For those pediatric nurse practitioners, family nurse practitioners and other pediatric-focused ARPNs who have the privilege of working with immigrant families, these can be challenging times. It's important for providers to keep up to date on available information about public charge rules to best counsel patients and their families.
Public charge is not new, it has been part of federal immigration law for more than a century. It is a test to determine if someone applying for lawful permanent residence (LPR) status, commonly referred to as a green card or LPR, through a relative or a visa to enter the United States is likely to depend on public benefits as their main source of support in the future. If the person is found to be a public charge, their application can be denied.
The meaning and application of public charge has been expanded by the current administration. On Feb. 24, 2020, public charge regulations published by the Department of Homeland Security (DHS) and the U.S. State Department went into effect. Adjudicators, or those who review LPR and visa applications, must not predict whether a person is likely to become a public charge in the future based on their age, health, family status, income, resources, skills and education. The analysis of these factors is called the “totality of circumstances” test. Lawful permanent residents are not affected unless they leave the U.S. for more than 180 days and then seek to reenter.
The new regulation redefines a public charge as a non-citizen who receives one or more public benefits as specified in 8 CFR § 212.23, “Exemptions and waivers for public charge ground of inadmissibility” for more than 12 months in the aggregate within any 3-month period. The test counts the months of benefits receipts so that receiving two benefits in one month is counted as two months of benefits. This will make it more difficult for low and moderate-income people to be successful. If a family household income is 125 percent below the federal poverty level, if you are a child or a senior, if you have limited understanding of the English language, if you have certain health conditions, if you have less than high school education, if you have a poor credit history or if you have received benefits in the past, these can be factored negatively against your application. Your sponsor’s affidavit of support will also be considered. In addition, the new rule expands the list of public assistance programs that may be considered as negative factors and excludes anyone who is deemed more likely to use healthcare assistance, nutritional programs, cash programs or federal housing programs in the future.
The administration's policies sparked legal challenges in the federal court system. The Supreme Court only ruled on the legality of the nationwide injunction and did not rule on whether the public charge rule itself is legal. NAPNAP will continue to advocate for providing access to high-quality, evidence-based care to improve the health and well-being of all children.
It only affects people applying to come to the U.S. as a lawful permanent resident. It does not apply to humanitarian immigrants, refugees, asylum seekers, those who have been trafficked, survivors of domestic violence or other serious crimes, special immigrant juveniles and certain other individuals. For the full list of exemptions and waivers for public charge refer to 8 CFR § 212.23.
If you know of individuals who wish to apply for a visa or LPR status, they should consult an immigration attorney. Check for help in locating legal services in your local area.
Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), Children's Health Insurance Program (CHIP), school meal programs, food banks, shelters, state or local health care programs, including school-based services. Benefits that help children will not count against you. Visit the U.S. Citizenship and Immigration Services webpage for more details.
COVID-19: USCIS encourages all those, including aliens, with symptoms that resemble COVID-19 (fever, cough, shortness of breath) to seek necessary medical treatment or preventive services. Such treatment or preventive services will not negatively affect any alien as part of a future public charge analysis.
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