Update: Public Charge

1. Update: Public Charge Gabrielle Lessard Lessard@nilc.org

2. Who We Are National Immigration Law Center (NILC) • Our mission is to defend & advance the rights & opportunities of low-income immigrants and their family members. • We combine policy analysis and advocacy, impact litigation and strategic communications to protect immigrants’ rights and to advance their access to health care, education and economic opportunity.

3. Disclaimers • Things are changing fast! • There are a lot of unknowns. • We are sharing the information we have at this time. • We are providing general information, not legal advice

4. Public Charge

5. Public Charge: Background • A Public Charge has historically been a person dependent on the government for financial and material support • There are two places that the Immigration and Nationality Act talks about Public Charge: • Inadmissibility: whether a person can be denied permission to come to the US or become a permanent resident (§212(a)(4)) • Deportability: whether a person can be deported for having become a public charge with 5 years after entering the U.S. for reasons that existed before they came in (§237(a)(5))

6. Status of Regulations Deportation Rule is being developed by the Department of Justice (DOJ) The Office of Management and Budget (OMB) is currently meeting with stakeholders about the rule’s impact If OMB agrees the rule is economically significant, DOJ will have to do more analysis before it is published as a proposed rule We will need to comment! Inadmissibility • Rule developed by the Department of Homeland Security (DHS) • This is the one we all commented on! • Final rule published 8/14/19 • Rule takes effect on 10/15/19 • Applications for LPR status submitted before 10/15 will be adjudicated under the prior policy

7. Remember • The likelihood that a person will become inadmissible as a public charge is assessed: • when they apply to enter the US and • when they apply to become a lawful permanent resident (LPR) • There is no public charge test when an LPR applies for citizenship • An LPR who leaves the U.S. for over 6 months will be assessed when they return

8. Who is Subject to Public Charge? • Many immigrants are exempt from Public Charge inadmissibility, including: • Refugees and asylees; • survivors of traf­ficking and other serious crimes; • self-petitioners under the Violence Against Women Act; and • special immigrant juve­niles

9. Statutory Public Charge Test • The inadmissibility test considers whether a person is likely to become a public charge in the future • Based on all of the factsrelevant to their ability to support themselves • A person does not have to have used any benefits to be deemed likely to become a public charge • Immigration agents are required by statute to consider a person’s: • age • health, • financial resources, • dependents, • skills and work experience • Other relevant factors may be considered, including whether the person has a sponsor

10. The DHS Regulations

11. Regulations • Change the definition of Public Charge to a person who uses or receives one or more specified public benefits for at least 12 months in a 36 month period • Receiving two benefits in one month counts as 2 months of benefits • Adds health, nutrition and housing programs • New standard – more likely than not to become a public charge • Provides clarification that receipt of or application for benefits on behalf of someone else does not constitute receipt of benefits

12. Add Standards and Evidence to Statutory Factors • Age: defines working age as 18 – youngest age eligible for Social Security (62) • Health: whether diagnosed with medical condition that could affect ability to work/study or require extensive care/institutionalization in the future • Family: household size as defined in rule • Financial resources: • income at least 125% FPL (or assets equal to 5x the gap for adults, 3x for spouse/child) • Credit report and score or other evidence of liabilities • Whether applied for or received any public benefit; immigration fee waiver • Has private health insurance or resources to pay for reasonably foreseeable medical expenses • Skills and work experience – includes assessment of proficiency in English; education level (negative if not at least a high school degree or equivalent); caretaker status

13. Heavily Weighted Factors Negative: • Authorized to work but not working and not a full-time student, unable to demonstrate recent employment or reasonable prospect of employment • Has received or been certified to receive a public benefit for more than12 months out of the last 36 months • Has been diagnosed with a medical condition that could interfere with work/school or person’s ability to care for themselves or that could require expensive treatment/institutionalization • Uninsured without the prospect of receiving private insurance/paying for care • Previously determined to be a public charge by Immigration Judge or Board of Immigration Appeals

14. Heavily Weighted Positive Factors • Household has income or resources of at least 250% of FPL (>$64k for family of 4) • Currently employed in a legal industry with an annual income of at least 250% FPL • Has private health insurance for the expected period of admission that does not include ACA plans subsidized by premium tax credits T

15. Which benefits are considered? • Federal, state, local or tribal cash assistance for income maintenance, and • certain noncash medical, housing and food benefits: • Medicaid (with exceptions) • SNAP • Section 8 vouchers & project-based • Public housing This Photo by Unknown Author is licensed under CC BY-NC-ND

16. Exceptions • Services received for an emergency medical condition • Health benefits received by a person under 21 years of age • Health benefits received by a woman during pregnancy and for 60 days after • Benefits received by active duty or Ready Reserve members of the armed forces and their spouses and minor children • Benefits received while a person was exempt from public charge

17. Excluded Benefits Everything not listed! • School-based nutrition services • Public education, including Head Start • WIC • ACA tax credits • EITC • Medicare Part D financial assistance This Photo by Unknown Author is licensed under CC BY-SA

18. Messages • While in some ways this rule is better than the prior versions, it’s still an attack on immigrant communities! • Public charge is part of a larger assault on immigrants • Puts millions of families at risk, threatens to worsen child poverty, hunger, and unmet housing and health care needs, and will ultimately harm whole communities and our nation. • Key points when speaking with individuals or media • Note who the rule DOES NOT apply to • NILC and its partner organizations plan to sue to block DHS’s final public charge rule from taking effect.

19. Advocacy Asks • Federal level - Engage MOCs to act • Ask your MOCs to cosponsor HR 3222 - “No Federal Funds for Public Charge” • Ask your MOC to speak out in opposition to the rule. • State and Local Officials and Agencies • We will have a factsheet form our state policy subcommittee that will further outline how to mitigate the harm • Partner & Community Education • Fight fear with facts - start updating your resources and materials, and figure out how to triage issues and questions from community members and allies. • Let us know what questions you are getting from community members.

20. Resources Updated public charge resources based on the final text AVAILABLE NOW: Communications Toolkit AVAILABLE NOW: Digital Toolkit for Rule Finalization If you have additional questions on the DHS finalized rule, you can submit them here: https://docs.google.com/forms/d/e/1FAIpQLSc12-q5LTNtSkwuHL4J5r7XLPxNdUDiRSD6gosebAn1VbuRrg/viewform (This form is for organizational partners. We cannot give advice in individual cases.)