Get in touch
949-316-0078
info@santolloydlaw.com
How Does Receipt of Public Assistance Affect My Application for an Adjustment of Status (AOS)?
Kevin Swartz • Feb 04, 2022
Click here to read this article in Portuguese
The answer to this question changed considerably after President Biden rolled back some of former President Trump’s harsh immigration policies. In 2019, Trump had issued an executive order known as “The Public Charge Final Rule,” which caused the receipt of most public assistance programs to negatively impact AOS applications, and with few exceptions (e.g. emergency services and Medicaid recipients who were pregnant or under the age of 21).
Under the current administration, your receipt of public assistance may continue to negatively affect your AOS petition, but only under limited circumstances. It depends on 1) what your current immigration status is; 2) the type of public assistance you are receiving; and 3) what your personal circumstances are.
If your current immigration status is that of asylee or refugee, then your past or current receipt of public assistance will generally not affect your application for adjustment of status (AOS). If you are not an asylee or refugee, the following applies.
With respect to the type of assistance received, United States Customs and Immigration Services (USCIS) will evaluate whether your past or current receipt of public assistance indicates that are likely to become a “public charge,” meaning someone who is primarily dependent on the government for subsistence. Your application will be denied if, at the time of your application, USCIS finds that you are currently a public charge or will likely to become a public charge at some point in the future.
In making its determination, USCIS may consider only certain factors, however: the extent to which you relied on 1) public assistance for income maintenance; and 2) whether you have required long-term care in an institution at the government’s expense. The following types of public assistance fall within the first category (public assistance for income maintenance) and will negatively affect your application in certain situations:
- Supplemental security income (SSI);
- Temporary Assistance for Needy Families (TANF) cash assistance; state and local cash assistance programs that provide benefits for income maintenance (often called ‘general assistance’ programs);
- Programs to support applicants who are institutionalized for long-term care, e.g. in a nursing home or mental health institution)
The longer you rely on cash assistance or institutional care listed above, the more heavily USCIS will weigh it against your application. But, even if you have relied on one of the public assistance programs listed above, or required long-term institutional care for a period of time, USCIS may not necessarily deny your AOS application. USCIS is required to evaluate this information within the context of the totality of all your personal circumstances. Your personal circumstances include many different factors, including but not limited to: your age, health, family situation, financial status, the resources available to you, education, and vocational skills.
If you received non-cash benefits (other than institutionalization for long-term care) or special-purpose cash benefits that were not for income maintenance, USCIS will not weigh that against you. The following is a non-exhaustive list of non-cash benefits that will not negatively affect your application:
- Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases;
- Use of health clinics, short-term rehabilitation services, and emergency medical services (other than support for long-term institutional care;
- Children’s Health Insurance Program (CHIP);
- Nutrition programs, including food stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
- Housing benefits;
- Child care services;
- Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
- Emergency disaster relief;
- Foster care and adoption assistance;
- Educational assistance, including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
- Community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
- State and local programs that are similar to the programs listed above
How will my AOS application be affected if my family member is the one who is receiving public assistance, not me?
If your family member currently or previously relied on public assistance, but not as their sole means of financial support, USCIS will not weigh that benefit against you in evaluating your application. But if your family member currently or previously relied on public assistance as their sole means of financial support, then USCIS will make a case-by-case determination. They will evaluate your family member’s public assistance along with the totality of your personal circumstances to determine whether you are likely to become a public charge at some point in the future.
Can Trump’s old policy be reinstated if Biden loses the next election?
While it is very possible that the next republican administration may reject Biden’s current policy and once again disfavor AOS petitions from public assistance recipients, such a change will unlikely apply retroactively to AOS petitions filed during the current administration. Trump’s 2019 executive order, the “Public Charge Final Rule” applied only to applications that were filed on or after that executive order went into effect. Therefore, assuming the next Republican administration reissues the same executive order as Trump’s 2019 “Public Charge Final Rule,” that change will apply only to those petitions filed after that executive order is reissued.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
The EB-5 Immigrant Investor Visa Program has long stood as a beacon of opportunity for those seeking to establish roots in the United States. However, in recent years, its allure dimmed due to concerns surrounding integrity, program abuse, and uncertainties regarding its future. Yet, with the passage of the EB-5 Reform & Integrity Act of 2022 , the EB-5 program finds itself on the brink of a renaissance, once again capturing the attention of investors worldwide. For those unfamiliar, t he EB-5 program offers foreign investors and their families a pathway to permanent residency in the United States by investing a minimum amount in a qualifying U.S. business venture . This investment must create or preserve a certain number of jobs for American workers. Historically, the program has been popular among affluent individuals seeking not only residency but also the opportunity to contribute to the U.S. economy. However, in recent years, the program faced criticism and scrutiny due to allegations of fraud, abuse, and inefficiencies. Investors became wary, and the program's popularity waned. Prospective applicants were hesitant to commit significant funds to a program plagued by uncertainties and bureaucratic hurdles. Enter the 2022 EB-5 Reform and Integrity Act . This landmark legislation addresses many of the concerns that have plagued the program in recent years. Among its key provisions are increased investment thresholds, stricter oversight measures, and reforms aimed at promoting integrity and transparency within the program. One of the most significant changes introduced by the reform act is empowering the United States Citizenship and Immigration Services (USCIS) to more effectively monitor and investigate potential instances of fraud or abuse. Additionally, the act introduces measures to streamline the application process, reducing bureaucratic red tape and expediting the adjudication of EB-5 petitions, resulting in faster processing for legitimate investments. The passage of the 2022 EB-5 Reform and Integrity Act has injected new life into the EB-5 program, reigniting interest among investors and immigration stakeholders alike. With its enhanced integrity measures and streamlined processes, the program once again represents a compelling opportunity for those seeking to pursue the American dream. Already, we are witnessing a resurgence of interest in the EB-5 program from investors worldwide. Developers and regional centers are seizing the opportunity to capitalize on the renewed enthusiasm, presenting a diverse array of investment opportunities across various industries and regions. Moreover, the EB-5 program's revitalization holds significant implications for the U.S. economy. By attracting foreign investment, the program has the potential to create jobs, spur economic growth, and facilitate the development of communities in need. Furthermore, it underscores the United States' commitment to welcoming and harnessing the talents and resources of immigrant investors. The passage of the 2022 EB-5 Reform and Integrity Act marks a pivotal moment in the history of the EB-5 program. By addressing longstanding concerns and implementing comprehensive reforms, the act has restored confidence in the program and positioned it for a prosperous future. As investors and developers alike embrace the opportunities presented by the revitalized EB-5 program, we anticipate a resurgence in interest and activity, reaffirming the program's status as a cornerstone of American immigration policy and economic development. I encourage any prospective investors to meet with one of our skilled attorneys to discuss the possibility of securing permanent residency, and eventually citizenship, through a qualifying investment under the EB-5 Immigrant Investor Visa Program. We look forward to working with you!
The U.S. Constitution protects all immigrants, including undocumented immigrants while participating in protests in the U.S. Here is a list of some of the rights covered in the U.S. constitution to consider when you are participating in protests: Right to free speech. The First Amendment prohibits the government from restricting your right to free speech. People have the right to participate in protests, marches, and demonstrations. Right to be free from retaliation. The First Amendment prohibits the government from retaliating against you for exercising your rights such as your right to free speech. Right to remain silent. The Fifth Amendment protects you from self-incrimination and provides the right to remain silent. Right against unreasonable search and seizure. The Fourth Amendment protects you against unreasonable searches and seizures. Right to speak to a lawyer. If you are arrested or detained, you have the right to speak to a lawyer. Keep in mind, if you are undocumented and you are participating in protests, you are at higher risk of being detained by immigration officials if they are present at the protest. If you are undocumented make sure you have a plan in place if you are arrested or detained by law enforcement or immigration officials. It is important to take precautions and if you are arrested or detained you should contact an attorney immediately. If you have questions, please schedule a consultation with one of our experienced attorneys and we will be more than happy to assist you.
The latest policy alert, PA-2024-05, issued by the U.S. Citizenship and Immigration Services (USCIS) on March 21, 2024, brings revisions to the USCIS Policy Manual, specifically focusing on expediting requests. These updates aim to simplify and elucidate the process for applicants, particularly those facing emergencies or urgent humanitarian needs. The primary goal is to make it easier for applicants to understand how to request expedited processing for their various submissions, including applications, petitions, appeals, or motions, especially in cases concerning government interests or urgent situations. While USCIS has historically permitted immigration benefit seekers to request expedited application processing in specific circumstances, the process has frequently been perceived as unclear, with decisions made arbitrarily on a case-by-case basis. The recent update seeks to rectify this by providing clarity and uniformity to the process and establishing explicit criteria and documentation standards. In order to request expedited processing, applicants need to adhere to a more defined procedure. This involves submitting thorough documentation and illustrating the urgency or government relevance of their case. The recent update also explains how USCIS reviews these requests, offering applicants a better grasp of the process. The update introduces special measures for speeding up the processing of Form I-131 (Application for Travel Document) in emergency situations. This acknowledges the urgent need for certain applicants to travel. The policy also acknowledges that expedited requests may be evaluated if there is evident USCIS error, aiming to uphold fairness and accountability within the processing system. These changes aim to make the expedited request process more transparent and understandable for applicants and their representatives. In summary, USCIS's revision regarding expedited requests signifies a notable advancement in rendering the immigration process more transparent and attentive to applicants' requirements. By comprehending these updated guidelines, applicants and their representatives can more effectively navigate the expedited request procedure, ensuring that urgent cases receive due consideration. If you believe you qualify for expedited processing under the recent USCIS policy updates, feel free to contact our office, and we will be more than happy to assist you. FONT : https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5