HUGE Change to US Immigration with Public Charge Policy Changes

Immigration attorney, Andres Mejer, talks about how the US Supreme Court  decision last week is going to impact immigration in the US moving forward.

Transcript (Transcripción):

Andres Mejer :Welcome. I’m Immigration Attoney Andres Mejer. Welcome to my weekly live show. Para Ser Legal. Today. I’m going over the public charge rule in detail. Let me start by saying this rule will change immigration as we know it. If your dream is to become a Green Card holder, it just got a whole lot harder

Andres Mejer :A few months ago, I did a Facebook Live. Right. Talked about how Immigration USCIS, that’s U.S. Citizen Immigration Services, wanted to change public charge policy and how it would be applied if you look below. We’re going to post the link right there at the time. Many states filed suit to stop these changes. Well, the Supreme Court decided last week that they would deny the preliminary injunction. They decided that USCIS could implement its change. While the lawsuit continues, what does this mean for you as you move through your immigration journey? It means in every state but Illinois, February 24, 2020. The rules of the road have changed and they’ve changed dramatically. So anybody that files after February 24th, 2020, they will have to deal with these new rules. Now, what are those new rules? Well, I can tell you what the rules are. But the forms themselves are changing. How much I am changing, we don’t know. We haven’t seen the forms yet. So we’re talking about the form I 129. That’s like fiancee visas, religious visas, I 45. That’s for Green Card. I 539, that’s for change of status for nonimmigrant visas or to extend status. I 864, which is affidavit of support. It usually goes along with any Green Card applications and these changes will be presented to us by February 4th. That means we’re gonna have less than three weeks. Well, that’s about 20 days to figure out how to apply them. This affects the entire country, but the state of Illinois, which still has an injunction. Now, why does this matter to you? Well, one, it is a pocketbook issue. If you have an attorney, your fees are going up. After this date, you will be paying more for your attorney. That certainly will be true for us. It will likely be true for every other attorney. Why? There’s an additional form i 944, which is gonna be applied. It is massive, 20 pages. It even asks for your credit score. It asks for everything. It is very detailed. But again, we haven’t seen the final form. So it’s hard to say.

Andres Mejer :So who does this affect? This rule is all about admissibility. So this applies to people applying for admission to the United States. That means if you’re if you’re filing for your Green Card doesn’t matter whether you’re filing in the U.S. or outside of the U.S., that’s an admission. Now, if you’re a Green Card holder and you’re traveling outside of the United States and you want to come back in, hey, you’re going to have to deal with this rule. If you’re a non immigrant visa holder and you’re requesting an extension of your visa or a change to another visa, think student visa or tourist that wants to become a student visa or an H1B or vise versa. Now. Doesn’t this apply for who’s exempt asylum refugees, TPS , T and U visas VAWA special immigrant juvenile and special country specific applications like Iraqi or Afghanistan. Now public charge inadmissibility does not apply to citizenship if you’re applying to become a U.S. citizen. You don’t need to worry about this rule. You don’t need to worry about DACA, Medical Deferred Action or TPS. Those are just not relevant to this ground of inadmissibility.

Andres Mejer :Now, what is the definition of public charge today? So I’m going to tell you what it is today. Let me tell you what it’s going to be after February 24th. So today and let me tell you, in 15 years that I’ve been there, I’ve been practicing law. I don’t I can’t recall one example where I’ve ever seen a client of mine be denied their Green Card because it admissible because the public charge so up. There are other they might say that that, you know, the the affidavit support is insufficient. You need to show more income, but they don’t couch it in terms of public charge. That’s obviously going to change. So today the definition is likely to become primarily dependent on the government for subsistence. Wow. What does that mean? If I’m the government and obviously I don’t work for the government and represent the government and the private attorney. But if I’m the government and you the Immigrant. Want to come into my country? I want to make sure that you’re going to be self dependent, self-sufficient. I don’t want to let you in. Have to support you. So you need to show me that you’re going to be self-sufficient. That sounds great, except what if your criteria is so challenging that you’re denying people because they may become dependent on the government for some reason under some circumstances? Where should that line be drawn? Well, today it’s been drawn very far to denying people. So after February 24th, 2020, the definition of who will become a public charge is anybody who receives one or more public benefits for more than 12 months. In the aggregate, within any thirty six month period, such that if you receive two benefits in one month, it counts as two months. So let’s just say that next week. I don’t know. I lose my job, I lose my house, you know that something bad happens and I apply for public assistance. The government helps me with housing. It helps me with food stamps. That helps me with insurance. So every one of those benefits I receive counts as a month. Even though I only received it for one month now, that’s a big deal because in the past, you know, I would need to have benefits for 12 months straight. But if I get three benefits in one month and I have it for four months, that’s still counted as 12 months. So that’s a pretty big deal. Now, keep in mind, most applying for a Green Card don’t qualify for federal assistance even if they want it. But many may still apply for state aid. You need to be very careful as to what you’re applying for Now. How is this rule applied? So this is the totality of the circumstances approach. So the 12 months out of the 36 is a relatively simple process to calculate. What benefits did you get at a month? Is it more than twelve hours? That’s easy. But the bigger problem is the ability of this new rule gives an officer to determine if somewhat in the future is likely to become a public charge. So. You receive some benefits less than 12, okay. You’re not admissible. But the government can look at that and under all the circumstance say, hey, you’d like me to need some help in the future. And for that reason, I’m going to deny it. So this test will consider the totality of the circumstances. That means no one factor alone should be dispositive. But think about it. This is not objective. This is subjective. Our objective is twelve out of 36. It’s clear. It’s obvious. It’s OK. You know, it’s interpretable. Now, when you’re telling me may, what does that mean? Under what guidelines is the officer going to have to apply this rule? We don’t know. What are they going to look at? Well, we know the factors. One is AGE if the applicant is under 18 or over 61, that is a negative thing. Health Now health might affect. Employment, school or immigrants ability to provide for themselves or their family. A health issue that needs extensive medical treatment. That’s a problem. Let’s say you come down with cancer. God forbid, future medical expenses. Well, you have asthma and you may need to be hospitalized in the future, for it requires continuing care. Private medical insurance that would cover the necessary treatment. Well, that obviates the problem of having a medical condition household. How many dependents do the immigrants have? Listen, if you come from a religious family and I don’t care if you’re Catholic, evangelical, Muslim or Jewish. Chances are you come from a large family. That means your income has to be a whole lot higher. What to get income and assets to focus on income should be more significant than the public. Charge makes seem now for an affidavit support. The petitioner needs to show that their income is what they can maintain. The immigrant at 125 percent over the poverty guidelines. I don’t think that’s it’s enough anymore. You’re really going to have to be a 200 or 250 percent depending on what other factors. So does the immigrant have enough assets to pay for reasonably foreseeable medical expenses? What happens if you’re asthmatic? What? This is not stuff the government was focused on before. Now it is. But that’s not enough. They also want to look at liabilities like mortgage, credit card debt, unpaid child support. They’re looking at everything. What’s your education and skills? What’s your length of employment? You’re authorized to work, but you’re unemployed. That’s a negative factor. Frequency of job changes. How long have you been at this job? How often do you go from one job to the other? What’s your level? What’s your English proficiency? What’s your level of education? Now caregivers are exempt from from this that they don’t have this criteria at all. But listen, they’re looking at everything. Remember, Trump wanted a merit based immigration system. That is in essence what you’re doing here. But you’re doing it without Congress’s approval. They’re doing it. Unilateral.

Andres Mejer :So applying the new rules, three steps, step one. You’ve got to figure out whether a public charge you even apply. So we’re looking at who. What’s the category of immigration status that the immigrant has? And what are they applying for? So what they have today and what are they applying to? So let’s give some examples, Roberto. He’s 68 years old man from El Salvador he has TPS. He’s been in the US over 30 years. He’s working and he’s never received any benefits whatsoever. Now, Roberto has medical problems, including sleep apnea, COPD, diabetes, high blood pressure and lower back pain. Roberto had met effect is his medical condition was so bad he had to reduce his work hours because of itself and he only earned forty thousand dollars last year. It’s enough to pay his rent and utilities, but it’s barely over the poverty guidelines. Now, Roberto’s daughter, just became a U.S. citizen and she wants to help her father become a lawful permanent resident. So applying the public schedule. Step one. The rule applies because although Roberto has TPS and and he’s exempt from TPS. he’s applying for his Green Card Now for the Green Card application. The public charge it does apply Now where remember which rules are we go by? USCIS or Department of State? He can get his Green Card in the U.S. if he lives in certain states because getting TPS as is considered lawful admission to the United States, not New Jersey. But if he’s in the Sixth Circuit, which means Kentucky, Michigan, Ohio or Tennessee, or in the 9th Circuit, which is Alaska, Arizona, California, Guam or Hawaii, any of those states just by having TPS daughter can apply for him in about a year. He could become a lawful permanent resident. But in New Jersey, he will need to have entered legally through some other admission. So either he applies for advanced parole and he could still do it. Doubles out the harder because Trump is trying to get rid of TPS or someone applied for him under 245-I  before April 30, 2001. Otherwise, he needs to travel outside the United States and he may need a waiver because he was likely in the U.S. for more than one year without permission before getting TPS if he asked the consular process. He needs insurance. No one. And his medical condition becomes a big deal unless he’s insured. Number two, if he needs a waiver, he doesn’t qualify for a waiver. His daughter is applying for him. He needs a spouse or a parent who’s a U.S. citizen or lawful permanent resident. And show how they’re going to suffer extreme hardship. So he’s going to have a real problem if he’s if he needs to travel outside the United States. He may just be better off filing it as if it was an adjustment, as if TPS was a legal entry and litigate fight with the government saying, listen, what you’re doing is not right. The third circuit, which includes New Jersey, Pennsylvania, Delaware, should be the same as a 6th to the 9th Circuit. And chances are they’ll you’ll win. But who knows? Litigation is what it is, and it’s hard to predict the outcome. Now, he has a better chance if he can adjust the U.S. ruling council process because he won’t need to worry about a waiver. And he won’t need to worry about insurance. But TPS has medical conditions, never received the benefit but low income and has medical conditions. That’s a problem, particularly in the consular process stage.

Andres Mejer :Now. Secondly, where are they applying in the U.S.? The rules are USCIS. It outside the U.S., it’s Department of State. There are differences, but Department of State is updating their rules in conformance with USCIS. We just haven’t seen them yet. Let’s talk about Eddie. He’s a 29 year old graduate student. He teach. He teaches to pay for tuition since he isn’t eligible for an U.S 2 months. Now, Eddie was born in Mexico and has dad came to the United States as a kid and he married a U.S. citizen month last year. And they have an eight year old U.S. citizen daughter with minor learning disabilities and mild anxiety. Now M.O. works as a teaching assistant. She earns about thirty thousand per year and his daughter receives Medicaid and his wife has medical insurance. Irma receives treatment for severe asthma in just last year. She had to be rushed to the emergency room for an asthma attack because she couldn’t breathe. So let’s apply the public charge test. What who’s being affected by this? We’re talking about Eddie. Eddie has got the doctor. Doesn’t have to worry about the public charge. But what is he applying for? Green Card. OK, Green Card does need is subject to the public charter rule. And for that reason we have to continue with our analysis. Now. Where? What? What do I mean by where? Again, what rule is being applied? Is it in the United States? That is an adjustment of status. Or is it outside the United States through consular process? If he consular processes, he will need a waiver based on these facts. He could show extreme hardship to his U.S. citizen wife. Because she has. She has a medical condition there. There’s financial issues and they have a child also with a medical condition as a single mom. It’s going to be very difficult for her without any Now, he will still be proof of medical insurance if he’s going to consular process. But since earbud is insured through work, well. She should be. She should be able to add Eddie, since Eddie is a doctor, holder has work authorization and has a social. So it shouldn’t be difficult to include him. Although Eddie didn’t himself get any benefits. The fact that his daughter receives Medicaid is relevant because it is public assistance. It doesn’t disqualify him on its own. But. The governor of Mesa may consider him as possibly need public assistance in the future. So they’re going to need a joint sponsor because they’re low income. Also, the government could use early Burma’s Asma to find that she’d likely will not be able to support any incase she has a condition. So again, we’ll need a joint sponsor, but Eddie likely will be able with a good attorney. Eddie would likely become a Green Card older. It’ll just be harder in a variety of circumstances.

Andres Mejer :Step three. What are the positive and negative factors? Carina is a lawful permanent resident for the past twelve years. Her son is a U.S. citizen and he applied for her. Now she’s 72 years old and recently retired from a job as a cashier. Now Corrina receives Medicare and Medicaid, but no government benefits, no financial benefits. Now Carina sister recently became ill and she wants to travel back to India for a few months. Carina is worried that she leaves. She won’t be able to come back to United States to be with her son and grandchildren. So let’s apply the public charge tester, who? Carina is a lawful permanent resident. She’s not subject to the public charge as long as she reenters the United States within 180 days. If she stays more than 180 days, she’s now applying for admission again. And now she’s subject to the public charge rule. Step two where? Well, she’s outside that state’s comeback games, that’s console the process, she needs to worry about the rules, the Department of State and how Now the public charge is principally focused on cash assistance or long term care. She has insurance and she hasn’t received any cash assistance, so she shouldn’t be found to be a public charge unless circumstances change. She will likely be able to come back in. Thank you very much for listening to us. My name is Andrés Mejer and I’m an immigration attorney. And again, anybody that wants to apply for their Green Card must do so as quickly as possible before this new rule goes into effect because it will be a lot harder. It remains to be seen how it’s going to be applied. What it really means is you need to be able to state and make a really good and compelling story for the same reason that all are waiver cases or just. Well, I can’t think of it. We’ve only had one denial in the past five years in probably close to 100 petitions. Why is that? Because we’re good at telling stories and we’re also your story in particular, and we’re good at figuring out what’s your circumstances. Listen, you need here’s what you need to do in order to be able to apply and work with you to do that. This is gonna be the same thing. Public charge is something they’re going to use to deny you. So you need to be overly cautious in how you apply and you need to start making changes like getting insurance, increasing your income or getting a joint sponsor to be able. You don’t want to find out once you’re outside the United States that you’re being denied because you’re a public charge.

Andres Mejer :Please subscribe to our channel and share this video with your friends, because this rule is game changing. And I don’t mean that in a positive way.