On October 11, 2019, the US Department of State (“State Dept”) published a new public charge rule, to go into effect in 60 days, which applies to almost all immigrant visa applications. See, 84 Fed.Reg. 198, at 54996-55015. The new State Dept rule closely tracks the DHS public charge rule, which is currently enjoined by a federal court. For the time being, all applicants for adjustment who apply within the US to USCIS for their greencards are still subject to the old rule, which relies on the affidavit of support and a mathematical formula.
Even though the federal court has prohibited DHS from implementing their public charge rule until a final decision on the case, the State Dept is a separate government agency, and the federal court injunction does not apply to it. The State Dept processes immigrant visas for foreign nationals outside the U.S. Once they have an interview at the US Consulate abroad and receive their immigrant visa, they then enter the US as permanent residents.
The Consular Officer (“CO”) must consider all positive and negative factors in the “totality of the circumstances”, to determine if the applicant is likely to become a public charge “at any time”. The State Dept rule closely tracks the new DHS rule, and creates positive and negative factors for the Consular Officer to consider. Factors include the following:
1) Health and health insurance are prominent among the factors. Having health insurance (or prospect of obtaining private health insurance) or the “financial resources to pay for reasonably foreseeable medical costs” is repeatedly underlined as important, when discussing various factors. The State Dept considers as a heavily weighted negative factor, should the applicant require “extensive medical treatment or institutionalization or the condition will interfere with the alien’s ability to provide care for him-or herself, to attend school or to work” and lacks health insurance or the resources to pay for medical care. Chronic medical conditions or existing medical conditions will also require an applicant to obtain health insurance, to avoid it being a strongly negative factor.
In addition to the State Dept rule, President Trump’s Presidential Proclamation, issued October 4th, to take effect November 3, 2019, requires all immigrant visa applicants to prove they will be covered by health insurance within 30 days of their entry into the U.S.
2) Age, being between the ages of 18 and 62 is a positive factor, while being under 18 or over 62 is a negative factor. The support provided to a minor by a parent or legal guardian may offset this negative factor. The CO must consider whether the applicant’s age makes him or her unlikely to obtain work or create higher potential health care costs.
3) Education and skills. The applicant’s level of education, work history, any job skills, certifications or licenses and English proficiency.
4) The size of the household, “family status”. Aside from a few vague words, it is unclear how consular officers are to judge different family sizes. How many children can a family have before it is ‘too big’? Would a single parent household be considered ‘too small’? Again, because the language is vague, different COs will interpret it in very different ways.
5) Assets, resources and financial status. The rule restates the prior test, which is whether household income is at least 125% of the poverty level, as well as how to counts assets towards the income requirement.
However, this part of the rule is made more complicated because in another section, having an income of at least 250% of the federal poverty level is considered a heavily weighted positive factor. Will the 250% become the new standard, rather than the 125%? It is unclear how to reconcile these two aspects of the rule.
6) Not working or being a fulltime student if you have work authorization, lacking a work history, lacking prospects of future employment, are all negative factors. Being a primary caregiver for a family member is considered a positive factor, and it is unclear how these two factors should be balanced one against the other.
7) Public benefits. Not only if the applicant has actually received public assistance, but also whether they have ever even applied (including those who were denied public benefits and never actually received them).
A heavily-weighted negative factor is if the applicant has received or been approved to receive, one or more public benefits for more than 12 months in the aggregate during any 36-month period, or two benefits during a six-month period beginning October 15th 2019, or 36 months prior to adjudication of the applicant’s immigrant visa, whichever is later.
In the past, only cash public assistance was considered. Now the State Dept will consider many forms of non-cash public assistance including any federal, state, local or tribal cash assistance; SSI (Supplemental Security Income); TANF (Temporary Assistance for Needy Families); Food stamps – supplemental nutrition assistance program; Public housing and Section 8.
There are exceptions that allow pregnant women (up to 60 days after giving birth) and children under 21 to receive Medicaid, emergency medicaid, Medicaid received by the disabled; school-based services up through high school. There is an exemption from the public benefit definition for enlisted members of the US Armed Forces, or in the Ready Reserve, and their immediate family members
8) Applying for a USCIS fee waiver is a negative factor. Thus, if you have applied for a USCIS fee waiver in the past, this may be considered a negative factor. Only fee waiver applications after the October 15th effective date will be considered.
The new State Dept rule changes the public charge determination from an objective mathematical formula based on household size and total income, to a subjective decision, “in the opinion of” the CO, using numerous factors, and no clear path on how to apply or balance one factor against another. This will lead to unpredictable, subjective, wildly different decisions and a huge increase in denials of immigrant visas based upon the public charge ground of inadmissibility. It is another way to deny many meritorious immigrant applications, separating families and punishing immigrants for their very existence.
Copyright 2019 © Heidi J Meyers, all rights reserved.
For physicians, as well as for all other foreign nationals, obtaining a green card through the PERM labor certification process actually has three steps and three separate applications: 1) First, is the PERM labor certification, filed with the US Department of Labor; 2) Second, the petition for alien worker, Form I-140 filed with USCIS and 3) Third, the application for adjustment to permanent residency, Form I-485, also filed with USCIS when the priority date is current.
In the first step, the PERM labor certification, the employer has to show that there is a shortage of US workers to do the job. The United States does have a shortage of doctors. Partly because of our aging population, the US expects to have a shortage of 46,900 to 121,900 doctors by 2032, according to the Association of American Medical Colleges. See, https://www.cnbc.com/2019/09/06/americas-aging-population-is-leading-to-a-doctor-shortage-crisis.html.
The employer has to settle on a job description and requirements. However, the employer cannot include requirements which the doctor employee does not already have at the time the application is filed. So, the PERM cannot include requirements that the foreign national doctor anticipates obtaining later, even if in the near future. For example, if the PERM labor certification application includes the requirement that the doctor must be board certified or board eligible (BC/BE), these requirements necessarily include graduate medical training. However, if the physician beneficiary is still in graduate medical training when the PERM is filed, then the application will be denied because the beneficiary foreign national did not meet the employer’s requirements at the time of filing.
If the doctor has been educated abroad rather than in the US, he or she must have their degree recognized by the Educational Commission on Foreign Medical Graduates (ECFMG) and a state medical board as being equivalent to an MD from the United State.
Additionally, the position must be permanent. The US Dept of Labor does not consider graduate medical training positions to be permanent. An employer cannot file a PERM for residency or fellowship positions.
Then, the employer has to file a Prevailing Wage Request with the US Dept of Labor. The prevailing wage is the average wage paid to US workers in the same occupation in the same geographical area, with wages divided up by level of experience, from entry-level positions, Level I, to the most experienced positions, Level 4. The US Department of Labor uses different wages depending upon the doctor’s specialty. For example, there are different wage tables with widely varying wages for gynecologists/obstetricians, family and general practitioners, anesthesiologists, internists, psychiatrists, surgeons, podiatrists, as well as other specialties. It is currently taking the US Dept of Labor about three months to issue prevailing wage determinations.
The employer then has to advertise the job at the higher of either the prevailing wage or the actual wage. If the foreign national’s actual wage is higher than the the wage listed in the prevailing wage determination, the employer has to advertise the position using the higher actual wage. The employer has to place a 30-day job order with the State Dept of Labor, post a Notice of Filing in a conspicuous place in the workplace, and run two Sunday ads in the newspaper of general circulation, and the employer must choose the paper with the largest circulation for their area. Additionally, because it is a professional position, the employer has to use three additional forms of recruitment, which may include trade or professional journals, the Journal of the American Medical Association, among others, the employer’s web site, online job sites, employee recruitment firms, radio and TV ads, etc.
The employer then has to contact and interview all applicants who appear to be qualified for the position and have job related reasons for rejecting any US workers. The employer must wait at least 30 days after all recruitment is completed to file the PERM labor certification. Once the PERM is approved, the employer and physician employee may move on to the next step of filing the Form I-140 petition and if the priority date is current, the application for adjustment to permanent residency, Form I-485.
Copyright 2019 © Heidi J Meyers all rights reserved.