Discussion Points for Punto Legal –September 11, 2019

1. New Public Charge Rule.

We are going to continue to talk about the new public charge rule today. Recall that the new rule was published on August 14, 2019, but will not go into effect until October 15, 2019. It does not apply to immigration applications filed before October 15, 2019. Nor does it apply to pending adjustment of status applications and new applications postmarked before October 15, 2019. The public charge rule does not apply to the U visa program. Public charge does not apply to people who are already permanent residents. It does not apply when permanent residents renew their green card. There is not a public charge test for citizenship.

At least, six lawsuits have been filed against the rule. But, there have been no decisions from the lawsuits.

I want to discuss an analytical approach to the public charge rule.

First, disregard all the discussion about which public benefits count against you and which don’t. If you are undocumented and want to get papers, you never got public assistance benefits in the first place . . . the one notable exception being emergency Medicaid, which does not count.

In applying the public charge rule, the starting point will be the so-called heavily-weighted negative factors and the heavily weighted positive factors. The first heavily weighted negative factor is unemployment. If you are authorized to work and either don’t work or don’t go to school, unemployment is a heavily-weighted negative factor. The next negative factor is a medical condition requiring extensive medical treatment and no insurance. The first heavily weighted positive factor is a household income of at least 250 percent of the poverty guidelines. For a household size of four, including the intending immigrant, 250 percent of the poverty guideline is $80,468. The second heavily weighted positive factor is the intending immigrant’s household income, if he or she is authorized to work. The third heavily weighted positive factor is health insurance, provided that it is not subsidized by the Government.

If an immigrant has an average case and a heavily weighted negative factor, you need to counter-balance that with a heavily weighted positive factor. If you have an average case, and a heavily weighted positive factor, you are good to go.

Once past the heavily weighted factors, we get into the heart of the rule. Under the rule, the immigration service will consider the:

· Intending immigrant’s age, in particular whether the immigrant is between 18 and 62.

· Health.

· Household size, the smaller the better.

· Financial status. This includes household income and ownership of assets; health insurance; and financial liabilities.

· Education and skill. This includes ability to obtain employment; history of employment; high school diploma; occupational skills; ability to speak English

· Affidavit of support.

Example: Edgar is a 45-year-old truck driver who lives in Edwards, CO. In 1996, his citizen sister filed immigration papers for him. He is ready to adjust his status with his wife and two kids as a grandfathered alien. He is healthy and neither he nor his sister earn over 250 percent of the poverty line. In other words, none of the heavily weighted factors hurt him or help him. He plans to keep driving trucks and get a commercial driver’s license. His household size is modest; he has no debt; he can earn $24 to $29 per hour driving trucks; his employer provides health insurance. He did not complete high school and he can’t speak English. Is Edgar a public charge? No.

Another example: Sonia is a U.S. citizen who lives in Rifle. She earns $75,000 per year as a nurse at the Grand River Hospital. Her father, Alejandro, entered the U.S. in 1995 with a visa. Sonia wants to fix her father’s papers. There are no heavily weighted factors for or against the father. Her father is 64 years-old and works in construction. He only attended 6 years of school and cannot speak English. He has no health insurance. In 2015, he bought a loaded Ford F-150 but couldn’t keep up the payments on it. The truck got repossessed. As a result he has a bad credit report. Is Alejandro a public charge? Yes. What would change that outcome? If Alejandro could get health insurance.

2. PIP Program.

It looks like the PIP program has survived. Earlier this summer, there were rumors that the Trump Administration was going to cancel the PIP program. The PIP program gives parole-in-place to parents of members of the military so they can fix their papers in the United States once the service member turns 21.