On August 14, 2019, the Department of Homeland Security posted the Final Rule on the new provisions related to public charge. The new rule will apply many people, whether they are filing for an immigration benefit based on employment or a family relationship.
We are still analyzing the rule, which was just published today, so please check back for updates.
When does the rule take effect?
October 15, 2019. The new definition of public charge will not apply to cases that were filed before that date. In addition, DHS will not penalize people who received benefits before October 15
What is a “public charge”?
The term “likely at any time to become a public charge,” has always been is a ground of inadmissibility (a reason to deny an immigration benefit) in the Immigration and nationality Act (INA). Up to now, the term was limited to people who were primarily dependent on cash benefits or in government-funded, long-term institutional care. The type of benefits were limited to Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance, as well as a Medicaid program that covers the institutionalization mentioned above.
What applications are affected by the law?
The “public charge” rule applies to:
How does the new rule change the “public charge” definition?
The new rule makes some very important changes to the analysis of “public charge.”
1. DHS may now consider that someone is a public charge if they are “more likely than not” to receive the listed benefits for more than 12 months total within any 36-month period. A person who gets two benefits in one month is considered to have used two months of benefits. Chillingly, the FAQs on USCIS web page expand this, saying that “…because a public charge inadmissibility determination is prospective in nature, in the totality of the circumstances, any duration (and amount) of public benefits received may be considered in the totality of the circumstances.”
2. DHS has expanded the list of benefits that could disqualify a person. In addition to the benefits already counted, DHS will consider:
Benefits that will not be counted are:
Benefits received by the applicant’s U.S. citizens children or other family members are not considered unless the foreign national is also listed as a recipient.
3. The rule gives officers broad discretion to consider additional factors in determining whether a foreign national is likely to become a public charge. These factors include age, health, family status, assets/resources/financial status, and education/skills. Other factors that DHS will consider include the foreign national’s prospective immigration status and expected period of stay (immigrant or non-immigrant).
How can these discretionary factors be viewed?
The following factors will generally weigh heavily in favor of a finding that a foreign national is likely at any time to become a public charge:
The following factors would weigh heavily against a finding that a foreign national is likely to become a public charge:
Is anyone exempt from the rule?
Yes. The public charge rule does not apply to:
What if I am deemed to be likely to be a “public charge”?
Foreign nationals may be able to post a public charge bond of at least $8,100 to avoid a public charge determination. The bond may be cancelled only upon the immigrant’s death, permanent departure, five years as a lawful permanent resident, or naturalization. The bond will be considered breached if the immigrant receives any of the cash or non-cash programs identified above for more than 12 months in the aggregate within any 36-month period.
The draft bond form I-945 is here and instructions are here.
I filed an Affidavit of Support – doesn’t that help?
It does help. It is one of many factors that DHS will consider. The likelihood that the sponsor on the I-864 will really be able to support the foreign national is important.
Does Obamacare count as a benefit?
Yes and no. DHS says that it won’t consider subsidies under the Affordable Care Act as public benefits, BUT private health insurance is one of the “heavily-weighted positive factors.” In other words, you won’t be penalized for using Obamacare subsidies, but it you had health insurance without them, it would be better.
Are there any new forms?
All applicants for Adjustment of Status (employment and family cases) will need to complete a Form I-944, Declaration of Self-Suffiency. USCIS has discretion to ask non-immigrant beneficiaries to also complete this where necessary.
The Form I-944 collects information such as age; health; family status; assets, resources and financial status; and education and skills. DHS estimates that it will take applicants 4.5 hours to complete this.
Draft Form I-944
Form 944 instructions
What should I do now?
If you are considering filing any petition or application with immigration, do it now, before October 15. If you can’t file before October 15, analyze any benefits that you are receiving to see if they are listed above.
For any questions about the new rule, how it might affect you, and how you can file applications before the rule takes effect, please contact immigration attorney Elaine Martin.
U.S. Citizenship and Immigration Services (USCIS) recently released a final regulation that makes significant changes to the EB-5 Immigrant Investor Program. The changes take effect in November 2019.
What is EB-5?
The EB-5 Program was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under this program, investors can ultimately obtain permanent residence (“green cards”) by investing in projects that are designed to promote employment and economic growth.
What are the current investment requirements?
The EB-5 visa requires foreign nationals to invest at least $1,000,000 to finance a business in the United States that will employ at least 10 American workers. The investment amount is reduced to $500,000 where the investment is in a TEA (Targeted Employment Area).
What are the new investment requirements?
Starting in November 2019, the investment amounts increase to $1.8 million and to $900,000 for a TEA.
What is a Regional Center?
An EB-5 Regional Center is an entity designated by USCIS that sponsors real estate projects for EB-5 investment by foreign investors. One advantage of a Regional Center is that an investor can use indirect job creation to count towards the 10-job requirement.
How does the new rule affect Regional Centers?
The new eligibility criteria mean that many approved Regional Centers may no longer qualify for EB-5 investment after November 20, 2019. USCIS has decided not to allow approved Regional Centers to seek investment under existing regulations after November 20.
Many in the industry predict Congress will temporarily renew the Regional Center program as it has done many times in the past, but nothing is certain in Washington, D.C
What is a TEA?
Under existing rules, a TEA is a rural area or one that has an unemployment rate of 150% of the national average. States currently have broad authority to designate high unemployment areas, and program rules allow officials to set TEA borders that best reflect local demographics. High-unemployment TEAs can thus extend across multiple census tracts and include areas that are geographically distant from an investment project, but are consistent with regional commuting patterns and economic needs.
How does the new rule affect TEAs?
The new regulations will eliminate state involvement in the designation of TEAs a nd limit TEAs to strictly demarcated areas. USCIS will be authorized to designate high unemployment TEAs and eliminate state involvement.
The new rules will also restrict a TEA to the immediate area around an EB-5 project, such as a census tract or contiguous tracts and adjacent areas. USCIS will no longer permit the inclusion of more remote high-unemployment areas from which U.S. workers may commute to TEA jobs.
This new methodology will mean that it will be more difficult for urban development projects – among the most sought-after by foreign investors – to qualify for the lower EB-5 investment threshold.
For more information, contact Elaine Martin, Immigration Lawyer at +1-214-329-4148 or firstname.lastname@example.org
Congratulations to Margaret, who should be getting her permanent residence (green card) soon. She deserves this benefit; she has endured a lot.
Two of my favorite visas - E-1 and E-2 - are now available to New Zealand nationals! The Embassy in New Zealand announced the availability of the E visa categories this week, following the enactment of the Knowledgeable Innovators and Worthy Investors (KIWI) Act, which was signed by President Trump on August 1, 2018.
E-1/E-2 status generally requires:
E-1 status requires that the majority of the trade of the company is between the US and New Zealand, and that the trade be substantial.
In contrast, E-2 status does not require any continuing business between the US company and the treaty country. E-2 status is available to nationals of treaty countries who enter the US as managers/executives, or with "essential skills" and will be employed by a US company that is at least 50% owned by treaty nationals. A common misconception is that the E-2 visa holder must herself be the investor. This is not the case. E-2 visa holders fall into two general categories:
1. Treaty nationals who are creating a new US business or buying an existing business.
2. Treaty nationals who are entering the US to work for a company that is owned by people of the same nationality. For example, a New Zealander coming to the US to work for a New Zealand-owned company could get E-2 status, assuming she met all other requirements.
For more information about E-2 visas, contact Elaine Martin, Immigration Lawyer. See also this link: http://www.martinvisalawyer.com/uploads/3/8/6/0/38600843/e-2_info_sheet.pdf
USCIS notice on New Zealand E-1 and E-2 here.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.