standard – whether the age makes the alien more or less likely becoming a public charge such as by impacting the alien’s ability to work
(ii) [RESERVED]
(2) The alien’s health
(i) Standard – Whether the alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for himself, to attend school, or to work upon admission or adjustment of status
(ii) Evidence –
(A) An immigration medical exam
(B) Evidence of a medical condition that is likely to require extensive medical treatment or institutionalization after arrival
(3) The alien’s family status
(i) Standard -whether the household size makes the alien more or less likely to become a public charge
(ii) [RESERVED]
(4) The alien’s assets, resources and financial status
(i) Standard -DHS will consider whether
(A) The alien’s household gross income is at least 125% of the most recent Federal Poverty Guidelines
(B) The alien has sufficient assets and resources to cover any reasonably foreseeable medical costs
(C) The alien has any financial liabilities or past receipt of public benefits
(ii) Evidence
(A) Alien’s annual gross income excluding public benefits
(B) Additional income from individuals not in the household who reside with the alien
(C) Additional income from individuals not in the household on a continuing monthly or yearly basis
(D) Cash assets and resources
(E) Non-cash assets and resources that can be converted into cash within 12 months
(F) Whether the alien as (i) applied for any public benefit 60 days after the publication of the final rule or (ii) been certified or approved to receive public benefits on or after 60 days after the publication of the final rule
(G) Whether the alien has applied for or received an immigrant benefit request fee waiver on or after 60 days after the publication of the final rule
(H) The alien’s credit history and credit score; and
(I) Whether the alien has private health insurance or financial resources to pay for reasonably foreseeable medical costs
(5) The alien’s education and skills
(i) Standard – DHS will consider whether the alien has adequate education and skills to either obtain or maintain employment sufficient to avoid becoming a public charge
(ii) Evidence
(A) alien’s history of employment
(B) high school degree or higher
(C) occupational skills, certifications, or licenses;
(D) whether the alien is proficient in English or proficient in languages in addition to English
(6) The alien’s prospective immigration status and expected period of admission
(i) Standard – factors include whether it’s a nonimmigrant or immigrant classification and the duration of the stay
(7) An affidavit of support
(c) Heavily weighed factors
(1) Heavily weighed negative factors
(i) being unemployed
(ii) currently receiving a listed public benefit
(iii) received a benefit within the36 months immediately preceding a visa application
(iv) diagnosed with a medical condition interfering with the ability to attend school or work
(v) previously found inadmissible or deportable on public charge grounds

(2) Heavily weighed positive factors

(i) assets, resources and support of at least 250% of FPG
(ii) authorized to work and with an income of at least 250% of FPG
(d) Benefits received before 60 days from the date of the final rule – it’s a negative factor

Section 212.23 – Exemptions and waivers for public charge ground of inadmissibility

(a) Exemptions
(1) Refugees
(2) Asylees
(3) Amerasian immigrants
(4) Afghan/Iraqi Interpreters
(5) Cuban/Haitian entrants under the 1986 Immigration Act
(6) Aliens applying to adjust under the Cuban Adjustment Act
(7) NACARA applicants
(8) Haitians under HRIFA
(9) Lautenberg parolees
(10) Special immigrant juveniles
(11) Registry applicants
(12) TPS
(13) A-1/A-2 diplomats
(14) C-2/C-3 nonimmigrants
(15) G-1-4 nonimmigrants
(16) NATO nonimmigrants
(17) T nonimmigrants
(18) U nonimmigrants
(19) U adjustments
(20) VAWA
(21) Alien described in section 431(c) of the Welfare Reform Act of 1996
(22) Widows
(23) American Indians born in Canada
(24) Texas Band of Kickapoo Indians
(25) Vietnam, Cambodia, and Laos nationals applying under PL 106-429
(26) Polish and Hungarian Parolees
(27) Any other categories exempt from the public charge of inadmissibility

(b) Waivers available to
(1) T nonimmigrants
(2) S nonimmigrants
(3) S nonimmigrants applying to adjust
(4) any other waivers authorized under law

Section 212.24 Valuation of monetizable benefits

Benefits divided and apportioned in proportion to the size of the household.

 

Part 213 – Public Charge Bonds

Section 213.1 Adjustment of status of aliens on submission of a public charge bond

(a) Inadmissible aliens – if a person is found inadmissible on public charge grounds, DHS may allow the alien to submit a public charge bond.

(b) Public Charge Bonds. (1) Types. DHS may require an alien to submit a surety bond, or cash or any cash equivalent. DHS will notify the alien of the type of bond that may be submitted. Must be executed on a form designated by DHS.

(2) Amount. $10,000 minimum and annual inflation adjustments.

(d) Conditions of the bond. Bond remains in effect until the alien naturalizes, departs US, dies, requests cancellation after 5 years of being an LPR, the alien changes immigration status to one not subject to public charge ground of inadmissibility and the bond is cancelled.

(e) Submission – DHS must notify the alien that a bond may be submitted and it must be submitted in accordance with the form designated by DHS; DHS will specify the amount and duration

(f) Substitution – Must substitute in a new bond before the expiration of the validity of the submitted bond.

(g) Cancellation of the Public Charge Bond

(2) Permanent Departure Defined.

(3) Cancellation Request – outlines the process for having the bond cancelled

(4) Adjudication and Burden of Proof

(5) Decision

(h) Breach
(1) Breach and Claim in Favor of the United States
(2) Breach of Bond Conditions
(3) Adjudication
(4) Decision
(5) Demand for Payment
(6) Amount of Bond Breach and Effect on Bond
(i) Exhaustion of administrative remedies

Part 214 – Nonimmigrant Classes

Section 214.1 Requirements for admission, extension, and maintenance of status

Applicants for extension of status must demonstrate that he or she has not received a public benefit. Effective 60 days after rule is finalized. DHS may require the submission of a Form I-944.

 

Part 245 – Adjustment of Status

Section 245.4 – Adjustment applicants must submit a Form I-944

Part 248 – Change of Nonimmigrant Classification

 

Section 248.1 Eligibility

Applicants for change of status must demonstrate that he or she has not received a public benefit. Effective 60 days after rule is finalized. DHS may require the submission of a Form I-944.

***

Siskind Summary – Top Takeaways from the Proposed Public Charge Rule

1. This is a proposed rule and there are 60 days to comment from the day the rule is published in the Federal Register. The rule had not been published in the Federal Register as of September 25, 2018, but is expected imminently. The text is available on the Department of Homeland Security website at https://www.dhs.gov/news/2018/09/22/dhs-announces-new-proposed-immigration-rule-enforce-long-standing-law-promotes-self .
2. The costs are enormous. According to DHS, the ten year direct costs associated with the new regulation will be as high as $1.3 billion.
3. DHS is promoting the concept of “self-sufficiency” as the overarching purpose of the rule. It defines that to be when people “do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor and private organizations.”
4. The rule is prospective. DHS will look to whether a person is likely to become a public charge in the future. It will examine evidence of a person’s past and present circumstances when making the determination.
5. DHS has created a complicated system to determine whether people will become a public charge. It looks at two sets of factors – the minimum factors and the “heavily weighed factors.”
6. The rule pays particular attention to whether a person has received public benefits and receiving benefits in the recent past will be a negative heavily weighed factor. Unlike the current policy of the government, DHS looks expansively at what is a public benefit and considers more than just direct cash payments. Receiving Medicaid and housing assistance, for example, will be viewed highly negatively. One change from the earlier drafts of this rule is the exclusion of receiving a subsidy on the Affordable Care Act exchanges.
7. For benefits that can be monetized, they are counted as receiving a public benefit if they exceed 15% of the Federal Poverty Guidelines. For those that can’t (like housing benefits), the public charge issue is triggered if one receives the benefits for more than 12 months in the aggregate within a 36 month period.
8. The rule considers the following to be public benefits:
   1. Any cash assistance for income maintenance
   2. SNAP
   3. Section 8 housing
   4. Medicaid
   5. Subsidies for Medicare Part D (prescription drugs)
   6. Subsidized Housing under the Housing Act of 1937
9. The Children’s Health Insurance Program (CHIP) was not included but DHS has indicated they are considering including it in the final rule and has requested comments.
10. The 15% cash assistance trigger is considerably stricter than the current guidelines which considers 50% the amount where one is considered a public charge.
11. The basic factors considered in determining whether a person is likely to charge are
    1. Age
    2. Health
    3. Family status
    4. Assets, resources and financial status
    5. Education and skills
    6. An affidavit of support submitted by the alien’s sponsor
12. The factors are, in effect, a point system which is something the Administration has been urging Congress to pass. Of course, this is a regulation and not legislation so it is likely be attacked as being beyond the Administration’s authority.
13. Some of these factors will be considered controversial. For example, examiners are told that people under 18 and over 61 are to be treated more harshly than those in the middle. Disabilities and chronic health conditions are serious negative factors.
14. DHS will also be pulling credit reports and credit scores as evidence of financial status. This is the first time the agency has ever done anything of this sort.
15. There’s a backdoor English language requirement. Failure to be proficient in English is considered a negative factor.
16. Affidavits of support are still required (they’re in the statute), but DHS states that they are not given nearly as much credit as in the past.
17. The heavily weighed negative factors are
    1. Lack of employability
    2. Current receipt of a public benefit or receiving one within the last 36 months
    3. Financial means to pay for medical costs
    4. Previous findings of being a public charge
18. Heavily weighed positive factors are related to income. Basically, if you’re over 250% of the Federal Poverty Guidelines, you should not be scrutinized.
19. The proposed rule revives the use of public charge bonds. People who fail to satisfy an examiner that they won’t become a public charge may be given the opportunity to post a bond to show they won’t become a public charge. DHS will set the amount in each case and it will not be less than $10,000 (with inflation adjustments annually).
20. The rule applies to adjustment of status permanent residency cases and nonimmigrant extensions and changes of status. The rule does not apply to consular cases because that’s under the control of the Department of State.
21. Not every category is subject to the rule. For example, refugees and asylees are exempt as are certain nonimmigrant categories like U and T visa holders. But most family and employment-based categories as well as nonimmigrant categories are subject to the new rule.
22. The rule comes with several new forms. An I-944 is a supplemental form used to determine if one is a public charge. An I-945 is an application associated with the new public charge bond. An I-356 is an application to cancel a bond

 

Siskind Summary – The Texas DACA Preliminary Injunction Ruling, August 31, 2018

1 – This is a summary of the DACA order today that came down from Judge Hanen in the US District Court for the Southern District of Texas. Judge Hanen was the same judge who ruled against the DAPA program in 2016.

2 – It’s pretty clear that the judge largely bought the plaintiffs overall arguments regarding the legality of DACA. And he suggested they would likely win at trial in his courtroom. But they didn’t meet the test for a preliminary injunction.

3- This is critical because it now means DACA will likely remain in place until the Supreme Court ultimately decides the issue. That could be another year or more away. Here’s the link to the case – https://www.scribd.com/document/387497934/DACA-PI-decision

4 – The plaintiffs in the case are TX, AL, AR, LA, NE, SC, WV, KS and the governors of MS and ME. They are arguing DACA is illegal because its creation and continued existence violates the Administrative Procedure Act (APA). Also argue that DACA violates the Take Care Clause of the Constitution.

5 – The Defendants are the US, the DHS Secretary, the Commissioner of CBP, the Deputy Director of ICE, the Director of USCIS and the Chief of the Border Patrol. 22 DACA recipients intervened as Defendants as well as the State of NJ (presumably based on expectation the Administration wouldn’t really try too hard).

6 – The Plaintiffs sought a preliminary injunction to stop the govt from issuing or renewing any DACA approvals. Plaintiffs also sought a declaratory judgment that DACA is contrary to the APA, the Take Care Clause which would also require the termination of the DACA program.

7 – The court noted that it previously ruled against expanding DACA with the DAPA program and that the Administration and the Plaintiffs reached an agreement regarding the dismissal of that case.

8 – The court noted it was not ruling on the benefit of the program or about what the Administration should do with respect to individuals who are in the program (such as deporting any of them).

9 – After reviewing the history of the DAPA case, the court noted that the Supreme Court never got to a ruling on the legality of the program because it was deadlocked and that the case was referred back to the district court. But that determination was still not made because the case was dismissed by agreement of the parties.

10 – The court notes that the DAPA plaintiffs understood DACA was to be dismantled as well under the dismissal agreement, but that this was thwarted by two injunctions from district courts in CA and NY. The DC case that would have allowed new DACA applicants prompted this new case.

11 – The Court denied the Defendant-Intervenors motion to dismiss based on the other courts addressing the program. The Court noted that those cases were based on the legality of the WH DACA rescission memo and this case is not. Also, this court was addressing the issue before the others (the 2016 DAPA/DACA expansion case).

12 – The court defends nationwide injunctions (including the ones in effect preserving DACA) noting that limiting an injunction to just a part of the country is almost impossible to administer.

13 – The court also notes it doesn’t need to defer to the other courts because it is not issuing an order that is contrary to the other orders (on page 16, this is the first suggestion by the judge the plaintiffs are in trouble).

14 – The court notes that DACA has problems for the same reason DAPA/expanded DACA did – namely, that there was no compliance with the APA notice-and-comment requirements and that this was affirmed by the 5^th Circuit.

15 – The court found in favor of the plaintiffs that there was unquestionably a case or controversy. Also, the court ruled the plaintiffs had standing based on the same reasoning as the DAPA case. The court agreed with TX’s claim that DACA injures Texans because recipients compete for jobs. The court bought this.

16 – The plaintiffs also argued that they have standing because they incur costs for providing DACA recipients with healthcare, education and law enforcement services. The court was satisfied with this argument.

17 – Next the court turned to whether DACA is reviewable under the Administrative Procedure Act. The issue in contention was whether DACA constituted “an agency action … committed to agency discretion by law.” The court held that DACA is reviewable under the APA for the same reason DAPA was.

18 – The court then turned to the main event – the preliminary injunction. 4 factors – 1) substantial likelihood that plaintiffs will prevail on merits; 2) substantial threat of suffering irreparable injury; 3) injury outweighs the harm to the party they seek to enjoin; and 4) granting injunction won’t disserve the public interest.

19 – Factor 1 – likelihood of success on the merits. The court passed on whether DACA violates the Take Care Clause of the Constitution. Why? Because the clause can be read to support or oppose DACA and the court can rule on this issue without considering this issue. And law is really unclear in this area.

20 – Factor 1 (cont.) – the court then turns to the APA claim. The court decided that the Chevron test – that the statute is ambiguous and an agency’s interpretation is reasonable – is met for the same reasons decided in the DAPA case. The INA makes DACA recipients removable and DACA prevents that. Cites to 5^th Circuit DAPA decision.

21 – Factor 1 (cont.) – The court held that the US Code describes ways people can get lawful presence and employment authorization and it doesn’t include DACA (or DAPA previously). And it held the advance parole benefit helps DACA recipients unlawfully avoid the 3/10 year bars and seek to adjust status to a green card.

22 – Factor 1 (cont.) – Even if Chevron pt. 1 met, pt. 2 is not. If there is an unsettled question for an agency, is the agency’s answer a permissible construction of the statute? “DACA is ‘manifestly contrary’ to the statutory scheme promulgated by Congress. And DAPA and DACA aren’t so different that it makes a difference. The court also has big problems with the concept of deferred action.

23 – Factor 1 (cont.) The court also held that DACA is not a procedural rule and is not a general policy statement and, thus subject to the APA. Bottom line – the court found plaintiffs made a clear showing they are likely to succeed on the merits at trial.

24 – Factor 2 – likelihood of substantial and immediate injury if the injunction isn’t granted; speculative injuries aren’t enough; the plaintiffs argue they’re paying millions of dollars for uncompensated benefits and law enforcement/educational costs and cost legal residents job opportunities.

25 – Factor 2 (cont.) – The court seemed more open to arguments from the DACA defendants and NJ regarding the net economic benefit of DACA and noted that just because this wasn’t relevant for standing, it might matter for the preliminary injunction. Nevertheless, the court found irreparable injury.

26 – Factor 2 (cont.) – The court then addressed a key issue; whether the plaintiffs waited too long to bring this action. They’ve had since June of 2012. The court noted that while the statute of limitations isn’t up, delay is a factor in deciding if a preliminary injunction is appropriate and plaintiffs failed here.

27 – Factors 3 & 4 – What is the effect on each party of granting or withholding the requested relief? And what are the policy considerations? Here, the court notes the difference between DAPA and DACA. DAPA hadn’t taken effect. DACA has been around for 6 years. Significant hardships to DACA recipients demonstrated.

28 – Factors 3 & 4 (cont.) – Texas’ harms would still be occurring without DACA. The costs won’t change significantly.

29 – Court: “One cannot put the toothpaste back in the tube” and “one cannot unscramble the egg.” With DAPA, no one had gotten a benefit yet. Not true with DACA.

30 Finally, the court noted that while the plaintiffs may ultimately win when the case finishes in the courts, this is an issue “crying out for a legislative solution.”

***

US Customs and Border Protection Releases Apprehensions at the Southwest Border for Fiscal Year 2018

United States Customs and Border Protection (CBP) released its list of apprehensions along the Southwest border during Fiscal Year 2018, spanning from October 1, 2017 to August 31, 2018. According to the report, the overall number of apprehended unaccompanied minors increased by 19 percent when compared to the Fiscal Year 2017 total, from 38,474 to 45,704. Of these unaccompanied minor apprehensions, the country of origin which saw the most dramatic increase was Guatemala, increasing from 14,827 apprehensions in FY 2017 to 20,701 in fiscal Year 2018. Meanwhile apprehensions of unaccompanied minors from El Salvador decreased from 9,143 in Fiscal Year 2017 to 4,371 in FY 2018.

Family unit apprehensions at the Southwest border also increased from 71,431 apprehensions in 2017 to 90,563 in 2018, a difference of 27 percent. Similar to the figures of unaccompanied minors, family unit apprehension increased most with those whose country of origin was Guatemala, raising from 24,657 apprehensions in FY 2017 to 42,757 apprehensions in FY 2018. Also, El Salvador saw the greatest decline in apprehensions, accounting for 24,122 apprehensions in Fiscal Year 2017, compared to 11,525 family unit apprehensions in Fiscal Year 2018.

For more information, view the CBP announcement.

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