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The Immigration and Naturalization Act (INA) already says that immigrants can't be a "public charge," meaning they aren't supposed to cost taxpayers money by relying on public benefit programs. If they are, or are likely to become, a public charge, immigrants are not eligible for visas or green cards.

Yet legal immigrants with little income are often eligible for some public assistance programs, such as welfare (TANF), food stamps (SNAP), public housing, Supplemental Security Income and Medicaid.

In the past, the "public charge" rule was interpreted to mean that immigrants would be ineligible for a new visa or green card if they were primarily reliant on government-sponsored cash income support or long-term care.

When evaluating new applications for visas or green cards, immigration officers also considered the affidavit of support submitted by the immigrant's sponsor. This affidavit was considered strong evidence against a finding that the immigrant is likely to become a public charge.

Under the new rule, which takes effect on October 15, immigration officers will consider whether the immigrant has received public benefits for over 12 months in any three-year period. The list of programs that will count against the immigrant will be expanded. And, immigration officers will also consider family size, credit rating and even whether the immigrant has ever applied for welfare or food stamps.

The new rule does not apply to:

  • People granted refugee or asylum status
  • Members of the military and their families
  • Certain victims of domestic violence
  • Certain trafficking victims
  • People with special immigrant juvenile status
  • People receiving Medicare Part D low-income subsidies
  • Pregnant women
  • People under 21 who are enrolled in Medicaid

In the Bay Area, San Francisco and Santa Clara County have already filed a federal lawsuit challenging the new rule. They argue that there are several problems with the rule. It is arbitrary and capricious, they contend, and violates existing federal law. It is an also an attempt to usurp Congress's rightful authority to set immigration policy.

Moreover, they argue that the new rule would cause needy immigrants to refrain from using public benefits. Indeed, there is evidence that people have already begun doing so in anticipation of the rule. Not only does that mean hardship for the immigrants, but it could also be more costly than the existing rule. This is because people in the programs are more likely to engage in preventative care instead of waiting for their health conditions to become an emergency.

If you are applying for a visa or green card and are concerned about the new public charge rule, contact Yew Immigration Law Group. We can evaluate your situation and help you make a strong argument that you will not be a public charge.

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