New DHS ‘public charge’ rules raise stakes for immigrants from India

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Indian immigrants to the U.S. and their relatives could potentially face new challenges complicating their ability to immigrate temporarily or permanently, or sponsor family members.

The Department of Homeland Security is putting forward a proposal that raises the bar for potential and existing immigrants announcing a proposed rule Sept. 22, that significantly raises the minimum requirements under existing law to ensure that those wanting to come to or stay in America can support themselves financially and will not rely on public benefits.

Secretary for Homeland Security Kiersten Nielsen, indicated the ‘public charge’ rule basically further clarifies what existed under a “long-standing federal law” which said that those seeking to immigrate to the United States must show they can support themselves.

Nielsen has given a 60-day window for public comment adding, “This proposed rule will implement a law passed by Congress intended to promote immigrant self-sufficiency and protect finite resources by ensuring that they are not likely to become burdens on American taxpayers.”

The Immigration and Nationality Act already lays out some “mandatory factors” in section 212(a)(4) for inadmissibility, but the new proposal goes further to define what “public charge” means.

“The Trump administration’s proposed rule would make it more difficult for legal immigrants to access government assistance even temporarily,” Congressman Raja Krishnamoorthi, D-Illinois, told News India Times.

“Denying these families, who are following the rules, even temporary support to get through hardships will only deny opportunity to the next generation of American entrepreneurs and families,” Krishnamoorthi contends.

In response to the ‘public charge’ proposal announced by USCIS, Congresswoman Grace Meng, D-N.Y., tweeted, “Deeply opposed to Trump’s proposal to deny green cards to immigrants who legally use public benefits. It will harm immigrant families by prioritizing the wealthy & scare immigrant families away from critical programs that help children & parents thrive.” Meng’s district has a significant number of Indian and South Asian residents.

According to Doug Rand, a former Obama administration official who was involved in drafting the H-4 (employment authorization document) visa regulations for spouses of H-1B visa holders, this ‘public charge’ rule is designed to reduce the number of people who are eligible for green cards, H-1B visas and other visas by “redefining what makes them dependent on government benefits.”

Furthermore, according to Rand’s company (Boundless) website, “this new hurdle would have disproportionate effects based on national origin and ethnicity, blocking 71% applicants from Mexico and Central America, 69% from Africa, and 52% from Asia—but only 36% from Europe, Canada and Oceania.”

The newly proposed rule defines public charge “to be a person who receives certain public benefits above certain defined threshold amounts or for longer than certain periods of time.”

The DHS points out that “by law the public charge inadmissibility determination is a prospective determination based on the totality of the circumstances, which includes statutorily required factors such as age, health, family status, assets, resources, financial status, education and skills.”

The agency said it will consider current and past receipts of specified public benefits above a certain threshold, as “heavily weighed negative factor” for immigrants or even non-immigrants who are likely to receive these benefits, generally ineligible for change of status and extension of stay.

The potential of affecting Indian applicants inside and outside the U.S., is great if the rule comes into effect. “If you are one of over 380,000 people each year eligible for family-based adjustment of status green cards, or over 500,000 people each year eligible for changes or extensions of temporary visas within the United States, these new standards will apply to you,” Rand told News India Times.

And since Indians are among the largest recipients and applicants for H-1B visas, the policy change will affect this segment most.

“Not all Indians are white collar,” Rand notes, and the ‘public charge’ rules are not just for past or current use of government benefits, but also those deemed ‘likely’ to use benefits. “How it will affect even middle-class Indians most is in areas like – if you are above 61 or below 18 years old; do you speak English proficiently; not to mention the need for significantly higher income levels that will be required to sponsor anyone,” Rand says.

The redefinition of public benefits, could separate “hundreds of thousands of married couples,” Rand contends.

The “public charge rule” could prevent over half of all foreign-born spouses of U.S. citizens from obtaining green cards, says a Sept. 24 analysis on the Boundless’ website.  The firm says it reached that conclusion based on new data it analyzed.

In previous years, DHS has granted around 400,000 green cards annually to spouses of U.S. citizens and permanent residents, the Boundless website points out.

Current federal law requires that the sponsoring spouse (the U.S. citizen or green card holder) show “sufficient” income which Congress defined as 125% of the Federal Poverty Guidelines. That currently would amount to $20,575 for most couples without children.

The new DHS ‘public charge’ rule would  however, create an entirely new set of financial requirements for the foreign national spouse, demanding annual household income as high as 250% of the Federal Poverty Guidelines ($41,150 for most couples without children, or $73,550 for a family of five), Rand says.

“If this new requirement were strictly enforced, DHS could begin denying about half of all marriage green card applicants, each year forcing some 200,000 couples to either leave the United States together or live apart indefinitely,” says Boundless. Based on an analysis of its own ‘secure’ database of some 600 clients over the last six months, Rand says, the company estimates that some 53 percent of foreign-born spouses who are currently eligible for green cards could suddenly find themselves ineligible if the public charge rule comes into effect.

However, Rand is reasonably certain the rule will not take effect till at least the middle of 2019 because of the procedural requirements of public comment, examination and evaluation of those comments etc.

“For legal immigrants, existing law already prevents the use of many public benefits,” till some 10 years after they get the green card, Rand told News India Times,  “So this is a solution in search of a problem,” he asserted.