Qualifying for a Green Card is Much Harder

Public Charge / PUBLIC CHARGE

In the summer of 2019, the Trump Administration's Department of Homeland Security posted new regulations that will make the legal process of qualifying for a green card much harder. As written, the rule would establish the creation of a “wealth test” and other legal barriers that discriminate against non-English speakers, their children, the elderly and people with serious illnesses

Although the rules were set to take effect on Oct. 15, multiple courts have issued preliminary injunctions, including three nationwide injunctions from courts in New York, Washington and Maryland. A preliminary injunction is not a final ruling that the proposed changes are invalid. However, in order to issue preliminary injunctions, the courts had to find that the plaintiffs - the opponents of the rule changes - were likely to succeed on the merits and that the changes would cause irreparable harm if they go into effect.

For the latest on the public charge issue as it develops , visit www.ProtectingImmigrantFamilies.org .

Basic Facts About Public Charge

What is public charge? Many people are worried that new “public charge” rules will impact their immigration status or the status of a family member. Here are some key facts about the rules.

The public charge test has existed for a long time. The test is part of the application processes for a green card and for visas that allow people to enter the United States from abroad.

The new rules, which were set to take effect on Oct. 15, would change the public charge test that occurs when someone is applying for their green card from inside the United States - this is called “adjustment of status.”

Currently, immigration officials applying the test can consider whether applicants for adjustment of status have used government programs that provide a cash benefit or that pay for people to stay in nursing homes.

The new rules allow immigration officials to also consider the use of Medicaid; SNAP (the federal food assistance program); and federal housing programs. However, people generally don't become eligible for those benefits until after they get their green card and have already passed the public charge test.

The new rule also imposes barriers that will discriminate against people with low ‐ incomes, children and seniors, people that don't speak English, and people that have serious illnesses or disabilities. These barriers will impact people even if they've never used public benefits.

Know the Limitations

The public charge rule changes will harm people's chances of becoming permanent legal residents of the United States. But there are important limitations to the rules that communities should know:

There is no public charge test during the citizenship application process . People who already have their green card will not be submitted to the public charge test, unless they leave the US for more than 6 months and then try to come back. Green card holders that plan to leave for a long period should talk to an immigration attorney.

Several groups are exempt from the public charge test. People who entered the United States as refugees, who were granted asylum, who have temporary protected status or who have certain other statuses granted for humanitarian purposes are exempt from public charge. Their use of public benefits will not be considered when they apply for a green card.

Getting benefits for eligible children will not be considered when a parent applies for adjustment of status. * The new rule is explicit that people can access benefits for their children or other family members without risking their own ability to adjust their status.

Use of Medicaid by pregnant women and children will not count against them when they apply for adjustment of status. * Pregnant women and children that can document lawful presence can receive Medicaid even though they don't have their green card yet. If they use Medicaid, that will not count under the new public charge test.

* People who did not enter the US legally and maintain their legal status may not be eligible for adjustment of status. They will have to go to their home country and apply for a green card from there. For now, the foreign consulate officers that process green card applications abroad may ask about public benefits used by household members. To understand whether you need to be concerned about this, ask an immigration attorney if you or your family members will have to go abroad to apply for a green card.

Currently, immigration officers who apply this test can consider whether status adjustment applicants have used government programs that provide a public cash benefit or that they pay for people to remain in nursing homes.

The new rules allow immigration officials to also consider the use of Medicaid, SNAP (the federal food assistance program or food stamps) and federal housing programs. However, people are generally not eligible for those benefits until after they obtain their residence (green card) and have already passed the public charge test.

The new rule also imposes barriers that will discriminate against people with low incomes, children and the elderly, people who do not speak English and people who have serious illnesses or disabilities. These barriers will affect people even if they have never used public benefits

KNOW THE LIMITATIONS

Changes in public charge rules will impair the chances of people becoming permanent legal residents of the United States. But there are important limitations in the rules that communities must know:

There is no proof of public charge during the citizenship application process . People who already have residency (green card) will not be tested for public charge, unless they leave the U.S. for more than 6 months and then try to return. People who already have their residence (green card) who plan to leave for a long period of time should speak with an immigration lawyer.

Groups are not subject to the public charge test. People who entered the United States as refugees, who were granted asylum, who have temporary protection status or who have certain other status granted for humanitarian purposes are not subject to public charge. Your use of public benefits will not be considered when applying for residency (green card).

Benefits for eligible children will not be considered when a parent requests a status adjustment. * The new rule is explicit that people can access benefits for their children or other family members without risking their own ability to adjust their status.

Medicaid use by pregnant women and children will not count against you when they request adjustment of status. * Pregnant women and children who can document their legal presence can receive Medicaid even if they do not yet have their residence (green card). If they use Medicaid, that will not count under the new public charge test.

* Persons who did not enter the United States legally and maintain their legal status may not be eligible for adjustment of status. They will have to go to their country of origin and apply for residence (green card) from there. For now, foreign consulate officers who process residence applications (green card) abroad may ask about public benefits used by family members. To find out if you need to be worried about this, ask an immigration lawyer if you or your family members will have to go abroad to apply for residency (green card).