Part 1 – Explanations of the terms

  • What is a Public Charge?

The “public charge” inadmissibility test was established by law in 1883, allowing the federal government to deny a person a green card, an extension of a visa or admission into the U.S., which means the government has always withheld the right to exclude people from entering the U.S. if they were going to be “primarily dependent on the government for subsistence”. As U.S. immigration ebbed and flowed over the decades and throughout the 20th century, this standard was applied, but there was not a clear mandate to enforce it.

That all changed last year when the rule was announced, and now that the U.S. Supreme Court has essentially cleared the way for the new, bigger and broader rule to go into effect (See Justice Sotomayor’s dissenting opinion in Wolf vs. Cook County), we are all left to dissect the rule and its implications and begin triage, because this could get very messy, and in many cases, critical.

The new definition of public charge is a road map of different government-sourced assistance which is OK and not OK, and since this rule is now officially in effect, people have to navigate these winding roads to avoid running into a dead end.

This roadmap is based on the following list of do’s and don’ts, but you must find the state and local equivalents as well, adding a whole other wrinkle of complexity:

The rule of thumb is to avoid accessing or utilizing these clearly enumerated sources of assistance if you are not a U.S. citizen, as you may be deemed to be a public charge if you do. This applies to all temporary visa holders and green card holders and the general rule is an aggregate of twelve months over the course of the last 36 months.

  • What is inadmissibility?

The test is labeled as an inadmissibility test, which is a term that refers to the factors which consular officers and Customs and Border Protection officers use when they determine if someone is legally eligible to be issued a visa or to enter the United States. The determination that someone is  inadmissible is usually triggered by a prior U.S. immigration or criminal offense, like an overstay or entry without inspection. With regards to this new rule, the Trump administration has expanded the factors which can be taken into consideration when making this determination,  including: health, age, educational and skills, financial status, assets and resources and “family status”, as well as expected period of admission.

The logical question to be asked is what standard is applied to all these factors to determine inadmissibility? How does the adjudicator balance all these factors in a tangible, measurable way? The answer is that he or she have carte balance to make determinations as they see fit. According to the USCIS website: “Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to become a public charge (in other words, more likely than not at any time in the future to receive one or more of the designated public benefits for more than 12 months in the aggregate within any 36-month period, such that, for instance, receipt of two benefits in one month counts as two months).”

This means that a visa applicant or applicant for a change/extension of status or an adjustment of status,  might not pose a risk today, but could hypothetically pose a risk “more than likely” in the future. My response to that is don’t all of us potentially pose that risk if you take into consideration that we get old, get sick and stop working?

The vague definitions and broad scope of the rule combine to form a lethal pair, allowing adjudicators to cite the rule to determine that visa applicants or those applying to remain in the U.S. or become legal permanent residents might not be able to call the U.S. home.

(Stay tuned for part about the scope of the rule and its impact)