How does the U.S. change on public charge affect my EB-5 application?

The test used to examine a range of factors to determine whether an immigrant is likely to become a public charge. The new rule will change the meaning of the term public charge, redefine and expand the types of benefits considered in public charge determinations, and outline new processes for conducting what is called the “totality of circumstances” test. DHS now proposes to review the previous 36 months of benefit use. This look-back 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 the overall situation of the immigrant, referred to as the “totality of circumstances” test. The test includes consideration of: age, health, family status, assets, resources, financial status, education, skills and a required affidavit of support from a sponsor. Your purchase of insurance through Obamacare for you, your wife and your son, who is a college student, should not on its own result in a determination that you are a public charge. You need to present evidence in the above categories to show how you will not be a burden on the state.

These regulations are still not finalized. There are a lot of grey areas, but it is unlikely that purchasing the marketplace insurance would subject a person to a public charge finding.

Buying any kind of insurance will not affect your EB-5 petition or green cards.

If you purchased insurance through Obamacare, it should not subject you to the "public charge" ground of exclusion, which would make you ineligible for lawful permanent residency. The fact that you have already acquired your permanent residency on a conditional basis would make it even less a possibility.

Right now, the changes are not settled, and the Affordable Care Act is the biggest question. I hope more clarification will come.

To the best of my knowledge, Obamacare and earned income tax credit do not fall under "public charge" since that would entail a "means-tested public benefits" being received that would indicate that the alien would not be able to financially support themselves. If you are processing under an EB-5 investor, your ability to financially support yourself would not be something that needs to be an issue.

The proposed rules on the issue of public charge are still going through rule-making process, meaning they are not final. However, a good scan of the rules does not indicate that the "purchase of insurance coverage through Obamacare" is considered a public charge. Also, neither using the insurance coverage nor application for earned income tax credit is not "a public charge" and should not negatively affect an I-829 application. Advisably, consult an immigration attorney for further analysis.

Hard to know until it is implemented. But unlikely to expect those who are not accepting public benefits.