Discussion Points for Punto Legal –September 04, 2019
1. New Public Charge Rule.
We are going to continue to talk about the new public charge rule today. Recall that the new rule was published on August 14, 2019, but will not go into effect until October 15, 2019. It does not apply to immigration applications filed before October 15, 2019. Nor does it apply to pending adjustment of status applications and new applications postmarked before October 15, 2019. The public charge rule does not apply to the U visa program. Public charge does not apply to people who are already permanent residents and does not apply when permanent residents renew their green card. There is not a public charge test for citizenship.
At least, six lawsuits have been filed against the rule.
When we talk about the public charge rule, the last thing to worry about are the list of public assistance programs associated with the rule. That is because you will never have received any of the benefits, if you are undocumented. The starting point should be the heavily weighted negative and positive factors.
Heavily weighted negative factors are:
Unemployment. If you are authorized to work and are not working or going to school, unemployment is a heavily weighted negative factor. Suppose that Jesus, who is a U.S. citizen, over 21, wants to immigrate his mother who has work authorization under the U visa program. But his mother is unemployed. Mother will not become a resident unless she goes to work.
Medical condition requiring extensive medical treatment and no health insurance. Suppose Marie is a U.S. citizen, over 21, who wants to immigrate her father. Her father gets kidney dialysis and needs a kidney transplant. Marie cannot provide her father with health insurance. Her father will not become a permanent resident because he has a medical condition requiring extensive medical treatment.
Now let’s explore the heavily weighted positive factors.
Household income. If the household the intending immigrant will live in has income over 250 percent of the poverty line, this is a heavily weighted positive factor. Jorge is a U.S. citizen. His wife and 3 children live in Mexico. He wants to immigrate them to the U.S. Jorge’s household will have 5 people in it. Jorge earns $78,000 per year. This is more than 250 of the federal poverty guideline for a family of 5. His wife and children will not be regarded as being public charges.
2. Public Charge Scenarios
· Hector is a U.S. citizen who lives in Glenwood Springs. Hector marries Maria and wants her to become a permanent resident. Maria came to the U.S. in 2007 with a visa and overstayed her visa. Maria is 27-years-old; speaks English; has a high school diploma and is in good health. Hector files an affidavit of support with a federal income tax return showing a total income of $30,000.00. Is Maria a public charge? No, because she is not likely to need public assistance benefits in the future.
· Same facts. Maria is 27; speaks English; has a high school diploma; and is in good health. Hector earns more than 125% of the poverty line. Maria has DACA, but she has not worked for 3 years and is not looking for a job. Is Maria a public charge? Yes. Maria is authorized to work with DACA. Her unemployment is a heavily weighted negative factor.
· Same facts. Maria is not employed, but she is going to college full-time at CMC to become a nurse. Is Maria a public charge? No, because she is going to college and will find work as a nurse.
· Same facts. In 2017, Maria was driving her car on the Vail Pass in the winter. She was seriously injured when her car went off the icy road and down a cliff. Maria was taken to the Vail hospital where she stayed for 3 days. Emergency Medicaid paid the $150,000 medical bill. Thankfully, Maria no longer needs extensive medical care. Is Maria a public charge? No. Emergency Medicaid does not count against you.
· Same facts. Maria is in nursing school. She had a very serious car accident on Vail Pass in 2017 that injured her spinal cord. She is now a paraplegic and needs extensive medical treatment. Hector has no private health insurance for her. Is Maria a public charge? Yes, the need for extensive medical treatment coupled with no private health insurance is a heavily weighted negative factor.
3. Now let’s change the scenario.
· Jesus is a U.S. citizen who lives in owns a marble and granite shop in Eagle. He married Claudia in Mexico and wants to fix his papers. Claudia will fix her papers at the U.S. Consulate in CDJ. Last year the Jesus earned over $90,000 in profit. Claudia, on the other hand, has never worked; she has only 6 years of education and cannot speak English. Is Claudia a public charge? No, because the household income for Claudia and Jesus is 250 percent or more of the federal poverty guidelines.
· Things work out well for Claudia and Jesus. Claudia gets her green card. The marble and granite business is doing well. Claudia learns English. Three and one-half years after she became a resident, Claudia becomes a citizen. She now wants to immigrate her mother. Her mother is 55 years old; does not speak English; does not plan to work in the U.S; but is in good health. Is Claudia’s mother a public charge? No, because Claudia’s household income is 250 percent or more.
4. Consular Processing.
For people fixing their papers at the U.S. Consulate at Juarez, I have unhappy news. The wait between the time your case is ready to go, that is, "documentarily qualified," and time of you interview has now gone to 11 months. This is unsatisfactory. You should complain to anyone who will listen. On September 4 at the library in Rifle, you can complain to Senator Bennet’s regional representative about your immigration delay. Believe it or not, this representative actually wants to hear your complaints. If you want more information, give us a call.
5. PIP Program.