New public charge rules could slam the doors closed on everyone.

Sunday, August 12th, 2018
By: Jonathan MontagJ.D.

The problem with medical insurance is that everyone who uses it will face the disaster it is meant to forestall – death. When you buy fire insurance, except for people like rural and semi-rural Californians, the insurance is to protect against a remote possibility of fire. Similarly, when you buy flood insurance, except for people like those who live in places like Houston, a giant floodplain, the insurance is to protect against the remote possibility of fire. When you buy health insurance, the insurance is to cover the cost of serious, death-threatening disease or injury. It may cover a couple of stitches for a kitchen accident, but if that were the worst you faced in life, you’d likely take the risk and pay out of pocket. It is mortal illness or injury that is the reason for health insurance. As it is the certainty that you will die, and likely face a near-death experience before death, that the health insurance industry is simply a syphon for money that should be going to health care. If every house in a town was guaranteed to burn down, fire insurance would be unnecessary or way to expensive to purchase. Essentially everyone would have to pay the replacement cost of their property in insurance rates or the fire insurance companies would lose more than they pay out. Fortunately, fires are rare, unlike dying, so fire insurance has a purpose.

Immigration law has a similar, and related conundrum, the public charge ground of inadmissibility and removability. The Immigration and Nationality Act, at § 212(a)(4) makes inadmissible a person who “is likely at any time to become a public charge.” At INA § 237(a)(5), the Act makes deportable, “any person who, within five years of entry, has become a public charge from causes not affirmatively to have arisen since entry is deportable.”

The problems of definition of public charge are the first challenge. Parents must send their children to school. Schools are a public benefit. Public parks are a public benefit. When there was a health “mandate,” not taking government health benefits was against a law and subjected one to a fine. Seniors get government health care. Two thirds of Californians get public health care. More than 12 percent of Americans get food stamps, about 40 million (40,000,000) people. We have an unspoken social contract in the United States. We allow businesses to underpay their workers and profits to flood to the top one percent instead and then provide meager subsidies so people can eat and, to a lesser extent, have a place to live and health care enough so they don’t die on the street.

Unless you are “lucky” enough to get decapitated by a sniper or drop dead of a heart attack, at some point nearly every normal person is going to face medical costs that will strip them of their wealth. Then the government will step in. Thus, it is likely that everyone will at some point become a public charge. As this is a ground of inadmissibility as the statute forbids entry to anyone “likely at any time to become a public charge,” a strict interpretation of the statute would bar all immigration. That was not how the law was interpreted.

As discussed in an informative article by the inimitable Charles Wheeler, the current interpretation for USCIS, affecting those becoming permanent residents in the United States, is that public charge inadmissibility is an issue:

… if [the prospective immigrant] has become “primarily dependent on the government for subsistence, as demonstrated by either (I) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” 64 Fed. Reg. 28689 (May 26, 1999). The Service defined the term “public cash assistance for income maintenance” as including only three forms of benefits: (1) Supplemental Security Income (SSI) for the aged, blind, and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance; and (3) state and local cash assistance programs, usually known as general relief or general assistance. Id. at p. 28692. Programs that support persons who are institutionalized for long-term care, including Medicaid, are typically provided to those in a nursing home or mental health institution. The proposed rule explained that “institutionalization for short periods of rehabilitation” does not fit this definition.

The State Department, Wheeler explained, instructed its officers that a properly filled out and qualifying affidavit of support packet (part of the bundle of forms and documents required to adjust status) normally is considered sufficient to satisfy the not-being-a-public-charge requirement. 9 FAM 302.8-2(B)(now deleted).

The State Department abandoned its old instructions to officers for new ones, found at 9 FAM 302.8-2(B)(3):

9 FAM 302.8-2(B)(1) (U) What is “Public Charge”
a. (U) In General:
(1) (U) An applicant is likely to become a public charge if he or she is likely, at any time after admission, to become primarily dependent on the U.S. Government (Federal, state, or local) for subsistence. This means:
(a) (U) Receipt of public cash assistance for income maintenance (see paragraph b below);
(b) (U) Institutionalization for long-term care at U.S. Government expense (see paragraph c below).
(2) (U) When considering the likelihood of an applicant becoming a public charge, you must take into account the totality of the alien’s circumstances at the time of visa application, including at a minimum, age, health, family status, assets, resources, financial status, education, and skills. (See 9 FAM 302.8-2(B)(2).)
(3) (U) An applicant required to submit an affidavit of support who fails to submit a sufficient affidavit of support is inadmissible as a public charge. (See 9 FAM 302.8-2(B)(3).)
b. (U) Defining Public Cash Assistance: In the “public charge” context, “public cash assistance” for income maintenance includes:
(1) (U) Supplemental security income (SSI);
(2) (U) Cash temporary assistance for needy families (TANF), but not including supplemental cash benefits or any non-cash benefits provided under TANF; and
(3) (U) State and local cash assistance programs that provide for income maintenance (often called state general assistance).
c. (U) Institutionalization for Long Term Care:
(1) (U) For INA 212(a)(4) purposes, “institutionalization for long-term care” refers to care for an indefinite period of time for mental or other health reasons, rather than temporary rehabilitative or recuperative care even if such rehabilitation or recuperation may last weeks or months.
(2) (U) In addition, USCIS notes that “public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.” See USCIS, Public Charge Fact Sheet, April 29, 2011.

9 FAM 302.8-2(B)(2) (U) Determining “Totality of Circumstances”
a. (U) In General:
(1) (U) In making a determination whether an applicant is inadmissible under INA 212(a)(4)(B), in every case, you must consider at a minimum the applicant’s:
(a) (U) Age;
(b) (U) Health;
© (U) Family status;
(d) (U) Assets, resources, and financial status; and
(e) (U) Education and skills.
(2) (U) These factors, and any other reasonable factors considered relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination.
(3) (U) Value of the Affidavit of Support: A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of the circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis, which requires the consideration of the factors listed in paragraph (1) above.
b. (U) Health:
(1) (U) You must take into consideration the panel physician’s report regarding the applicant’s health, especially if there is a prognosis that might prevent or ultimately hinder the applicant from maintaining employment successfully or indicate the likelihood that the alien would require institutionalization at government expense. As noted above in 9 FAM 302.8-2(B)(1) paragraph ©, the likelihood that an applicant will receive Medicaid that is used to support applicants who reside in an institution for long-term care – such as a nursing home or mental health institution – may be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations.
(2) (U) Additionally, certain health issues which might affect employment, increase likelihood of future medical expenses, or otherwise affect the applicant’s ability to adequately provide for himself or herself or dependents should increase the burden on the applicant to provide evidence that they will not become a public charge.
(3) (U) This could include the need to provide proof of medical insurance or other ability to pay medical expenses in the United States.

Now, it appears USCIS is going to propose new regulations also expanding what goes into a public charge determination.

If these regulations are promulgated properly (something so far the Trump administration appears wont to do), an expansive and punitive interpretation of public charge could severely limit immigration to only the well-healed or the families of the well-healed – well-healed enough to be able to pay for long-term elderly care for themselves and the person they are immigrating. Otherwise, how could anyone satisfy the requirment that  they won’t get injured or sick, age, and die and not take public money in the process? The end result could very well be virtually no immigration to the United States. Isn’t that what they were after all along? Posted August 12, 2018.


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