As a matter of law and per USCIS instructions, the following classes of individuals are exempt from the public charge ground of inadmissibility, among others:
1. Applicant for asylum, refugee or adjustment of status based on asylum or refugee status;
3. Violence Against Women Act (VAWA) self-petitioner or adjustment of status based on VAWA;
4. Applicant for T (victim of human trafficking) nonimmigrant status;
5. Petitioner for U (crime victim) nonimmigrant status or adjustment of status based on U status; or
6. Applicant for Temporary Protected Status
7. Applicants filing for adjustment on the basis of Special Immigrant Juvenile Status.
The new rule proposes that when making a public charge inadmissibility determination, an officer must, at a minimum, consider the intending immigrant’s age, health, family status, assets, resources, financial status, education, and skills. The burden of proof is on the non-citizen to demonstrate eligibility for the application for admission and to demonstrate that she is not inadmissible. Those intending immigrants who are deemed as public charge, will be required to fill out a declaration of self-sufficiency (Form I-944), and perhaps post a bond or cash deposit in order to overcome this ground of inadmissibility.
While the regulation has not gone into effect yet and probably won’t go into effect till next year, the proposed rule requires immigration caseworkers consider the use of public benefits to be “heavily weighed negative factors” for those who are applying to remain legally in the country on a permanent basis. The rule gives unfettered discretion to an immigration officer to deny those who have sought public benefits in the past or may be likely to seek benefits in the future.
While immigrants use public benefits at a much lower rate than their U.S. citizen counterparts, the proposal is designed to force thousands of poor immigrants who rely on public assistance to make a difficult choice between accepting financial help for themselves, and seeking a green card to live and work legally in the United States.
Here’s a handy guide from the Kaiser Family Foundation on how the public charge rule has expanded, and to whom it may apply. Stay tuned for further updates.