Update 11 Oct, 2:30 PM EST – Public charge rule blocked!
Public charge rule has been put on hold be a federal judge in New York. First reported by Reddy & Neumann Attorney via news on block order on Scribd.
Public Charge Rule
The new public charge rule starts on Oct 15, 2019 for applications filed on or after Oct 15 to judge your eligibility for green card based on your age, health, financial status and education.
11 states have filed a lawsuit to block this regulation at this time.
This new rule does not apply to US citizens but will be applicable for H1B, H4, L1, L2, B1, B2, O1, O3, TN, TD, E visa workers applying for visa at US embassy or extending status or filing adjustment of status.
Trump also announced the mandatory non-subsidized health insurance requirement for immigrant applications filed at US embassy starting Nov 3, 2019.
The current pending applications will not be affected by this new rule.
- If you use any public benefit for more than 12 months in total in last 36-month period OR
- Receipt of two benefits in 1 month counts as 2 months.
If you are expected to completely rely on government paid benefits like Food Stamps or subsidized health insurance even when working in US on H1B visa, the new rule will:
- Not allow you to enter US.
- USCIS will deny you visa extension or change of status applications.
Are H1B Visa Workers Affected?
The new rule is applicable for application filed using form I-539 (commonly used for H4 extensions), Form I-129 (Commonly used for work related visa like H1B, L etc.)
The good news is that children studying in government public primary (elementary), middle and high schools are not considered a public charge. At this time, the subsidized food in school lunch is also not part of the rule.
As per my opinion, H1B and L visa workers will not be affected much as they already get health insurance from employer and are self sufficient in managing their home expenses.
Obamacare & Premium Tax Credits
DHS added a new heavily weighted positive factor if you use private health insurance without any subsidies in the form of premium tax credits (including advance premium tax credits) under the ACA (Affordable Care Act).
Many people on H1B or L visa working for small IT consulting companies use Obamacare healthcare platform to buy health insurance and then claim the premium tax credits in their IRS tax return.
This new rule will count it as a negative factor for your green card application. So, beware and try to buy private insurance without any government subsidy and preferably from employer group insurance plan.
If you have used the health insurance subsidy, you can fix it as the USCIS officer will look at past 36 months records to see if you are dependent on government benefits. If you are an Indian, you have enough time to change your plan and fix your records as your priority date might be decades away.
If you have used the Premium tax credit in past, you are still safe as the new rule’s application starts from Oct 15, 2019. If you are using the health insurance subsidies, we recommend to stop using it.
Hospital bill discounts or negotiated final payments do not count towards public benefit.
Parent’s Green Card Sponsorship
Family migration would certainly be affected if people apply for low income housing benefits which many of them do.
You will also have to buy private health insurance for parents to avoid public charge condition along with filing form I-864 affidavit of support.
At this time, In-State Tuition and University Scholarship are not part of public charge rule.
Simple rule to follow: If its federal help or subsidy based on your financial status, then it will be counted as public charge.
Scholarships do not count though as they are based on merit and not the financial status.
H4 EAD and L2 EAD are just the work permits to work in USA. You are free to choose to work or not work after getting EAD card. You should not use the subsidies though to get health insurance as that would count as a public charge.
In home Supportive Services (IHSS) do not count as public charge.
You are fine as long as you can stop using the premium healthcare tax credit now and stop taking Obamacare Subsidies. The new rule starts from Oct 15 for new applications.
SDI benefits from State for Maternity and Paternity leave as we have in California are not part of public charge.
The temporary disability insurance (TDI) are mostly funded by the employee’s payroll deductions. They can receive benefits when they are temporarily unable to work due to disability, including pregnancy.
The tax credits claimed on your IRS tax return are legal and are not counted towards the public charge.
Earned Income tax Credit (EITC), Additional Child Tax Credit (ACTC) and Child Tax Credit (CTC) are excluded from Public charge definition.
401k is your money and is not funded by government. Don’t worry and do not think too much if you are reading this question 🙂
There is no mention of solar and electric car like Tesla or hybrid car subsidy in the DHS rule for public charge.
We assume that since these are promotional subsidies given by government to promote the use of environment friendly fuel, this will not be part of public charge rule.
DHS Public Benefit Deciding Rules
USCIS will assign points for your application based on multiple factors.
If you are younger than 18 or older than 61, you are a negative point as you have high chance of using Medicaid.
#2 No Active Employment
If you cannot prove that you are employed or have been employed in recent past, you will earn a negative point for your extension of status visa application.
#3 Health Insurance & Personal Assets
If you cannot buy your own health insurance or your assets are so low that they cannot pay for your healthcare, your Green card application will be denied.
Your application gets a positive point if your age is between 18 to 61.
#2 Private Health Insurance
Your income standard, evidence of assets and resources, credit report score will be used to judge your financial status. DHS will consider it a positive point if you can pay for your own medical costs using your own income.
#3 Education & Skills
Your education, English language proficiency, skills and full time employment will count as a positive point for your profile.
Public Charge Bond
USCIS will add a bond of minimum USD $8,100 if they think you are going to apply for government services in future. The bond amount may increase based on your situation and application details.
Applications for i485 will need to have form I-944 (Declaration of self-sufficiency). USCIS can deny the application even without issuing any RFE or NOID if the form I-944 or I-864 (Affidavit of support) are not attached to i485 application.
Public Benefit Used By A Family Member?
You are safe as long as you have not used the public benefit yourself even if any of your dependent household member has used them.
You are working in US on H1B visa and your US citizen minor kid used the public medical services due to their disability. The public benefit was extended on your name as the kid is a minor. You are still safe.
- Any cash benefits for income maintenance
- Supplemental Security Income (SSI)
- Temporary Assistance to Needy Families (TANF)
- Supplemental Nutritional Assistance Program (SNAP)
- Most forms of Medicaid
- Housing Assistance under the Housing Choice Voucher (HCV) Program
- Project-Based Rental Assistance, and certain other forms of subsidized housing
Public Charge Exceptions
- Active duty or Ready Reserve component of the U.S. armed forces, and their spouses and children
- Certain International Adoptees and children acquiring U.S. citizenship
- Medicaid for aliens under 21 and pregnant women
- Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act) and
- Medicaid benefits for emergency medical services.
- Victims of qualifying criminal activity (U non-immigrants)
- Certain trafficking victims (T non-immigrants)
- Special Immigrant Juveniles (SIJs)
- Victims of domestic violence (VAWA self-petitioners)
- Humanitarian-based immigration programs for refugees, asylees
Source: Full text of Public Charge Rule