By Emmanuel Olawale, Esq.

The U.S. Department of Homeland Security announced a new affidavit of support rule on August 14, 2019, known as the “public charge” rule, which is slated to be effective on October 15, 2019.

There is an existing rule about public charge and affidavit of support for potential immigrants. This rule has been in place since the 1999.  Under the current law, a petitioner must prove to the United States Citizenship and Immigration Services (USCIS) that the person they are filing for will not become a public charge by presenting copies of their most current duly filed federal income taxes, W-2 forms, pay stubs, letter from their employer and proof of other assets to show that their income is 125% above the Federal Poverty Guidelines depending on their family size.  If the petitioner’s income is below the guidelines, she can have another person who is either a United States citizen or permanent resident step in as a joint sponsor by presenting the same evidence to show that their income and assets are above the poverty guidelines based on their family size.

“The new public charge law is seeking to cure ailments that are non-existent in order to make it very difficult for immigrants from poor countries (most non-western countries) from obtaining permanent residency in the United States even if they are immediate relatives of United States citizens”

The person signing the affidavit of support is like a co-signer to a loan, but in this case, there is no exchange of cash, they are only guaranteeing to the federal government that the intending immigrant will not become a public charge or live off public benefits like food stamps, Medicaid and so forth.  In the event that the intending immigrant applies for any of the public benefits and the government provides such benefit, the government has the right to seek reimbursement from the person or persons who provided affidavits of support for the immigrant.  The sponsors are in jeopardy of reimbursement until the immigrant becomes a U.S citizen.

It should be noted, however that most immigrants do not qualify for Medicaid in most states, Medicare and Social Security Income or benefits, but are qualified for Section 8 Housing Assistance and Public Housing.

The new public charge law is seeking to cure ailments that are non-existent in order to make it very difficult for immigrants from poor countries (most non-western countries) from obtaining permanent residency in the United States even if they are immediate relatives of United States citizens.  It will affect intending immigrants from countries that the president referred to as “shit hole” countries, countries where the poverty and unemployment rates are very high.

Under the new rule, it will be easier for immigration officers to deny immigrant visas if they feel that the intending immigrant is likely to become a public charge in the future based on the intending immigrant’s current financial status, level of education, skills, age, health and assets.  If the intending immigrant is present in the U.S., they will consider whether she has received a public benefit for more than 12 months in the aggregate within a 36-month period, this will most likely affect those who already have green cards.

The new rule stipulates that immigrants with income more than 250% of the Federal Poverty Guidelines will not be affected.  However, those who do not meet this stringent wealth test, will be at the peril of this rule. However, asylees, refugees, humanitarian visa holders and employment-based immigrant visa applicants are exempt from the new rule.

Over a dozen states have filed lawsuits seeking to block the new rule from going into effect because of its discriminatory nature. The new rule, if it goes into effect will penalize poor permanent residents or those who fall on hard times because of job loss or inability to obtain employment and seek to use government assistance for housing or medical purposes.  They face the danger of losing their permanent residency or might be disqualified from becoming U.S. citizens if they had used any of the government assistance enumerated by the rule.  It will exclude immigrants and immediate relatives of U.S. citizens from poor and developing countries.

The rule gives the government the authority to deny immigrant visas based on the assumption that the intending immigrant will not be self-reliant, will not work hard to improve her economic status or avail herself of the ample opportunities available in this country to improve their educational and financial status in the United States.  This is a discriminatory, arbitrary assumption because most immigrants are hardworking and are willing to take on jobs that most U.S. citizens deem to be un-dignifying.                                                 (Emmanuel Olawale is Columbus-Ohio based Attorney. Email: emmanuel@olawalelaw.com)