Trump Administration Proposes New Policies on Becoming a Lawful Permanent Resident
On September 22nd, 2018, the Department of Homeland Security ("DHS") announced that they would be proposing new policies which would affect immigrants seeking to become Lawful Permanent Residents. DHS indicated these rules would change the current regulations defining immigrants who would be "inadmissible" due to being a "public charge." Although these rules have not yet been made official, it is important to know how current immigration policy may change, and how they can affect you.
Understanding the Difference Between "Law" and "Policy"
Before reading the information below, please understand that there is a difference between law, and policy. In the United States, laws are passed by our legislature, meaning the Congress (Senators and Representatives). However, "Policy" is the regulations and rules that the Executive Branch (The President and his cabinet) pass in order to help federal agencies enforce the laws.
While there may be new policy changes proposed by President Trump, this does not change the current Immigration Law in any way, but it does change the way these laws are enforced, which can have an immense impact on many individuals.
What does "Inadmissible" Mean?
The term "Inadmissible" is a legal term. It can be attributed to immigrants who are found to have certain disqualifying factors, which can include: medical history, financial history, criminal history, and more. Being considered inadmissible can prohibit someone from applying for lawful permanent resident status.
What does "Public Charge" Mean?
"Public Charge" is another legal term that is used in determining whether an applicant seeking to become a lawful permanent resident is likely, at any time, to become primarily dependent on government support. In other words, if an immigration officer has reason to believe that you may rely primarily on government support, he can find you inadmissible, and deny your application.
The laws defining and affecting public charge can be found in the Immigration and Nationality Act ("INA") passed in 1965, The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRAIRA") passed in 1996, and the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") passed in 1996.
Although the Immigration and Nationality Act ("INA") provides no exact definition for who is a public charge, it does instructs immigration officers to consider factors such as age, health, assets, education, and family status.
What is the current policy regarding "Public Charge" and "Inadmissibility"?
Currently, immigration officers primarily rely on the Affidavit of Support in deciding whether an applicant for permanent residency is likely to be a public charge. The Affidavit of Support (Form I-864) is filled out by a "Sponsor" or an individual who agrees to enter into a lawfully binding contract, promising to financially support the intending applicant. This Affidavit, is meant to assure the immigration officer that the intending applicant would not become a public charge.
Although the law instructs that the government consider multiple factors in determining whether someone is a public charge (see above), the reality is that the Affidavit of Support resolves most issues that may arise, absent some extreme conditions, such as long term serious medical conditions. Moreover, if an applicant has a valid I-864, they can usually avoid an inadmissibility issues under the public charge law.
What is the Trump Administration proposing to change about the current policy?
The Trump Administration's proposed new rules seek to dramatically change the method and information used to decide whether an applicant should be considered a public charge. Listed below are some of the proposed changes found in the text released by DHS.
-Proposing a new definition of "public charge." ("One who receives "public benefits.")
- Proposing a new form filed by an applicant to self-report all financial history and use of any prior welfare programs ("I-944 Declaration of Self Sufficiency")
- Proposing that public charge rules apply to applicants looking to file applications for change of status and extension of status. ("Such as employment and educational visas")
- Proposing an expansion of the welfare programs that immigration officers may consider when deciding whether someone will be a public charge. (Past and current use of Medicaid, SNAP, Section 8 Housing, Low-Income subsidy for Medicare Part D.
- Proposing that use of any cash aid welfare programs, whether federal or state, can make an applicant inadmissible.
- Proposing a new definitions for the five factors in determining whether someone is a public charge ("Age, health, assets, education, family status")
- Proposing a "Public Charge Bond" that an applicant may pay to overcome inadmissibility. ("Minimum $10,000.00 bond, cash or surety by treasury certified agency.")
- Proposing an English Language Ability requirement for applicants seeking to become lawful permanent residents.
- Proposing new rules regarding the Affidavit of Support which would reduce the importance of the document. ("Proposing the immigration officer look at the likelihood that the sponsor will actually provide the required amount of financial support.")
Although none of these proposals are yet final, applicants need to be prepared for their impact if and when they do become official. Individuals looking to apply for permanent residency in the future need to be aware that the process of doing so will drastically change. It will no longer suffice to merely provide a valid I-864 Affidavit of Support, and applicants will need to be extremely careful in what information they provide in their applications, and how they present that information. Regardless of what exact policies will be implemented, the issue of public charge will become much more complex than it has ever been.
