Things are changing in regard to immigration and finances. The immigration law does not allow a person to immigrate or enter the US, even on a non-immigrant visa such as a tourist, student or r-ligious worker, if they will not be able to provide for themselves. This has always been true, but it is now becoming even more important.
There are two reasons for this requirement. The first reason, which related to most nonimmigrants, was the concern that if the visitor did not have enough money, they may try to work illegally while they are here. This has been the main issue in regard to most non-immigrants. It was not an issue for most immigrants because they are allowed to work. However, some immigrants, like r-ligious worker immigrants, may have had trouble in this regard if their missionary income was so low that there was a danger that they would need to pick up non-r-ligious work to pay their bills.
The other reason why finances have been important is the public charge issue. A person who entered the US and was unable to pay his bills could become a public charge. A public charge would be a person who depends on the government or society to support him. That is why both immigrants and non-immigrants are not supposed to be able to access welfare, especially cash assistance.
It was because of this public charge issue that the government developed the special Affidavit of Support for immigrants who come to the US through a family member. The family member has to fill out this Affidavit of Support to guarantee that the immigrant will not go on welfare. Other immigrants and long-term non-immigrants (like R-1 r-ligious workers or H-1b professionally workers) generally need to show that they have a job that will provide for their needs.
Well, up until now, these two financial issues have been important, but they were not overly strictly applied. Non-immigrants had to show that they had money to pay their way, but it was usually not overly difficult to show that. R-ligious workers often could get approval as long as they could show that they would be provided with room and food. Family-based immigrants needed to have the Affidavit of Support filled out, but as long as the sponsor met the basic minimum income level — 125% of the poverty level, there usually was no problem.
But it looks like things may be changing. President Trump has been putting much more emphasis on requiring immigrants and non-immigrants to show that they will not be a public charge. I expect that this could also result in more scrutiny regarding the first issue — whether or not a non-immigrant has enough money to pay his own way — because the basic financial questions are very similar. An alien who can’t pay his way may become a public charge unless he engages in illegal work.
Over the recent past, President Trump has issued three new rules regarding this public charge issue. One of them, regarding health insurance, is still effective (or will become effective in a week — on November 3). The other two are parallel rules (one for the USCIS here in the US and one for the consulates) regarding determining if a person will be a public charge. These two parallel rules are not yet effective. The USCIS rule is held up by the courts and the consulate rule was temporarily withdrawn while the courts decide what to do with the USCIS rule. Although these two rules have been held up, they may come into play soon — and even now the reasoning behind these two rules may be affecting how visas are being issued.
HEALTH INSURANCE FOR IMMIGRANTS APPLYING AT CONSULATES: This first rule is in regard to health insurance. By its terms, it only applies to immigrants (not visitors or students or R-1 r-ligious workers) who are applying at a consulate overseas — it does not apply to people who are applying for Adjustment of Status. In order to get an immigrant visa, you need to establish that you have health insurance or can get health insurance within 30 days or that you have enough money to pay for any reasonably foreseeable medical bills. This is probably not too difficult — most people coming on employment visas will get insurance from their future employers, and there are all types of insurance available for purchase. However, the difficulty is that insurance can be expensive. Fortunately, it appears that you can qualify as long as your health insurance covers the major expenses. That type of insurance is cheaper than the type of insurance that covers every little visit to the doctor in addition to all the major expenses. You cannot qualify using the Obamacare insurance with the tax subsidies.
This new Health Insurance rule does not apply to non-immigrants and it doesn’t apply to people who are getting their green cards through Adjustment of Status. However, your still need to keep this rule in mind. Remember that the word is going out to the consulates and to the USCIS officers that the applicant’s financial situation is very important. Even if this rule doesn’t officially apply to non-immigrants and Adjustment of Status interviews, it doesn’t mean that the people at the embassies and consulates and at Adjustment of Status interviews aren’t looking at a person’s financial status more carefully now. If you have the money to get insurance, you may want to get it and bring evidence at the interview in case the interviewer should start asking probing questions about your financial situation. They may not ask, but they may. They may not ask about health insurance, but they may. I have already seen this increased emphasis on the applicant’s financial status at a client’s non-immigrant R-1 visa interview.
THE PUBLIC CHARGE RULES:
As I stated above, these rules are not yet effective, and they may never be effective, but that doesn’t mean that you can ignore them. You should be aware of what they say in case they should become effective. And, just because they are held up now doesn’t mean that the consulates and USCIS won’t find ways of implementing some of the principles any way. As I stated, even before the Consulate Rule had not even been announced, I saw some of the principles of that new rule used to deny a visa.
The important thing to know is that these rules really don’t change much. That is why the fact that they are held up is sort of unimportant. What they do is establish an attitude. The consular officers and the USCIS Adjustment of Status officers have always had discretion to determine whether a person would be a public charge — they could be lenient or they could be demanding. In the past, the practice had generally been to be relaxed in how they applied the rules. Now the word is that they are to be demanding. The new rules are held up, but the word to be demanding has gone out to all the embassies and consulates and USCIS offices. If they deny someone now, they won’t say that they are following the new rules, they will just say that they are exercising their discretion (freedom to make their own decision).
The new rules emphasize that using welfare as an adult — Medicaid, cash assistance, food stamps, subsidized or public housing, or SSI (Cash assistance for disabled or older people) will be heavily weighted against you. This is a change in that non-cash benefits were not supposed to be weighted against you in the past— but I was never confident of that. A family that can’t provide for itself presents a weaker picture when the officer is assessing their ability to survive here in the US. Under the new rules, if you don’t have work experience it will be heavily weighted against you. If you don’t have insurance it will be heavily weighted against you. On the other hand, if you can show that your income is 250% of the poverty level it will be heavily weighted in favor of you. If you have health insurance (not including subsidized Obamacare insurance) it will be heavily weighted in your favor.
The Affidavit of Support (required only for family-based immigrants) under the new rules is clearly not sufficient on its own — and the officer is directed to determine how likely he thinks it is that the Sponsor will actually carry through on his promise. This is different from past practice, but the officers always had the authorization to not solely rely on what is written in the Affidavit of Support.
In short, aside from a stronger negative emphasis on welfare usage, the only real change is that the new order is to be more demanding and strict in the enforcement of the public charge rules. That new strictness can be implemented even while the official rules are held up.
That is why you need to be aware of these new rules — the insurance rule and the two rules which have been held up. You need to know that when you go to an interview, you need to be prepared for stricter standards in regard to the public charge rule and proving that you won’t need to work illegally or go on welfare. You need to know that any welfare usage could come back to be a major problem in the future. You need to be thinking of ways to make it clear that you will be able to earn enough money to provide for you and your family. Finally, I recommend having insurance if you can afford it. I don’t think that you should expect them to implement everything in the new rules — but you need to be thinking of ways to present a stronger picture of your financial health in case it should become necessary.
SO HOW WILL THIS AFFECT YOU?
1) For everyone — it may be that nothing will change, but here are my thoughts regarding what you should be prepared for:
a. Use of Welfare: It is still my advice that you avoid using welfare in all its forms. The statute and the interpretations are ambiguous. If you really need to use food stamps or Medicaid at the current time you will probably be fine. But if you can do without, it will be better for you as you go through your immigration processes.
b. Insurance: I think, regardless of your visa status — it will be better for you if you can have at least health insurance coverage for major injuries and illnesses.
c. General financial status: Although the standards have not officially changed, be prepared for more and closer scrutiny of your ability to pay your own way in the United States.
2) R-1 R-ligious workers:
a. The income standards so far have been very lax for R-1s. I have historically had no problem getting approval for R-1 workers who make less than the poverty level. This may continue — but it may not. I have already had one person recently get an R-1 visa denied for financial reasons, and I am certain that a year or so earlier, the approval would have been easily granted.
b. The upshot is that the stronger you can make the financial situation in your R-1 applications, the better.
c. Under the statute, room and food is sufficient as “compensation” for R-1 status — but it may not be enough for the consulates, and it is possible that even the USCIS may start to require proof that the total value of the “compensation” is over the poverty level or, perhaps, even over 125% of the poverty level.
3) Special Immigrant R-ligious Workers (R-ligious Worker Green Cards) (whether going through a consulate/embassy or an Applicant for Adjustment of Status):
a. The income standards so far have been very lax for Special Immigrant R-ligious Workers. I have historically had no problem getting Green Cards for workers who make less than the poverty level. This may continue — but it may not.
b. The upshot is that the stronger you can make the financial situation in your petitions, the better.
c. Under the statute, room and food is sufficient as “compensation” for a Green Card — but it may not be enough for the consulates, and it is possible that even the USCIS may start to require proof that the total value of the “compensation” is over 125% of the poverty level.
d. It is clear that applicants for R-ligious Worker Green Cards who are processing through a consulate or embassy will need to demonstrate that they have or will be able to get health insurance.
4) Family-based Immigrants (whether going through a consulate/embassy or an Applicant for Adjustment of Status):
a. The only thing that is clear is that, if you are processing through a consulate or embassy, you will need to either have health insurance or prove that you can obtain it.
b. However, I think that you need to be prepared for more inquiry regarding your ability to stay off welfare when you enter the US. Up until now, as long as you could get an Affidavit of Support where the income totaled 125% of the poverty level, that was enough. That possibly will remain true. However, now, I don’t think you can be completely confident with such an Affidavit of Support. If there is any way that you can get an Affidavit of Support from someone with a higher level of income, that will be preferable. This is especially important for missionaries who often have lower incomes and are not looking to get “regular” work here in the US.
c. If there is any way that you or your spouse can arrange to get a job offer in the US with enough income to provide for your family at 125% of the poverty level, you should try to do that before your interview at the embassy or for Adjustment of Status.
d. Remember, these recommendations (other than the health Insurance for people processing through a consulate or embassy) are just recommendations — it is not at all clear what standards will be applied — the prior easier standards or new “unofficial” but tougher standards.
Remember, these are all just recommendations. Officially, nothing has changed (other than the health insurance requirement). However, it is clear that there are new expectations that the immigration and consular officers should be vigilant to make sure that people will be able to provide for themselves when they come. So, whatever you can do to strengthen your position in that regard may be helpful.
I hope this is interesting and helpful. Remember that this is not legal advice. It is just a summary of certain aspects of immigration law which may or may not apply to your situation. I encourage you to consulate an attorney if you think any of this may apply to your situation.
Gunnar Armstrong
