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How could the new rules of inadmissibility on public charge grounds impact our I-829 case?

We are about to file our I-829 petition. Recently we heard that those who have received certain types of public benefits would be defined as "public charges" and will be deemed inadmissible. We also learned that the scope of public benefits under question might extend to certain tax credits and Medicare programs. We used some tax credits during our conditional permanent residency period, but we thought it was our right to do so and we did not expect that this could backfire. Could this impact our I-829 case? What should we do now?

Answers

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    Charles Foster

    Immigration Attorney
    Answered on

    It is doubtful that the use of tax credit through your conditional permanent residency period will have any adverse effect on your ability to remove conditions. Remember, you are already a lawful permanent resident in the United States. When you file your petition Form I-829 to remove conditions, the total focus is whether or not you complied with your commitments in your EB-5 petition Form I-526 to make the required investment and to create the required number of jobs. Furthermore, tax credit and Medicare would not be the type of public charge that would result in you being deemed to be a public charge. Again, you have already acquired your permanent residency.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    The proposed rules are not in effect at this time and it is unlikely they will apply to current pending cases retroactively.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    There hasn't been much guidance, if any, on which "public benefits" would and would not affect immigration processes. Hopefully any such penalties will be prospective rather than retroactive.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The final rule has not yet been published, but the general idea is to create an extended lookback period. DHS proposes reviewing the previous 36 months of benefit use. This lookback period is markedly different from current public charge determinations, which are exclusively prospective. In the new rule, DHS put forward that it will continue making public charge inadmissibility determinations within the context of an immigrant's overall situation, referred to as the "totality of circumstances" test. The test includes consideration of: age, health, family status, assets, resources, financial status, education and skills. A required affidavit of support from a sponsor DHS proposes codifying the totality of circumstances test by using a weighted evaluation system that compiles "positive factors" and "negative factors" to determine whether an immigrant is a public charge. It is not clear your use of tax credits and Medicare programs will bar you as there are numerous factors to evaluate. An EB-5 applicant should generally not have a problem.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You should be fine. Nothing is in effect now just proposed.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Please check the USCIS website. Before being alarmed, please spend a few minutes and read DHS Proposed Rule and how it applies to your particular situation. You might be pleasantly surprised that in your particular case, the benefits you availed yourself to are not included in public charge inadmissibility determination. Also, please read what factors would weigh heavily against a determination that an alien is likely to become a public charge. For example, you will not be categorized as a public charge if your financial assets, resources and support are at least 250 percent of the Federal Poverty Guidelines for a household of your household size or you are authorized to work and are currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of your household size.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The proposed new rules of inadmissibility won't affect any of the pending I-829 cases, including yours, because those rules cannot be retroactively applied.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Tax credits are not a part of the proposed changes in "public charge grounds". Also, the provision has not been implemented yet, so no changes as yet. Public charge would include receipt of public benefits, including cash assistance for income maintenance, Medicaid, Medicare Part D for low-income subsidy, food stamps, public housing, etc.

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