Proposed Policy Change Relating to Government Benefits May Make it More Difficult for Individuals to Obtain Adjustment of Status Approvals

BACKGROUND

There exists a long-standing rule in the United States that for an individual to be permitted to immigrate to the U.S., that individual must be able to financially support himself or herself.  In other words, individuals who are or would be primarily dependent upon U.S. government assistance would not be eligible for immigration.

Legislatively, a person falling into that category has been designated a “public charge”.  More simply put, a public charge is an individual who is not capable of financially supporting himself or herself and who instead relies upon the U.S. government to do so.

PROPOSED RULE

In October 2018, the U.S. Department of Homeland Security (“DHS”) proposed to expand the definition of a “public charge”.  [CIS No. 2499-10; DHS Docket No. USCIS-2010-0012, Oct. 10, 2018]  More specifically, a series of proposed rules was published that, among other things, expanded the scope of what levels of government financial assistance – or “public benefits” – would render an individual a public charge.

The stated purpose of the proposed rules is that the “DHS seeks to better ensure that applicants for admission to the United States and applicants for adjustment of status . . . who are subject to the public charge ground are self-sufficient, i.e. do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor, and private organizations.”

The proposed rules would require that foreign nationals who are seeking an adjustment of status “demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits as defined in the proposed rule.” Should they be unable to make such a showing, these individuals would not be eligible for permanent U.S. residence.

The proposed rules are complex, multi-layered, and span 183 pages in the Federal Register.

HOW DOES THE PROPOSED CHANGE POTENTIALLY AFFECT FOREIGN NATIONALS SEEKING PERMANENT U.S. RESIDENCY?

If these proposed rules are enacted and the definition of a public charge is broadened, additional types of government assistance would be considered in making the determination whether an individual is considered a public charge.  This subsequently would mean that individuals who are seeking an adjustment of status will have to meet a higher threshold to show that they are not likely to become a public charge.

Undoubtedly, the proposed rules will allow a fewer number of individuals – particularly those receiving any kind of government benefits – to be eligible for an adjustment of status or a visa.  In fact, as the new rules propose to broaden the scope of what public benefits would bar a person from an adjustment of status, commentators have estimated that this could affect thousands of prospective foreign nationals seeking to become permanent residents.

HOW CAN THOMAS J. ARKELL AND DUNN LAW FIRM HELP?

Thomas J. Arkell provides valuable advice to clients regarding how the previous or current use of public benefits could affect their I-485 Adjustment of Status (“AOS”) application.  Should these proposed rules go into effect, Mr. Arkell’s twenty years of immigration experience will undoubtedly be useful in navigating the complexities of the rules.

As discussed previously in this blog, taking every precaution to ensure that an AOS petition is approved has become magnified now that a petitioner who receives an outright denial of an AOS petition can possibly be subject to the issuance of a Notice to Appear, which could then lead to subsequent deportation.

Mr. Arkell has provided vital legal advice to thousands of foreign nationals and – having gone through the Immigration process himself – understands the magnitude of proper legal guidance at this important time in his clients’ lives. If you would like to contact Dunn Law Firm to discuss your credentials or to discuss a FREE consultation with Mr. Arkell, click HERE.

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