On February 24, 2020, new Regulations suddenly came into force which may have serious impact on people’s ability to immigrate or extend their current non-immigrant status in the United States.   These regulations were to come into force in October 2019, but were stopped by court challenges.    The Supreme court then allowed the regulations to be put into effect, and the U.S. government started enforcing them on February 24, 2020.

In one way, this could be a major change.  In another way, it might not be a major change—we will need to see how the change will be implemented.

Immigration law has never allowed 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 were 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) do not need an Affidavit of Support, but instead need to show that they have a job that will provide for their needs.

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.

It looks like things may be changing under the new regulation.   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.   I have seen evidence that both the USCIS and the Consulates were becoming more strict in their requirements that people coming to or staying in the United States demonstrate that they will not become a public charge and that they will be able to pay their own way.  Now that there is a new regulation in force, we may see a whole new level of scrutiny regarding these issues.

THE NEW PUBLIC CHARGE RULES:

As I stated above, these new rules don’t really change things much.  The USCIS has always had discretion to make their own decision regarding the Public Charge Rule and they still have the same discretion.   What has changed is that the new rules send a message that they are to be stricter in their review of financial issues, and the new rules give a number of new criteria that they are specifically told to consider.    What the USCIS and the Consulates will do with these new directives we will have to see.  However, it is important to be as prepared as you can.

The first thing to know is that the new rules emphasize that if you are a nonimmigrant or a person hoping to become an immigrant, after February 24, 2020, using welfare as an adult — Medicaid, cash assistance, food stamps (SNAP), subsidized or public housing, or SSI (Cash assistance for disabled or older people) will be viewed negatively, and too much use of welfare will be heavily weighted against you.   If a person is under 21 and unmarried, the use of Medicaid will not be held against him.  If an adult uses Medicaid due to an emergency medical condition, this is also allowed.  If you are over 21, or are married, and have been using any of these forms of welfare, you should immediately disenroll from the welfare benefit and get proof that you have disenrolled.  

It should not be a problem that this is shortly after February 24.   It appears that use of welfare for a short period will not be viewed too negatively.   But continued use will be viewed very negatively.   Continued use would mean using welfare for twelve months in any 36 month period.  It is also important to understand that using two benefits in one month will count as using two months-worth of benefits.  In other words, if you have SNAP and Medicaid together for six months, you will have reached the 12-month mark and it will be weighted heavily against you in the Public Charge determination.   Therefore, if you are in non-immigrant status and hope to extend your status or to get a green card, or if you are in the United States illegally or in some status such as parole or DACA or TPS and hope to obtain a green card, and you are using welfare at the current time, you should immediately disenroll from all forms of welfare.

Remember that these restrictions do not apply to a child who is receiving Medicaid.  Also, it does not apply to US citizens who are receiving welfare.   It is not supposed to be a problem at all for children to receive medicaid or for US citizen family members to receive any type or welfare — but I think it is best that you avoid it if you can.  Immigration is not supposed to hold this against you, but I can’t guarantee that the fact that your family members qualify for welfare won’t be considered in some way.

Also remember that this discussion does not relate to persons holding green cards — people holding green cards are not supposed to be receiving welfare at all.

Another significant change is that the new regulation specifically states that the Affidavit of Support (required only for family-based immigrants) is now clearly not sufficient on its own — and the immigration 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.

The other changes are that the new rule lists various factors that the USCIS and the Consulates should consider.   Please remember that most people may have some positive and some negative factors.   The presence of some negative factors should not be a problem.  The USCIS and the Consulates are supposed to look at all the factors together and reach an overall decision.  The factors are as follows:

• Is the immigrant between 18 and retirement age (This is a positive factor. Apparently, the presence of children or older persons is a negative factor because they are less likely to be able to support themselves).
• The alien’s health. Is he able to work?  If not, or if he has a serious medical condition, does he have a way to pay for the medical bills?
• The Alien’s household size. Apparently, a larger family will be viewed as a negative because they will require more money to keep them off welfare.
• The alien’s income and assets. Whether or not he has enough income and assets to keep him off welfare without anyone’s help.   They would like to see enough income an assets to equal 125% of the US poverty level for the size of the alien’s family.   For one person, 125% of the poverty level in 2020 is $16,000; for two people, $21,550; for three people, $27,150; for four people $32,750, and so forth.   They will also look at the alien’s debts and their most recent Tax Return and credit history.
• The alien’s education and skills. Is he qualified to get a job in the US?
• The Affidavit of Support. As I stated above, this is now just one aspect of the consideration.   However, I think that it will continue to be a major consideration.  I am advising my clients, especially if they do not have good income or assets, to try to get a Joint Sponsor who makes as much money, or who has a lot of assets/savings.   I think that the days of having a Joint Sponsor who just barely qualifies are now in the past.   The government also wants evidence of the ties between the immigrant and the Joint Sponsor.  They want evidence that the Joint Sponsor really is committed to upholding their responsibilities under the Affidavit of Support.

Heavily Weighted Factors.   The rule sets out some guidelines that are supposed to be especially important in the decision making.   Again, the presence of just one heavily weighted negative factor should not be enough, by itself, to cause the government to deny your application.

Heavily weighted Negative Factors:

• The alien is not a full time student and does not have a recent employment history, is not employed or cannot demonstrate a reasonable prospect of future employment.
• The alien has used welfare for 12 out of the 36 months immediately preceding his application for admission. (the USCIS has stated that it will not consider any use of welfare before February 24, 2020).
• The alien has a major medical condition that will require extensive treatment or interfere with his ability to work and the alien is uninsured and cannot get private health insurance and does not have the resources to pay for medical care.
• The alien was previously found inadmissible or deportable on public charge grounds by an immigration judge or the Board of Immigration Appeals.

Heavily Weighted Positive Factors:

• The alien’s household has income at 250% of the poverty level.
• The alien is legally working and earning over 250% of the poverty level.
• Health Insurance — not including Obamacare with its tax credits.

The USCIS or the Consulate is supposed to look at all of these factors and make a decision.    I think that a strong Affidavit of Support will still be very helpful, especially for people who do not have any of the Heavily Weighted Positive Factors.  And most people will not have more than one, if any, of the Heavily Weighted Negative Factors.

Important observations:

• As I stated above, if you need a Joint Sponsor, you want to get as strong an Affidavit of Support as you can. I think it will still play a significant role in the decision making.
• If you can get insurance, that is a strong positive. I think that the Chr-stian Healthcare Sharing M-nistries are probably helpful in this regard, but I don’t know if they will satisfy the requirement for a “Heavily Weighted Positive Factor”. But, they should, at least, provide evidence that you have the resources to care for any health problems that will come up.

In short — in one way nothing has really changed except the clear negative impact of continued use of welfare.   The USCIS and the Consulates were always supposed to look at the “big picture”.   The real difference now is that they are explicitly told to look at all these different factors.   I do not know how much difference there really will be under these new factors — we will have to wait and see.

SO HOW WILL THIS AFFECT YOU?

• R-1 R-ligious workers:
  1. 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.
  2. The upshot is that the stronger you can make the financial situation in your R-1 applications, the better.
  3. 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.

• Special Immigrant R-ligious Workers (R-ligious Worker Green Cards) (whether going through a consulate/embassy or an Applicant for Adjustment of Status):
  1. 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.
  2. The upshot is that the stronger you can make the financial situation in your petitions, the better.
  3. 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.
  4. Be prepared for more inquiry regarding your ability to stay off welfare when you enter the US/Adjust Status. Be prepared to provide additional evidence regarding your ability to work, educational and credit history.
  5. Insurance, or at least a Healthcare Sharing M-nistry is probably much more important.

• Family-based Immigrants (whether going through a consulate/embassy or an Applicant for Adjustment of Status):
  1. Be prepared for more inquiry regarding your ability to stay off welfare when you enter the US/Adjust Status. Be prepared to provide additional evidence regarding your ability to work, educational and credit history.
  2. 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 spouses of m-ssionaries who often have lower incomes and are not looking to get “regular” work here in the US.
  3. 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.
  4. Insurance, or at least a Healthcare Sharing M-nistry is probably much more important.

How things will change in practice, I can’t say for sure.   But get off and stay off welfare, get insurance or at least membership in a health care sharing m-nistry, get as strong an affidavit of support as you can, and be prepared to show how you and your family will not need to go on welfare.

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