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The Department of Homeland Security (DHS) has published a proposed rule in the Federal Register that redefines the “public charge” ground of inadmissibility under the Immigration and Nationality Act for immigrants deemed likely to become dependent on government assistance. The rule closely mirrors a draft rule that the agency posted to its website Sept. 22.
Key points:
Background: Under current guidelines, adjudicators only consider cash benefits and generally make a finding of inadmissibility on “public charge” grounds if the applicant relies on cash benefits for more than 50 percent of their income. Under the proposed rule, adjudicators may consider both cash and non-cash benefits, such as Medicaid (except for emergency Medicaid and certain education-related disability services); Medicare Part D low-income prescription drug subsidy, food stamps (Supplemental Nutrition Assistance Program, or SNAP); Section 8 housing vouchers, rental assistance and subsidized public housing; and benefits for institutionalized long-term care.
BAL has produced an FAQ on the proposed regulation, available here.
BAL Analysis: Employers and individuals are encouraged to participate in the public comment period before it closes on Dec. 10, as it is an opportunity to help shape policy and it is not uncommon for the government to revise its proposal in response to feedback from stakeholders. BAL projects that the earliest a final rule could take effect is March 2019. This timeline does not take into account the likelihood of litigation challenging these controversial provisions, which could delay implementation of a final rule. The proposal to require applicants for change and extension of nonimmigrant status to address public charge issues could result in further delays in processing these applications.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
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