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Key questions and answers about the administration’s new public charge rule

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Yesterday the Trump administration issued a new rule that defines and effectively expands the concept “public benefits” used in making “public charge” determinations.  Public charge refers to an individual who is “primarily dependent on the government for subsistence,” as demonstrated by receipt of certain public assistance programs. Expanding the list of public benefits whose collection can constitute a public charge determination is expected to discourage benefit collection by noncitizens already in the US, although law suits are expected to be filed against the administration’s proposed rule.

The following are key questions and answers about the new rule.

U.S. President Donald Trump. REUTERS/Aaron P. Bernstein

Question: Why is the administration taking this step?

Answer: Current law does not define the term “public charge,” an essential concept to determining which legal noncitizens are allowed to enter or remain in the U.S.  As a result, many current noncitizens have collected major means-tested benefits (i.e. those not currently counted in determining public charge status) without that fact affecting their immigration status.  The administration believes this undermines the longstanding focus of immigration law on promoting self-sufficiency: “DHS does not believe that it is sound policy to ignore the longstanding self-sufficiency goals set forth by Congress or to admit or grant adjustment of status applications of aliens who are likely to receive public benefits designated in this rule to meet their basic living needs.”

Question: Is the underlying “public charge” policy new?

Answer:  No.  As noted in the rule, Congress “has maintained the public charge ground of inadmissibility in law since 1882.”

Question: How does this change the definition of means-tested benefits whose collection means someone is a “public charge”?

Answer: In short, the rule adds more benefits to the list of “public benefits” whose collection can result in a noncitizen’s being a “public charge.”  Specifically, the rule would start counting “an alien’s reliance on or receipt of non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), or food stamps; Medicaid; and housing vouchers and other housing subsidies.”  Food stamps and Medicaid especially have been among the fastest growing federal benefits for people with low incomes. The rule includes details about the length of time and amount of benefits collected that would trigger someone being a public charge.

Question: What are some of the most likely effects of this change?

Answer: The effects are likely to include: (1) Some noncitizens who currently collect benefits like food stamps and Medicaid opting to no longer collect those to avoid being deemed a public charge; (2) more current noncitizens applying to become citizens (thereby assuring future benefit eligibility regardless of these changes); and (3) some narrowing of the eligibility of future noncitizens applying to enter the US.  The administration notes the “primary benefit” is to “better ensure that aliens who are admitted to the United States, seek extension of stay or change of status, or apply for adjustment of status will be self-sufficient, i.e., will rely on their own financial resources, as well as the financial resources of the family, sponsors, and private organizations.”

Question: Will all means-tested benefits be counted in determining whether someone is a “public charge”?

Answer: No. The rule discusses how key benefits like the EITC and other tax credits as well CHIP benefits will not be considered “public benefits” for this purpose, including because “many people with moderate” and even high incomes are eligible for them.  Also, the changes generally apply to federal benefits, as “DHS excluded state, local, and tribal non-cash benefits from consideration in the public charge inadmissibility determination because of the number of public benefits that exist and the administrative burden such a rule would have imposed.”

Question: Why make this change now?

Answer: The administration believes this policy will more effectively implement the intent of immigration law as crafted by Congress: “DHS believes that applicants for admission and adjustment of status who are subject to the public charge ground of inadmissibility should be self-sufficient and should not depend on the government to meet their needs, and DHS firmly believes that this was Congress’ intent…including as recently as 1996.”

Question: Who is not affected by this change?

Answer: The rule doesn’t apply to U.S. citizens “even if the U.S. citizen is related to an alien subject to the public charge ground of inadmissibility.”  Also, the rule “includes special provisions for how DHS will consider the receipt of public benefits, as defined in this rule, by certain members of the U.S. Armed Forces and their families; certain international adoptees; and receipt of Medicaid in certain contexts, especially by aliens under the age of 21, pregnant women” and others.  Finally, it doesn’t apply to key groups like refugees eligible to collect welfare benefits due to special circumstances: “The rule also does not apply to aliens whom Congress exempted from the public charge ground of inadmissibility (such as asylees, refugees, or other vulnerable populations listed as exempt in this final rule).”

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