Employment-Based Immigrants Not Likely to Be Flagged as Public Charges

Updated rule will add paperwork burden for employers, workers

Roy Maurer By Roy Maurer March 11, 2020

​Employment-based immigrants to the U.S. are unlikely to be negatively impacted by the Trump administration's controversial "public charge" rule, other than being subject to additional information collection and paperwork. The regulation went into effect Feb. 24, and multiple lawsuits against it have been filed.

The updated rule, meant to screen out permanent residence applicants deemed at risk of becoming dependent on government benefits (referred to as being a public charge), expands the definition of who can be disqualified from immigrating to the U.S. Applicants who lack financial self-sufficiency may be denied, meaning family- and marriage-based applicants may not receive green cards.

But foreign national workers sponsored by U.S. employers shouldn't panic, as they are not generally eligible for public benefits and either sit above the $21,137 annual income threshold (in the case of higher-paid H-1B and EB workers, for example) or are not eligible for green cards (in the case of lower-paid H-2A and H-2B workers, who would have to be sponsored by an employer for another, permanent job in order to be eligible, which rarely happens).

"At a high level this will separate green card applicants into two groups—those with means and those with more modest means," said Anantha Paruthipattu, founder and principal attorney at Paruthipattu Law Firm, based in Herndon, Va. "It will be less impactful on employment-based immigrants, except for the paperwork and cost. The people I sponsor for green cards, for example, are typically making well over $100,000 annually and will not become a public charge."

Documenting the prior use of potentially disqualifying U.S. public assistance such as food stamps or Medicaid and reporting financial resources shouldn't be worrying for employment-based immigrants. But the possible future use of government benefits could be a concern for those with long-term pending green card applications.

"No one knows what will happen in the future, and if the processing delays for green cards continue to take as long as they have been—sometimes over a decade—will the applicant be able to show financial self-sufficiency throughout that period?" Paruthipattu asked. "What if they fall on hard times, are not employed or mess up their credit history? Or they get older and fall into a serious health situation? The uncertainty of not knowing exactly how the information could be used in the future is causing quite a bit of stress."

The rule is not retroactive and will apply only to applications and petitions filed after Feb. 24.

[SHRM members-only toolkit: Obtaining U.S. Employment Visas]

The Rule Explained

The public charge concept was first established by Congress in 1882 in order to allow the U.S. government to deny immigration to anyone who "is likely at any time to become a public charge," but Congress failed to define what that meant.

The Clinton administration in 1999 issued the first guiding specifics. Being a public charge was demonstrated by either using public cash welfare or government-subsidized long-term care. But very few immigrants have ever been denied green cards on public-charge grounds, because most are not eligible for welfare benefits and are generally required to have a financial sponsor.

The Trump administration's updated regulations enlarge the list of disqualifying government benefits to include use of food stamps, rental and housing assistance, and Medicaid. The new rule also provides immigration officers with an expanded list of criteria to consider when determining whether a visa applicant is likely to become a public charge at any point in the future.

"To make that determination, officers will review the totality of the circumstances, including an applicant's income, age, health, family status, assets, credit scores, liabilities, education, and skills including English language, the visa classification and receipt of public benefits," said Sarah Barnhill, an attorney in the Omaha, Neb., office of Jackson Lewis.

She said that negative factors in that assessment will include receipt of public benefits for more than 12 months within any 36-month period; being unemployed and without a reasonable prospect of employment; and having a diagnosed medical condition that will require extensive medical treatment and no financial resources to pay for it. On the other hand, positive factors will include things like household income being above the threshold; a history of employment in the U.S.; and private health insurance for use in the U.S.

Paperwork Burden to Lengthen Processing

Foreign nationals and their employers should expect preparation and processing times to grow as more documentation is required. Green card applicants must now complete the new Form I-944, Declaration of Self Sufficiency. Temporary visa holders applying for an extension or change of visa status will also have to fill out a new section on their applications about past use of public benefits, even though in most cases they wouldn't have used any.

"For practitioners, employers and beneficiaries, the implementation of the public charge rule will dramatically affect the preparation and submission of petitions and applications," said Kristen Ng, an attorney with Greenberg Traurig in McLean, Va.

Paruthipattu said that "the government will be collecting information on assets and liabilities, IRS transcripts, credit reports, health information—but it's unclear how the information will be used and what standards will be applied. The adjudication process will likely be delayed, and cases could receive RFEs [requests for evidence] based on these data points."

Immigration officers will be burdened as much as the applicants and attorneys, he added. "Adjustment of status interviews currently take about one hour. With the new requested information, you're looking at least at another 30 or 60 minutes. Instead of officers completing eight interviews a day, that could be scaled down to four a day."

The Department of Homeland Security (DHS) said that "adjudicators will be appropriately trained on Form I–944 and will make their determinations in as timely a manner as possible."

Applying at Consulates Abroad

The DHS rule does not apply to visa applicants from abroad, but the Department of State began implementing its own public charge standards Feb. 24, through the department's Form DS-5540, Public Charge Questionnaire, now required for green card applicants at U.S. consulates overseas. 

Foreign nationals applying for green cards abroad will be required to submit information about income, financial assets and liabilities, health insurance coverage, and receipt of public benefits, among other questions. Applicants who have not yet had their visa interviews could be asked to submit this information.

Again, those with employer sponsorship should not be worried, as they have not likely used U.S. public benefits and have good paying job offers.



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